Remainder inadmissible;Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general};Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage)

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

While driving his pickup van on DATE , the applicant was stopped by the police during a road check . The police discovered a more leniently taxed fuel than diesel oil in the tank of the van .

On DATE the applicant was fined for petty tax fraud through a summary penal order . The form stated , inter alia :

“ PERSON , modus operandi :

Petty tax fraud ( motor vehicle tax misdemeanour ) . [ The applicant ] used as fuel in his car fuel more leniently taxed than diesel oil without having paid due additional tax ( lisävero , tilläggsskatt ) .

Footnote : he had filled the tank himself . ”

The fine amounted to MONEY ( ORG , or MONEY ( ORG ) ) . The summary penal order indicated that LAW , LAW , of LAW ( rikoslaki , strafflagen ; Act no . DATE ) and sections CARDINAL of ORG ( laki moottoriajoneuvoverosta , lagen om skatt på motorfordon ; Act no . CARDINAL/CARDINAL , now repealed ) had been applied . As the applicant did not contest the imposition of the fine , it became final on DATE .

In separate proceedings , and having received the applicant ’s submission in writing on an unspecified date , on DATE ORG ( ajoneuvohallintokeskus , fordonsförvaltningscentralen ) issued the applicant with a fuel fee debit amounting to ORG ( equivalent to ORG CARDINAL,CARDINAL ) on the ground that his pickup van had been run on more leniently taxed fuel than diesel oil without prior notification to ORG . The decision indicated that sections DATE of LAW ( laki polttoainemaksusta ; lagen om bränsleavgift ; Act no . CARDINAL/CARDINAL , now repealed ) had been applied . The decision also included instructions on how to appeal against it and how to apply for a reduction of the imposed amount .

The applicant lodged both an application for a reduction of the fee and an appeal with a view to having the decision overturned , arguing , inter alia , that the fuel fee should have been claimed at the same time as the summary penal order was issued . As it had not been claimed at that time , it was no longer possible to debit the fuel fee in the light of LAW .

On DATE ORG ( verohallitus , skattestyrelsen ) rejected the application for a reduction of the fee . It reasoned :

“ No special reasons provided for by law to grant a reduction have been put forward . ”

The decision indicated that section CARDINAL of LAW had been applied . No appeal lay .

On DATE ORG ( hallinto - oikeus , förvaltningsdomstolen ) , having received the observations of ORG ( veroasiamies , skatteombudet ) and ORG and the applicant ’s observations in reply , rejected the appeal . It reasoned :

“ LAW provides that a fuel fee ( polttoainemaksu , bränsleavgift ) is collected for DATE the vehicle has been continuously located in GPE prior to the noted use , but not for DATE at a time . Section CARDINAL provides that the fuel fee for a pickup van is ORG CARDINAL,CARDINAL [ some EUR CARDINAL ] per diem . Section CARDINAL provides that if the use of more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notice has been given , the fuel fee collected is treble the [ normal ] amount .

The pickup van owned by ORG Jukka PERSON , [ registration no . ] KJM-CARDINAL , has been noted to have been used during DATE using fuel more leniently taxed than diesel oil . PERSON had not informed ORG or the ORG thereof [ in advance ] . In the pre - trial investigation and in his writ of appeal he has conceded that he has used incorrect fuel in his vehicle .

The imposition of a fuel fee in an administrative procedure concerns the imposition of a fee comparable to a tax . What is in issue is not the imposition of a criminal punishment or a sanction in lieu .

The imposition of a fuel fee ... is not in breach of LAW or the Convention .

Despite the reasons for the use submitted by PERSON and despite his financial status , ORG was entitled to impose a fuel fee . The fuel fee amounts to ORG CARDINAL per diem , it was to be imposed in respect of DATE and it was to be trebled . The fuel fee FIM CARDINAL has been imposed in accordance with the law . There is no reason to amend the debiting decision . ”

The decision indicated that sections CARDINAL , CARDINAL , DATE and CARDINAL of LAW and LAW had been applied .

The applicant requested leave to appeal , alleging a breach of LAW .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) refused leave to appeal .

The NORP system relating to the use as motor fuel of more leniently taxed oil than diesel oil is based on CARDINAL main elements . First , the owners or users of motor vehicles are obliged to give prior notice to the authorities of their intention to use such fuel as motor fuel , and to pay additional tax ( section CARDINAL of LAW , which has since been repealed ) and/or a fuel fee ( section CARDINAL of LAW as amended by Act no . CARDINAL/CARDINAL ) . Second , the authorities ensure compliance with those conditions by means of road checks . Tax evasion or attempted tax evasion was punishable under LAW and failure to comply with the notification obligation was punishable as a motor vehicle tax offence ( LAW of LAW ) .

LAW provisions of interest for the present case read :

A vehicle referred to in section CARDINAL shall be subject to a fuel fee as a tax corresponding to fuel tax if a more leniently taxed fuel than diesel oil is used in the vehicle . A fuel fee shall not be collected on the fuel contained in the tank of a vehicle when the vehicle is imported . A fuel fee shall , however , be collected if the fuel contained in the tank of the imported vehicle has been made identifiable as provided by virtue of the Excise Duty on Fuels Act ( Act no . CARDINAL ) . A vehicle in respect of which a notification within the meaning of LAW has been given for collecting additional tax shall not be subject to a fuel fee during the tax period of the additional tax .

If a more leniently taxed fuel than diesel oil is used in a vehicle referred to in section CARDINAL , the owner or holder of the vehicle shall be obliged to notify ORG of such use before using it . In respect of a vehicle imported to GPE , the notification may also be given to the customs authorities .

A fuel fee shall be collected for DATE on which , according to a notification , a more leniently taxed fuel than diesel oil is used in a motor vehicle .

If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle during a time in respect of which no prior notification has been given , a fuel fee shall be collected for DATE on which the vehicle has been continuously located in GPE prior to the use , but not for DATE at a time . If a fuel fee has been imposed on the vehicle , the time shall be counted from DATE following the previous tax period at the earliest . If the date of importing the vehicle to GPE can not be established , the fuel fee shall be collected for a minimum of DATE .

The fuel fee for a pickup van is ORG CARDINAL,CARDINAL [ equivalent to ORG CARDINAL.CARDINAL ] per diem . ...

If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notification under LAW has been given , the fuel fee collected shall be CARDINAL times the normal amount .

The fuel fee shall be collected from the person who was the owner of the vehicle at the time when a more leniently taxed fuel than diesel oil was used in the vehicle . If another person holds the vehicle permanently in his or her possession , the fuel fee shall be collected from this holder . ...

The use of a fuel other than diesel oil shall be presumed if a tank belonging to the fuel system of a vehicle contains a fuel which has been made identifiable pursuant to the legal provisions on light fuel oil . A fuel fee shall be collected irrespective of the amount of such fuel in the vehicle .

For particularly weighty reasons ORG may , on application and on conditions set by ORG , grant exemption from the payment of a fuel fee , penal interest or arrears , and interest due because of deferral of payment .

ORG shall make a decision on the application referred to in subsection CARDINAL if the sum whose removal or return is requested does not exceed FIM CARDINAL [ equivalent to ORG ] . ORG may , however , take the case up for decision if it is of particular significance .

ORG may , on application , defer the payment of a fuel fee . The provisions on the additional tax on the motor vehicle tax shall apply to the conditions of such deferral . ORG may take a case concerning deferral of payment up for decision . In such cases , the Ministry shall determine the conditions of deferral in its decision concerning the application .

A decision made by virtue of this section shall not be subject to appeal .

Illegal evasion of a fuel fee , and attempted evasion thereof , are punishable under LAW , ORG CARDINAL , of LAW . ”

According to the Government PERSON for the enactment of LAW and amendment of section CARDINAL of the Excise Duty on Fuels Act and section CARDINAL of LAW ( no . HE GPE ) , the fuel fee is intended to correspond to the fuel tax which would have accrued if diesel oil had been used as fuel in the vehicle .

Government Bills nos . HE CARDINAL ORG and HE CARDINAL vp note that section CARDINAL of LAW is based on the presumption that the same fuel is used in the vehicle continuously . Since it is usually impossible to provide evidence of the type of fuel used in the vehicle before it is observed by the authorities , or to provide evidence of the extent to which the vehicle has been used , the imposition of the fuel fee has to be based on the time during which the vehicle has been used in GPE . For reasons of equity , however , the period is restricted to DATE at a time .

With regard to section CARDINAL , the ORG submitted that in most cases where a tax appeal is pending ORG refuses tax relief . This also concerns the application of section CARDINAL of LAW . If an application for tax modification has been rejected for this or another reason , the applicant may , notwithstanding the existing decision , file a new modification application with the same authority after the decision on taxation has become final . The Government did not refer to any such decision .

LAW in force at the relevant time was replaced by a LAW no . CARDINAL , with effect from DATE , which was not therefore applicable to the present case ) . Section CARDINAL provides that a fuel fee is imposed for the purpose of preventing the use of a fuel which gives rise to the imposition of a fuel fee , and that the use in vehicles of a fuel which gives rise to the imposition of a fuel fee is prohibited . Section CARDINAL lays down the sums of the fuel fees imposed on different types of cars . Section QUANTITY provides that if a notification has not been made to the competent authority , the fuel fee shall be increased by PERCENT at most . The fuel fee may also be increased by PERCENT at most if the use of the fuel which gives rise to imposing the fuel fee is repeated , or doubled at most if the use of the fuel which gives rise to imposing the fuel fee is particularly aggravated .

The Government Bill for the enactment of the new LAW ( HE CARDINAL , p. CARDINAL ) noted that the use of more leniently taxed fuel led to the issuing of a fuel fee debit and an additional motor vehicle tax and that the aim of this was effectively to prevent the use of fuel other than fuel intended for traffic . Formally , the use of more leniently taxed fuel was not forbidden , but it was subject to fairly severe financial sanctions . The basic structure of LAW and LAW was identical to , for example , LAW , which does not specifically forbid certain unwanted acts but only provides for the consequences of such acts . The only difference was that the sanction applicable to the use of fuels was an administrative sanction collected as a tax . The basic aim of the provisions on additional tax and fuel fee is well established in GPE . The provisions are well - known among motorists and the consequence is that , compared with other countries , more leniently taxed fuel is hardly ever used in road traffic in GPE . The Government PERSON considered that the high level of the fuel fee was necessary with regard to the preventive effect of the sanctions system .

LAW , ORG CARDINAL , of the Penal Code provide :

A person who

( CARDINAL ) gives a taxation authority false information on a fact that influences the assessment of tax ,

( CARDINAL ) files a tax return concealing a fact that influences the assessment of tax ,

( CARDINAL ) for the purpose of avoiding tax , fails to observe a duty pertaining to taxation , influencing the assessment of tax , or

( CARDINAL ) acts otherwise fraudulently ,

and thereby causes or attempts to cause a tax not to be assessed , a tax to be assessed too low or a tax to be unduly refunded , shall be sentenced for tax fraud to a fine or to imprisonment for DATE .

If in the tax fraud

( CARDINAL ) considerable financial benefit is sought or

( CARDINAL ) the offence is committed in a particularly methodical manner and the tax fraud is aggravated also when assessed as a whole , the offender shall be sentenced for aggravated tax fraud to imprisonment for DATE and at DATE .

( CARDINAL ) If the tax fraud , when assessed as a whole , with due consideration to the amount of financial benefit sought and the other circumstances connected with the offence , is to be deemed petty , the offender shall be sentenced for petty tax fraud to a fine .

( CARDINAL ) If a punitive tax increase is deemed a sufficient sanction , the report of , or prosecution or punishment for , petty tax fraud may be waived . ”


OFFERHAUS and OFFERHAUS v. THE NETHERLANDS

The applicants are GPE nationals , born in DATE and DATE respectively and living in GPE and GPE respectively . They are represented before the ORG by Mr G.A. Offerhaus , a lawyer practising in GPE .

The applicants each held CARDINAL shares in a GPE public limited company ( Naamloze Vennootschap ) , ORG , then the biggest insurance company in the GPE .

In DATE the boards of directors of ORG and a bank , the public limited company ORG , set up a holding company , ORG ( better known as ING ) , with a view to obtaining shares in ORG and ORG in return for ING shares . After having initially made an unsuccessful offer to shareholders of the CARDINAL existing companies , ING succeeded in DATE in obtaining the vast majority of all outstanding shares .

The applicants were among a number of minority shareholders who refused to part willingly with their shareholdings in ORG .

On various dates in DATE ING summoned these minority shareholders to appear before ORG ( Ondernemingskamer ) of ORG ( Gerechtshof ) of GPE . ING asked ORG to order the minority shareholders to hand over the shares and to set a price per share .

Of the CARDINAL applicants only PERSON Helena Florentina Offerhaus was represented in the ensuing proceedings . She did not object to handing over her shares to ING but asked that the price per share be set at MONEY ( GPE guilders ) .

ORG gave judgment on DATE . It ordered the minority shareholders to hand their shares over to ING against payment of NLG CARDINAL plus statutory interest over that sum from CARDINAL DATE up until the date on which the handover took place but minus any dividends paid during that period . This price was based on the rate at which ORG had offered to exchange ORG shares for its own , and the price at which ING shares were traded at the stock exchange on DATE .

The applicants appealed on points of law ( cassatie ) to ORG ( PERSON ) . Insofar as is relevant here , they complained about the way in which the price per share had been calculated . In their view , the basis for the calculation should not have been the price at which the shares in question had been traded on the stock exchange but the takeover value of the enterprise divided by the number of shares ( the intrinsic value ) ; this would have resulted in a higher price per share .

On DATE ORG gave judgment . It decided to dismiss the appeal , finding that it was reasonable to take the price at which shares were traded on the stock exchange as indicative of their market value and noting that the exchange rate of ORG shares against ORG shares had not been called into question . Insofar as the applicants relied on LAW No . CARDINAL , ORG held :

“ CARDINAL . The cassation plea further argues that , on ground of LAW No . CARDINAL to the LAW , the shareholders < concerned > can claim an exchange value that has been determined according to the most advantageous manner of calculation of the value .

CARDINAL.CARDINAL.CARDINAL . Shareholders having to hand over their shares are entitled to a real price for their shares . It can not be derived from the aforementioned provision that that price should be another price than this price , and in particular not that always that price should be considered which , according to ( theoretical ) calculations , would attain the highest result . Neither the statutory rules on share handovers , nor - as in fact in the present case - ORG seek to compensate more than the “ real ” value of the shares . There is no violation of LAW No . CARDINAL on this point , so that this part of the cassation plea also fails .

It is not stated when precisely the applicants eventually handed over their shares to ING and how much they were actually paid . They do allege , however , that at that moment the price at which the shares concerned were traded at the stock exchange was considerably higher than that at which they had been valued by ORG plus statutory interest .

Article CARDINAL § CARDINAL of LAW provides that a shareholder who on his own account provides PERCENT of the subscribed capital ( geplaatst kapitaal ) in a public limited company is entitled to seek an order addressed to the collected minority shareholders for the compulsory handover of the remainder of the shares . Article CARDINAL § CARDINAL provides that no such handover shall be ordered inter alia if CARDINAL of the minority shareholders would thereby incur disproportionate financial loss . Article CARDINAL § CARDINAL requires the competent court to set a price for the shares at a specific date . To this price must be added the statutory interest up until the date of the actual handover , but dividends paid out after the date set by the court must be deducted . The court may of its own motion obtain expert advice .

It appears from the Explanatory Memorandum to the Act which enacted that article that the intention of the legislature was to protect the holding company against the undue expense and complication which could be caused by such minority shareholdings : for instance , separate DATE meetings of shareholders had to be held ; DATE reports had to be more comprehensive ; and the company concerned could not , for tax purposes , be considered to form a single taxable entity . It is stated that an arrangement which ensures that the minority shareholders receive a fair price does not cause them loss : thus , if no agreement on the price is reached the court is not bound by the figure proposed by the majority shareholder but sets a figure of its own . The price for the shares will normally be calculated on the basis of the company ’s balance sheet but may be determined as per any specific date chosen by the court ( ORG of ORG , parliamentary DATE , QUANTITY , no . CARDINAL , pages CARDINAL and following ) .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , PERSON . He is represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by PERSON , ORG at ORG .

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

NORP On DATE the applicant and his late wife sued the military unit No . CARDINAL claiming compensation of non - pecuniary damage and various costs resulting from serious bodily injuries caused to their son during his military service in GPE and his ensuing death .

On DATE ORG of GPE granted their claim in part . The defendant military unit was ordered to pay the claimants a total of MONEY ( RUB ) in compensation of the non - pecuniary damage and funeral costs . On DATE the judgment became final .

NORP Since that time the claimants lodged repeated requests for enforcement of the judgment with various State authorities including the commander of the defendant military unit , ORG , the bailiffs and ORG . However , the judgment in their favour remained unenforced .

On DATE the applicant ’s wife died .

On an unspecified date the defendant military unit was dismantled and the applicant reapplied to ORG requesting an order for the awarded sums to be paid by ORG .

On DATE ORG ordered that the judicial awards of DATE be paid to the applicant by ORG . The award of RUB PERSON was credited to the applicant ’s bank account on DATE .

The applicant brought a claim seeking compensation for the lengthy failure to enforce the judgment in his favour . On CARDINAL DATE ORG ruled in favour of the applicant and acknowledged a violation of his right to enforcement of the judgment of DATE within a reasonable time and his right to peaceful possession of property . ORG was ordered to pay RUB MONEY ( DATE ( ORG ) ) in compensation and RUB CARDINAL ( EUR CARDINAL ) in costs and expenses . The court took account of the enforcement delay , the nature of the award , its significance for the applicant , and the efforts made to obtain the payment .

On DATE ORG of GPE upheld the judgment on appeal .

The compensation of ORG DATE and costs and expenses of LAW were transferred to the applicant ’s bank account on DATE and DATE respectively .

On DATE the ORG delivered the Burdov ( no . CARDINAL ) v. GPE pilot judgment ( no . CARDINAL , ECHR DATE ( extracts ) ) . It ordered the respondent ORG to set up an effective domestic remedy which would secure adequate and sufficient redress for non - enforcement or delayed enforcement of domestic judgments .

Federal Law № CARDINAL-ФЗ of DATE ( “ LAW ” ) , which entered in force on DATE , was adopted in response to the abovementioned judgment . It provides that in case of a violation of the right to enforcement of a final judgment within a reasonable time , the NORP citizens are entitled to seek compensation of non - pecuniary damage in NORP courts . ORG CARDINAL-ФЗ adopted on DATE introduced the relevant changes in the NORP legislation .

Section CARDINAL § CARDINAL of LAW provides that everyone who has a pending application before ORG concerning a complaint of the nature described in the law has DATE to bring the complaint to a domestic court , provided ORG did not declare the application admissible or decide it on the merits .


The applicant , Mr Yuriy Vyeniaminovych Arkhipov , is a NORP national , who was born in DATE . He is currently serving a prison sentence . He is represented before the ORG by his mother , PERSON , and Mr Sergiy Stetsko , a human rights activist .

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

On DATE the ORG sentenced the applicant to DATE administrative arrest following his conviction for failure to comply with the lawful demands of police officers ( LAW ) .

DATE the applicant took revenge on the judge of ORG by setting fire to his house . However , only minor damage was caused .

On DATE the applicant was detained on suspicion of having been involved in an arson attack on TIME and DATE . The applicant was held in ORG . On DATE the applicant was released .

On DATE the applicant was again detained by the police on suspicion of having been involved in an arson attack on DATE . On DATE he was released . Before being released the applicant , in the presence of his lawyer , pleaded guilty to the offence .

On DATE the police decided to conduct a joint investigation into the arson offences committed on CARDINAL and CARDINAL DATE .

On DATE the police reclassified the applicant 's acts as an attempt to destroy the property of the judge in revenge for his conviction .

On DATE the applicant was detained for a third time in view of the criminal proceedings pending against him .

On DATE the applicant told the investigators that he was not guilty .

On DATE the prosecution service completed its investigation into the facts of the case .

On DATE the case file was remitted to ORG for consideration on the merits . The applicant remained in detention .

In DATE ORG commenced its consideration of the merits of the case .

On DATE ORG remitted the case for an additional investigation and ordered that the applicant was to remain in custody .

On DATE ORG upheld the decision to remit the case for additional investigation .

On DATE the PERSON prosecution service undertook the additional investigation into the case .

On DATE ORG sentenced the applicant to DATE imprisonment following his conviction for the destruction of the judge 's property in revenge for his conviction . The court examined the applicant 's complaints that he had been ill - treated by police officers , but found no evidence of this . It stated that the applicant had not been held in custody DATE and DATE and thus had had an opportunity to complain of the alleged his ill - treatment , either to the court or to the prosecution . However , he had failed to avail himself of these possibilities . Furthermore , the applicant had not submitted any medical evidence in support of his allegations and had failed , moreover , to prove that he had sustained injuries at the hands of the police .

On DATE the applicant lodged an appeal against the judgment of DATE . On DATE ORG refused the applicant leave to appeal on account of his failure to comply with the rules governing the form and content of an appeal . The applicant was allowed time to rectify the shortcomings . On DATE the applicant 's appeal was left without consideration because of his failure to comply with the ruling of CARDINAL DATE and to provide the relevant number of copies of his appeal to the parties .

On DATE the applicant complained about the ruling of CARDINAL DATE to ORG . On DATE that court quashed the ruling on the ground that it was unlawful . It also decided that it had jurisdiction to hear the applicant 's appeal . The applicant remained in detention .

On DATE ORG upheld the judgment of ORG of DATE and dismissed the applicant 's appeal as being unsubstantiated . It confirmed the decision of the first - instance court rejecting the applicant 's allegations of ill - treatment .

“ ... ORG of GPE is highest judicial body in the system of courts of general jurisdiction ...

Courts of appeal and local courts operate in accordance with the law . ”

“ The following decisions may be reviewed in cassation proceedings :

CARDINAL ) judgments , rulings and resolutions of an appellate court rendered by it as a court of first instance ; and

CARDINAL ) judgments and resolutions of an appellate court rendered by it in appeal proceedings .

Judgments and resolutions of district ( city ) courts , inter - district ( circuit ) courts and garrison military courts may be also reviewed in cassation proceedings , as well as rulings of appellate courts rendered with regard to those judgments and resolutions . ”

“ Cassation appeals against the court decisions referred to in part one of LAW may be lodged by the persons defined by LAW .

Cassation appeals against the court decisions referred to in part CARDINAL of LAW may be lodged by :

CARDINAL ) a convicted person , or his / her legal representative or defence counsel in respect of provisions which concern the interests of the convicted person ;

CARDINAL ) an acquitted person or his / her legal representative or defence counsel in respect of the operative provisions of the acquittal ;

CARDINAL ) a plaintiff , respondent or their representatives in respect of the provisions which concern a settlement of the claim ;

CARDINAL ) a victim or his / her representative in respect of the provisions which concern the victim 's interests . ...

Persons who are entitled to lodge a cassation appeal or a cassation petition may be apprised of the materials of the court case - file in order to decide whether or not to lodge a cassation complaint or petition . ” ( As amended according to LAW . CARDINAL of DATE )

“ Cassation complaints and petitions are examined by :

CARDINAL ) a panel of judges of ORG of GPE in respect of court decisions rendered by ORG , the regions and the GPE and LOC city courts , and in respect of judgments of district ( city ) courts and inter - district ( circuit ) courts ; ... ”

“ Cassation appeals and petitions against the court decisions referred to in part one of LAW may be lodged within DATE from the date of delivery of the judgment , ruling or resolution complained of , and where lodged by a convicted person who is held in custody within the same period from the date on which he has been served with a copy of the judgment or resolution .

Cassation appeals against the court decisions referred to in paragraph CARDINAL of Article CARDINAL of this Code may be lodged within DATE from the date of their entry into force .

During the period specified for lodging a cassation complaint , no one , save the court of cassation , shall request or obtain the case file from the court executing the court decision .

In the event that the period prescribed by parts CARDINAL and CARDINAL of this Article for lodging a complaint or filing a petition has been missed and there is no application for it to be extended , the complaint or petition shall be held by a judge 's resolution not to be subject to examination . This period may be extended in the instances and in accordance with the procedure provided for by LAW . ”

“ The case file together with the cassation appeal and/or petition against a judicial decision mentioned in LAW shall be remitted for consideration to the court of cassation once the case file has been deposited with the court .

A cassation appeal or petition lodged by the prosecutor against a judicial decision mentioned in LAW shall be referred to a judge of the court of cassation , who shall decide , within DATE from the date of receipt , on the initiation of the proceedings upon the cassation appeal . The cassation proceedings shall be initiated unless the cassation appeal does not comply with the requirements of LAW , CARDINAL § CARDINAL , CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL of this Code , for which reasons the appeal in cassation shall not be considered by the court of cassation . The judge shall adopt a resolution with regard to the cassation appeal , a copy of which shall be sent to the prosecutor or the person lodging a cassation appeal . The resolution is not subject to appeal . A refusal to initiate cassation proceedings is not an obstacle to review of the case once the person who lodged a cassation appeal has rectified any mistake in it and has complied with the time - limits envisaged by LAW , or if it is lodged not DATE from the date of receipt of the copy of the resolution on refusal to initiate cassation proceedings .

The judge who decided on the initiation of the criminal proceedings may also decide to suspend the enforcement of the judgment in the case until the cassation appeal has been considered ; this procedure does not concern decisions mentioned in LAW . ”

“ The lodging of cassation appeals or petitions against a judicial decision mentioned in LAW suspends its entry into force .

The lodging of cassation appeals or petitions against a judicial decision mentioned in LAW does not suspend its entry into force . ”

“ Cassation appeals and petitions against court decisions referred to in part one of LAW shall be examined and notice of that examination served on the prosecutor and the persons referred to in LAW .

Cassation appeals and petitions against court decisions referred to in part CARDINAL of LAW shall be examined within DATE of receipt by the cassation court composed of CARDINAL judges with the participation of a prosecutor . The court shall either assign the case for examination and must notify the persons referred to in LAW accordingly or dismiss it .

The case assigned for examination , with notice served on the prosecutor and the persons referred to in LAW , shall be examined by the cassation court composed of CARDINAL judges with the participation of a prosecutor in accordance with the procedure provided for by parts CARDINAL , CARDINAL and CARDINAL of LAW .

The deliberations of the cassation court 's judges shall be conducted in accordance with the requirements provided for by Articles CARDINAL and CARDINAL of this Code . ”

“ As a result of the examination of a case in accordance with the cassation procedure , the court shall take CARDINAL of the following decisions :

CARDINAL ) uphold the judgment , ruling or resolution and dismiss the cassation complaint or petition ;

CARDINAL ) reverse the judgment , ruling and resolution refer the case for a fresh investigation or trial or appeal hearing ;

CARDINAL ) reverse the judgment , ruling or resolution and terminate the proceedings in a case ;

CARDINAL ) modify the judgment , ruling or resolution .

In the event of withdrawal of a cassation complaint or petition , the cassation court shall issue a ruling terminating the cassation proceedings unless the decision has been appealed against by other participants in the trial in accordance with the cassation procedure . ”

“ Grounds for reversal or modification of a judgment , ruling or resolution shall be :

CARDINAL ) substantial violation of the law of criminal procedure ;

CARDINAL ) incorrect application of the criminal law ;

CARDINAL ) disproportionate punishment imposed on the convicted person in conjunction with the gravity of the crime .

In resolving the issue of availability of the grounds referred to in part CARDINAL of this LAW , a court of cassation shall be guided by ORG CARDINAL - CARDINAL of this Code .

A court of cassation shall have no powers to reverse a judgment of acquittal , a ruling or resolution terminating proceedings in the case merely on the grounds of a substantial violation of the rights of the accused . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently in detention in Lingen prison in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE , GPE .

On DATE the applicant committed an armed robbery , killing a money courier and a bystander who had tried to prevent him from fleeing .

On DATE the applicant was arrested in GPE , where he subsequently served a prison sentence for other criminal offences .

On an unspecified date the NORP authorities requested the applicant ’s temporary surrender according to LAW law below ) for the purpose of conducting criminal proceedings against him . As the applicant had already served the main part of his NORP prison sentence , the public prosecutor expected that the NORP authorities might abstain from requesting the applicant ’s return to GPE following termination of criminal proceedings in GPE . On DATE the applicant was extradited to GPE .

On DATE ORG ( Landgericht ) convicted the applicant of CARDINAL counts of murder and severe robbery , found that his guilt was of a particular gravity ( besondere PERSON der PERSON ) , and sentenced him to life imprisonment . With regard to the gravity of the applicant ’s guilt , ORG noted that the applicant had committed several serious criminal offences within a short period of time . By shooting CARDINAL persons he had fulfilled CARDINAL criteria qualifying his actions as murder ( killing from greed and in order to make another crime possible or cover it up ) . Furthermore , he had committed a severe robbery .

Following the applicant ’s conviction in GPE , the NORP authorities abstained from requesting his return to GPE . The applicant later on requested the NORP authorities to demand a diplomatic assurance from the NORP authorities not to impose a life sentence on him . The NORP authorities rejected this request on the grounds that the extradition proceedings had been terminated . The applicant is currently serving his prison sentence in a prison hospital in GPE .

In DATE the applicant was diagnosed as being infected with HIV . The applicant assumes that he contracted the virus in DATE when he had to undergo several operations during his detention in GPE .

According to an expert opinion submitted by the medical expert PERSON on DATE , the applicant suffered from full - blown AIDS . While the applicant did not suffer from any acute new diseases , his immune deficiency could be expected to progress , entailing the risk of severe HIV - associated infections . The poor state of the applicant ’s immune system was probably due to the fact that the applicant had , in the past , not always taken the prescribed anti - viral medication , as he had suffered from side effects and from a subjective inability to swallow the medication . The difficulty to regularly administer medication considerably shortened the applicant ’s life - expectancy . A further limitation derived from the severe immune deficiency , which could , at any time , entail serious opportunistic infections or tumours . Under these circumstances , the expert estimated the applicant ’s life expectancy to DATE . This estimation could only be revised if it was possible to successfully implement a therapy which was regularly taken by the applicant .

According to the applicant ’s submissions , he had , in the meantime , been admitted to intensive care , as his state of health had dramatically deteriorated .

On DATE ORG , sitting as an execution of sentence chamber ( PERSON ) , having heard the applicant , the public prosecutor and the prison authority , rejected the applicant ’s request for the remainder of his sentence to be suspended under section CARDINALa of LAW ( see Relevant law below ) .

On DATE , on the applicant ’s complaint , ORG ( Oberlandesgericht ) quashed this decision on the ground that ORG had failed to determine from which date on the applicant would be eligible for parole , having regard to the gravity of his guilt , and remitted the case to ORG .

On DATE ORG , once again , rejected the applicant ’s request . It noted that the applicant had served DATE of his sentence on DATE . It determined that the gravity of the guilt – notwithstanding other possibilities of suspending the sentence DATE warranted the execution of the sentence for DATE as from DATE .

ORG found that the gravity of the applicant ’s guilt required serving a considerably longer period than the minimum sentence of DATE . It further noted that the applicant had not shown any remorse and that he had not attempted to expiate his deeds . There was no indication of a positive development of the applicant ’s personality .

Turning to the applicant ’s illness , ORG considered that the applicant ’s state of health played an important role . Referring to the LAW case - law of ORG ( Bundesverfassungsgericht ) , ORG found that the applicant could not be deprived of the possibility of being released from prison while still alive . It would be incompatible with human dignity to reduce the possibility of release to a remaining life - span spent in physical decline and approaching death .

Referring to the expert opinion submitted by PERSON and to a further expert opinion submitted by ORG on DATE , the chamber estimated the applicant ’s life expectancy to DATE . However , this assessment was based on the assumption that the applicant did not regularly take his prescribed medication . The life expectancy could be prolonged if it was possible to successfully implement a therapy which was regularly taken by the applicant .

Taking into account the above circumstances , the chamber considered that the gravity of the applicant ’s guilt warranted a further execution of the sentence for DATE .

Apart from these considerations , the chamber considered that a suspension of the sentence could not be justified having regard to the interest in public security . The ORG noted that the applicant had , during his detention , on several occasions threatened prison staff , although these threats had not been followed by any actions . According to an expert report drafted by the prison ’s psychological service on DATE the applicant did not show any remorse or feelings of guilt . He felt innocently convicted and tried to minimise his guilt . The fact that during DATE the applicant had calmed down was not due to any feeling of remorse , but to his progressing illness . The psychological service concluded that the applicant posed a considerable danger to the public . ORG followed this assessment .

According to ORG , the applicant ’s state of health would not hinder him from committing even serious crimes . Furthermore , there was the risk that the applicant could have lost any restraint , as he had nothing left to lose .

On DATE ORG confirmed ORG decision and rejected the applicant ’s complaint . Insofar as the applicant complained about the circumstances of his extradition , his complaint was unfounded . During the extradition proceedings the length of the execution of the sentence had not been limited to DATE .

On DATE ORG , sitting as a chamber of CARDINAL judges , refused to admit the applicant ’s complaint against the decision of ORG of DATE and of ORG of DATE for adjudication .

ORG considered that the applicant ’s submissions only partly fulfilled the admissibility requirements laid down in sections CARDINAL § DATE of its Rules of Procedure . It noted , in particular , that the applicant had failed to submit ORG expert opinion , the submissions of the prison authorities and the expert opinion by the psychological service on which ORG had to a considerable degree based its decision .

Insofar as the applicant complained that the circumstances of his extradition had been incompatible with LAW , his submissions did not suffice for an examination by ORG . The content of the terms on which the GPE had agreed prior to the extradition was only reported in a very general way ; the applicant had failed , in particular , to submit or to report the content of a decision taken in DATE by an unspecified NORP authority , which eventually made possible the execution of the sentence in GPE .

ORG considered the remainder of the applicant ’s complaint to be unfounded . ORG confirmed that the respect for human dignity demanded that any convicted person had to be granted the concrete and , in principle , realistic chance to regain his or her personal liberty .

With respect to the circumstances of the applicant ’s case that court found as follows :

“ The impugned decisions are , provided the further proceedings are conducted in a constitutional way , to be regarded as still compatible with the LAW .

aa ) The LAW did not oblige the lower courts to immediately suspend the remaining prison sentence . A release after having served a DATE years’ prison sentence would have complied with the procedure prescribed in case of an execution of a life sentence without particular gravity of the defendant ’s guilt ( section FAC subsection CARDINAL sentences CARDINAL and CARDINAL of LAW ) . In the present case , however , the first instance court had established the particular gravity of the guilt , and the execution of sentence chamber has faultlessly confirmed the subsistence of this guilt , having regard to the criminal offences committed by the complainant .

The fact that the lower courts assumed that the complainant was dangerous also militated against an immediate release . The constitutional complaint does not sufficiently explain why the complainant ’s illness should exclude this dangerousness . Quite apart from the fact that the complainant could commit criminal offences with minimal physical effort by using a firearm , the opinion submitted by the expert PERSON does not show any acute pathological findings , notwithstanding the high probability of contracting serious diseases in the future .

bb ) The finding that the particular gravity of the complainant ’s guilt required that the sentence be executed for DATE is still acceptable from a constitutional point of view , taking into account the reservations mentioned by the court and provided that the further proceedings are conducted in a constitutional way .

The lower courts have not misjudged the constitutional standards and were , in particular , aware of the fact that it would be incompatible with human dignity to reduce the concrete and in principle realistic chance of release to a remaining life - span spent in physical decline and approaching death . Apart from the fact that the life - expectancy of DATE as estimated by the expert PERSON is not completely exhausted by the envisaged further execution of the sentence for DATE , the courts were allowed to take into account the possibility of a prolongation of the life - expectancy , provided medication could be successfully implemented with the complainant ’s collaboration .

... The complainant does not have a positive legal prognosis . In the case of criminal offences which are sanctioned by a life sentence , as is the case with murder , the need for public security has a high importance when establishing a legal prognosis . A suspension of the sentence must not lead to recidivist murders . It does not appear entirely far - fetched when the lower courts assumed that the complainant ’s dangerousness was enhanced by the fact that he had nothing left to lose . It is difficult for ORG to examine this matter as the applicant did not submit the comments made by the psychological service and by the prison authority . This concerns in particular the question whether it would have been necessary to hear an external expert .

The determination of the prospective duration of execution is still acceptable , as the possibility to react to a change of the relevant circumstances – as would be required by the constitution – is expressly reserved . It has to be assumed that the prison authorities will , without delay , inform the public prosecutor and the chamber in charge of the execution of sentences in case of any changes of the relevant circumstances , in particular of the complainant ’s life expectancy and legal prognosis . In order to prepare his release , it will also have to be considered to grant relaxation measures in the execution of sentence . ”

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

Article CARDINAL of LAW ( ETS no . CARDINAL ) reads as follows :

“ ( CARDINAL ) The requested ORG may , after making its decision on the request for extradition , postpone the surrender of the person claimed in order that he may be proceeded against by that ORG or , if he has already been convicted , in order that he may serve his sentence in the territory of that ORG for an offence other than that for which extradition is requested .

( CARDINAL ) The requested ORG may , instead of postponing surrender , temporarily surrender the person claimed to the requesting ORG in accordance with conditions to be determined by mutual agreement between the Parties . ”

In DATE the ORG ruled that the respect for human dignity ( LAW ) required that any person serving a life - sentence must have , in principle , a chance to regain personal liberty ( CARDINAL BvL CARDINAL , published in the official collection of the decisions of ORG , volume CARDINAL , p. CARDINAL ) .

In order to implement this decision , the NORP legislator introduced the following section into LAW :

“ ( CARDINAL ) The court shall suspend execution of the remainder of a punishment of imprisonment for life and grant probation , if :

DATE of the punishment have been served ;

the particular gravity of the convicted person ’s guilt does not require its continued execution ; and

the requirements of LAW subsection ( CARDINAL ) , sent . CARDINAL , CARDINAL . CARDINAL and CARDINAL are present .

Section CARDINAL subsection ( CARDINAL ) , sent . CARDINAL ... shall apply accordingly . ”

The provisions referred to above read as follows :

“ ( CARDINAL ) The court shall suspend the execution of the remainder of a fixed term of imprisonment and grant probation , if :

this can be justified upon consideration of the security interests of the general public ; and

the convicted person consents .

To be considered in making the decision shall be , in particular , the personality of the convicted person , his previous history , the circumstances of his act , the importance of the legal interest threatened in case of recidivism , the conduct of the convicted person while serving his sentence , his living conditions and the effects which can be expected as a result of the suspension . ”

The relevant provisions of the Rules of Procedure of ORG ( Bundesverfassungsgerichtsgesetz ) read as follows :

“ Applications for the institution of proceedings must be submitted in writing to ORG . The reasons must be stated ; the requisite evidence must be specified . ”

“ The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed . ”

According to the consistent case - law of ORG , a complainant is obliged to submit all relevant material within the statutory time - limit of DATE .


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Gdańsk . ORG ( “ the Government ” ) were represented by their Agent , Mr J. Wołąsiewicz , of ORG .

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

On DATE the applicant was arrested by the police .

On DATE the ORG decided to detain the applicant on suspicion of having committed several burglaries at ORG , acting as part of an organised criminal gang . The court considered , given the likelihood that a severe sentence would be imposed on the applicant , that there was a risk that he would interfere with the proper course of the proceedings .

On DATE the ORG dismissed a request by the applicant to be released from detention , relying on the ground that the applicant ’s brother was being sought by the police .

On DATE ORG extended the applicant ’s detention , relying on the ground given previously . It noted , however , that since his arrest no investigative actions had been taken ; thus , it instructed the prosecuting authorities to expedite the investigation .

On DATE the applicant and CARDINAL co - accused were indicted before ORG .

On DATE the detention of the applicant and CARDINAL co - accused was further extended . ORG stated that the trial had not yet started and that the accused had not been heard ; thus their detention was necessary to secure the proper course of the proceedings .

The first hearing was held on DATE . Subsequently , the trial court held hearings in DATE , DATE .

On DATE , CARDINAL DATE and DATE the trial court extended the applicant ’s detention . In each decision the courts stated that the grounds for the applicant ’s detention were still valid and pointed to the necessity of obtaining an expert opinon in respect of CARDINAL of the witnesses .

A request by the applicant to be released from detention was refused by ORG on DATE . The court based its decision on identical grounds to those given on the CARDINAL previous occasions .

On DATE the ORG decided to release the applicant and the co - accused from pre - trial detention .

On DATE the ORG dismissed an appeal by the prosecutor and upheld the decision to release the applicant . The court stated that , for reasons beyond the control of the trial court , it had not been possible to conclude the trial . Moreover , keeping the applicant in detention was no longer absolutely necessary in order to secure the proper course of the proceedings .

The proceedings are still pending before the trial court .

The relevant domestic law and practice concerning detention during judicial proceedings ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention , and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .


The applicant is an NORP national , born in DATE and living in GPE .

A.

G.S and GPE were the owners of an apartment in GPE , which they had let to GPE

In a writ served on the tenant on DATE they communicated their intention to terminate the lease and summoned him to appear before the Florence Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the LOC must be vacated by DATE . Enforcement proceedings were subsequently started .

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

On DATE , a notice was served on the tenant requiring him to vacate the premises .

On DATE , a notice was served 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 , DATE and DATE , but to no avail , as the applicant was never granted the assistance of the police enforcing the order for possession .

In the meantime , on DATE , the applicant had made a statutory declaration that he urgently required the premises as accommodation for himself .

On DATE , the applicant and the tenant reached an agreement , as a result of which , on DATE , the tenant vacated the LOC .

B. Relevant domestic law

The relevant domestic law is described in the ORG GPE judgment of DATE , to be published in the ORG ’s official reports , § § DATE .


The applicant , Mr PERSON , is a NORP national of GPE ethnic origin . He was born in DATE and lives in LOC . He was represented before the Court by Mr A. Dobrushi of ORG in GPE and Mr C. Igboanusi of ORG in GPE .

On DATE CARDINAL ORG officers brought the applicant to their LOC at the LOC railway station for the alleged purpose of checking his identity papers . On the way to the police station the officers insulted the applicant with racist remarks and CARDINAL of them hit him across the face .

During the interrogation at the police station CARDINAL officer kicked the applicant in the head , slapped him across the face , and while the applicant was on the floor , the officers kicked him repeatedly in the chest . The officers stole CARDINAL NORP korunas ( SKK ) from the applicant .

The applicant suffered a number of injuries including severe injuries to CARDINAL kidney , contusion of his chest and face and a broken rib . He had to be treated and remained incapable to work for DATE after the incident .

On DATE the applicant tried to file a complaint , but the Railway Police officers at the Zvolen refused to accept it . On DATE the applicant filed a complaint with ORG in Zvolen . The latter transferred the complaint to ORG in Zvolen . He also informed ORG at ORG ’s regional office in LOC of the police ORG refusal to receive the applicant ’s complaint on DATE .

On DATE a ORG investigator informed the applicant that the matter was being treated as an internal disciplinary investigation as there was no indication that an offence had been committed . In reply to the applicant ’s complaint , the public prosecutor ordered ORG to start criminal proceedings against CARDINAL officers for abuse of authority .

On DATE ORG in Zvolen issued a summary penal order in which it convicted CARDINAL ORG officer of abuse of authority and of causing intentional bodily harm while carrying out his duties . The court imposed a fine of SKK CARDINAL,CARDINAL ( the equivalent of MONEY ) on the convicted officer and ordered the latter to pay SKK CARDINAL in damages to the applicant . The applicant was referred to a civil court with the remainder of his claim for damages . The other CARDINAL railway officers involved had not been charged with any offence . In accordance with the relevant provisions of LAW , the penal order was issued by a single judge without any prior hearing . It contained a notice about the remedies available the relevant part of which reads as follows :

“ The accused or other persons entitled to do so on his behalf , the public prosecutor and the injured person to whom compensation for damage was granted can file an objection to the penal order within DATE from its service . Upon filing of an objection , the penal order shall be quashed and a main hearing shall be held in the case .

The injured person can file an objection to the operative part [ of the penal order ] by which compensation for damage was granted to him ...

If no objection is filed within the period fixed for that purpose , the penal order shall become final and enforceable . ”

On DATE the applicant challenged the penal order by means of a submission entitled an “ appeal ” . He argued , inter alia , that he had been injured by CARDINAL officers and that a sum of money had been stolen from him .

The relevant part of the penal order which concerned the conviction of the accused and the sentence imposed on him became final on DATE . ORG did not notify the applicant of this fact of its own initiative as this was not required by the law .

In a letter dated DATE the ORG judge informed the applicant that he had no right to file an appeal as regards the court ’s finding as to the guilt of the accused police officer and as regards the sentence imposed .

On DATE ORG delivered a decision in which it referred the applicant to a civil court with his claim for damages . Reference was made to Article CARDINAL ) of LAW .

On DATE the applicant filed a complaint to ORG . He alleged that by its above conduct ORG in Zvolen had violated his rights under LAW . On DATE the applicant extended his complaint in that he also alleged a violation of Articles CARDINAL and CARDINAL § CARDINAL of the Convention , of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment and of LAW . He requested that the penal order should be quashed and ORG in Zvolen ordered to proceed with the case .

ORG dismissed the complaint on DATE as having been filed outside the statutory DATE time - limit . The decision referred to section CARDINAL(CARDINAL ) of LAW .

ORG noted that the applicant did not allege that the penal order issued by ORG in Zvolen had not been served on him . The penal order clearly indicated which remedies the applicant could use against it and , accordingly , it was evident from it that under the relevant law the applicant lacked standing to challenge the decision as to culpability of the accused and as to the sentence imposed on the latter . The applicant should have sought protection of his fundamental rights within DATE from the final effect of the penal order .

Article CARDINAL of the LAW , as in effect from DATE , provides as follows :

“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

When ORG finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of a failure to act , ORG may order [ the authority ] which violated the rights or freedoms in question to take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order the authority concerned to abstain from violating fundamental rights and freedoms ... or , where appropriate , order those who violated the rights or freedoms set out in paragraph CARDINAL to restore the situation existing prior to the violation .

NORP In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . ” ...

Section CARDINAL(CARDINAL ) of LAW provides that a constitutional complaint can be filed within DATE from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given . As regards the measures and other interferences , the above period commences when the complainant could have become aware of them .

Pursuant to LAW , a single judge can issue a penal order , without a hearing , where the evidence obtained permits the establishment of the relevant facts in a reliable manner .

Paragraph CARDINAL of Section CARDINAL(e ) provides that a penal order is , by its nature , equivalent to a judgment by which a person has been convicted .

Pursuant to LAW , the accused person , other persons entitled to do so on his or her behalf as well as the public prosecutor can file an objection to a penal order within DATE from its service .

Paragraph CARDINAL of Article CARDINAL g provides that an injured person can file an objection to the relevant part of a penal order by which compensation for damage was granted to him or her . Where the injured person files an objection , the part of the penal order which concerns compensation for damage is to be quashed . In such a case a single judge of the criminal court shall deliver a decision referring the injured person with his or her claim for damages to a civil court .

Under paragraph CARDINAL of LAW , where a person entitled to do so files an objection to a penal order , a single judge shall hold a main hearing in the case . Otherwise the penal order becomes final and enforceable .

Pursuant to LAW , a penal order becomes final and enforceable when no objection has been filed to it within the time - limit set for that purpose .

Regulation CARDINAL/CARDINAL , as amended , governs the internal rules of ORG including the organisation of their work .

Pursuant to section DATE , as soon as it is established that a judicial decision has become final , the judge or another person authorised to do so shall indicate this fact and the date of its final effect on the decision included in the case file .

Section CARDINAL provides that , at the request of a person who has been served with a decision prior to its final effect , the court shall put a stamp on that decision indicating when it became final and enforceable .


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

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

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

On an unspecified date a preliminary investigation for robbery was opened against the applicant . He was questioned as a suspect on an unspecified date and a search of his apartment was conducted on CARDINAL and CARDINAL DATE . On an unspecified date the preliminary investigation was suspended .

The preliminary investigation was resumed on DATE and then again suspended on DATE .

The preliminary investigation against the applicant was again resumed on DATE . On an unspecified date in DATE it was discontinued in respect of the applicant and was transformed as being against an unknown perpetrator .

The applicant was never formally charged with an offence .

In the course of the search of the applicant 's apartment on CARDINAL and CARDINAL DATE the investigating authorities seized various items , such as a helm , an electric sander , a car radio , a stereo , QUANTITY turbot fishing nets , CARDINAL goby fishing nets , CARDINAL bluefish and shad fishing nets , CARDINAL fishing hooks , a car battery , CARDINAL life jackets , a leather bag , CARDINAL signal rockets and a reversible boat coupling . According to the applicant the items were either new or of high quality . The seized items were held by the investigating authorities as physical evidence in the preliminary investigation against the applicant .

On the instructions of the GPE district public prosecutor 's office of an unspecified date part of the seized items were returned to CARDINAL individuals who had reported them stolen and from whom they had apparently been stolen . The items were returned to their owners only after the authorities had verified the owners ' claims on the basis of ownership documents and identification checks . The said transfers were effected on DATE , CARDINAL and DATE and DATE .

On DATE the ORG regional public prosecutor 's office invited the applicant to receive the remainder of the items in their possession . He refused to accept them as he claimed that most of the items were either missing , had been replaced with similar such of lower quality or had become unusable for their intended purpose .

On DATE ORG invited the applicant to receive the helm . It is unclear whether he did so .

On an unspecified date in DATE the applicant initiated an action for damages under LAW ( CARDINAL ) of ORG to LAW of DATE ( renamed on DATE to the ORG and ORG : “ the ORG ” ) .

The applicant sought compensation in the amount of CARDINAL NORP levs ( MONEY ) for the missing , lost or destroyed items seized from him as physical evidence in the course of the preliminary investigation against him which had subsequently been terminated . The applicant argued that in so far as he would have been entitled to compensation for an unlawful indictment , the preliminary investigation against him should also be considered to have been unlawful and subject to compensation , including , in particular , the damage resulting from the conducted search and seizure of his possessions .

In a judgment of CARDINAL DATE ORG found that the applicant had no right of action under the ORG against the authorities because he had never been indicted for an offence and , therefore , no liability arose for the investigation and the prosecution authorities under LAW .

The applicant appealed against this judgment on DATE arguing that the preliminary investigation against him constituted a de facto indictment as he had to endure the negative effects of an ongoing criminal investigation against him , such as the search and seizure of his possessions .

In a judgment of DATE ORG found against the applicant and upheld the lower court 's findings that he had no right of action under the ORG because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in LAW .

On DATE the applicant filed a cassation appeal against the judgment of ORG . He argued that the ORG 's liability under LAW arose from the fact that there had been a preliminary investigation against him for robbery , subsequently discontinued , which amounted to having been subjected to unlawful criminal proceedings .

In a final judgment of DATE ORG found against the applicant and upheld the lower courts ' judgments . It also found that the applicant had no right of action under the ORG because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in LAW . In so far as the applicant had never been charged , but had only been questioned as a suspect and then as a witness , the court found that no liability arose for the authorities in question . Moreover , ORG noted that the investigation and the prosecution authorities could also not be held liable under LAW for any of their actions or inactions related to the safekeeping of the seized items .

The relevant domestic law and practice have been summarised in the judgments in the cases of GPE and Others v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and Atanasov and ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


The applicant was born in DATE and lives in PERSON . He was the sole shareholder in a company , which was in the process of being wound up from DATE .

NORP In DATE the official receiver of the company requested the applicant to hand over to him all the assets of the company . The applicant who was in possession of shares in a housing company refused to deliver those shares .

The applicant instituted civil proceedings before ORG ( käräjäoikeus , tingsrätten ) of PERSON against the company and requested the court to confirm that the shares were owned by him and that he was under no obligation to hand them over . On DATE ORG held , however , that the shares belonged to the company and ordered him to hand them over to the official receiver . On DATE the judgment was upheld by ORG ( hovioikeus , hovrätten ) . On DATE ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .

In DATE the applicant lodged an extraordinary appeal . In DATE and DATE he lodged further annulment applications relating to the ownership of the shares and other issues arising out of the winding up of his company . Those applications were all dismissed as ill - founded by ORG on DATE and CARDINAL DATE respectively . Furthermore , his extraordinary appeal of CARDINAL DATE was dismissed by ORG on DATE .

Meanwhile , the official receiver requested the bailiff to seize the shares from the applicant . On DATE an attempt to this effect failed the applicant having argued that he held the shares by way of guarantee and refused to inform the bailiff about the PERSON whereabouts .

On DATE the company requested that the police investigate whether the applicant had committed an offence by refusing inter alia to provide information about the whereabouts of the shares . On DATE and on CARDINAL DATE the police unsuccessfully carried out searches of his apartment . On DATE he was questioned . He told the police that he had lodged , in DATE and DATE respectively , applications for an annulment of the winding up order and the final decision in the ownership proceedings . He had also lodged a complaint with the Chancellor of ORG ( valtioneuvoston oikeuskansleri , justitiekanslern vid statsrådet ) . Further , he stated that he was not going to provide any information until the resolution of those complaints . It appears that the pre - trial investigation was completed on DATE .

NORP The official receiver requested that ORG ( lääninhallitus , länsstyrelsen ) of PERSON order the applicant to move out of the apartment in the housing company as the shares in question belonged to the company . On DATE it issued an order to that effect . On CARDINAL DATE ORG rejected the applicant ’s appeal .

On DATE a local public prosecutor decided not to bring charges for a debtor ’s fraud allegedly committed on CARDINAL DATE . He found that it had not been sufficiently evidenced that the applicant had knowledge of the PERSON whereabouts . The company lodged a complaint with the Chancellor of ORG , who on CARDINAL DATE gave instructions that a new pre - trial investigation be carried out . The official receiver and the applicant were questioned by the police on DATE and CARDINAL DATE respectively and it appears that the pre - trial investigation was completed on DATE .

On DATE the official receiver requested that ORG declare the shares null and void as their lawful owner , the company , had not received them from the applicant despite numerous attempts . On DATE ORG refused the company ’s request since the applicant had appeared at ORG on DATE and produced the shares without handing them over and since , according to NORP law , only shares which had gone missing could be declared null and void .

Meanwhile , on DATE the then ORG ( lääninsyyttäjä , länsåklagaren ) charged the applicant with aggravated embezzlement committed on DATE when he had become aware of ORG judgment of DATE . ORG assigned the case to another local public prosecutor . On DATE the summons was served upon the applicant .

ORG held QUANTITY hearings , on DATE , on DATE and on DATE .

In its judgment of DATE ORG acquitted the applicant . It noted that the ownership of the shares had been finally decided by ORG relevant decision of CARDINAL DATE , that the applicant had admitted that the shares were in his possession and that he had failed to prove that he had a right to withhold them from the official receiver on the basis of a contract of guarantee , or any other document . However , the embezzlement could not be regarded as an aggravated one and , as the charges for a “ normal ” embezzlement should have been brought within DATE of the date on which the offence had taken place , the relevant time limit had elapsed and the charges were time barred . The applicant was , however , ordered to pay MONEY ( ORG ; CARDINAL ( ORG ) ) in compensation for pecuniary damage , and LAW ( some EUR CARDINAL,CARDINAL ) in compensation for the company ’s legal costs .

The parties appealed . On DATE , having found that the company had failed to request a court order according to which a conditional fine would have been imposed had the applicant refused to hand over the shares to the company , ORG ( hovioikeus , hovrätten ) altered ORG judgment and rejected the company ’s claims . The judgment was not unanimous .

Only the company requested leave to appeal . On DATE ORG granted leave to appeal . The applicant lodged an extraordinary appeal against the decision , arguing that the Supreme Court Judges X and T had been disqualified from deciding the leave to appeal matter , but this was dismissed by ORG on DATE .

At the oral hearing in ORG on DATE , the applicant argued that ORG and P were biased as they had been involved in the decision - making concerning some extraordinary appeal proceedings in the applicant ’s previous cases before ORG . The objection was dismissed by ORG as the cases referred to by the applicant had not concerned the same issues as the present proceedings .

NORP In its judgment of CARDINAL DATE ORG convicted the applicant of aggravated embezzlement and sentenced him to a suspended term of CARDINAL months’ imprisonment . He was also ordered to pay the company ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) in compensation for the latter ’s pecuniary damage . Having first found the official receiver competent to act on behalf of the company in the proceedings , and having rejected the applicant ’s argument according to which the company ’s compensation claim for pecuniary damage had been submitted after the relevant time limit had elapsed , ORG found him guilty as charged . It considered that he had failed to prove that he had any lawful right to refuse to hand the shares over to the official receiver . As the company had been prevented from selling the shares because of his resistance , it had suffered financial loss in the form of lost interest it would have earned from the sales price had the shares been sold in DATE for the sales price of ORG CARDINAL ( some EUR CARDINAL ) which was the estimated sales price at the relevant time .

On DATE ORG refused the applicant ’s request to re - open the criminal proceedings . Meanwhile , on DATE , he complained about the ORG criminal proceedings to ORG . It is not known whether the complaint is still pending before the ORG .


The applicant was born in DATE . At the time the application was lodged he lived in Lörrach in GPE . He is currently residing in GPE .

NORP In DATE the applicant , aged DATE , entered NORP territory in order to live there with his parents and his brother . He attended secondary school until DATE . In DATE the applicant married a NORP national in GPE . In DATE a son was born to the couple . On DATE the competent authorities granted the applicant a permanent residence permit . In DATE the applicant ’s wife and son followed him to GPE . In DATE , DATE and DATE CARDINAL further sons were born to the couple . CARDINAL of the children has a learning handicap . The applicant ’s wife is in possession of a permanent residence permit ; all family members are NORP nationals .

In DATE the applicant – in view of previous convictions DATE was warned and informed that he would face expulsion if he committed further criminal offences ( ausländerrechtliche GPE ) .

On DATE ORG ( ORG ) convicted the applicant of insulting behaviour and ordered him to pay CARDINAL DATE rates of DEM CARDINAL .

On DATE ORG convicted the applicant of negligent drunken driving ( fahrlässige PERSON ) and ordered him to pay CARDINAL DATE rates of DEM CARDINAL .

On DATE ORG convicted the applicant of inflicting bodily harm and of obstructing public officers in the execution of their duties and ordered him to pay DATE rates of DEM CARDINAL .

On DATE ORG convicted the applicant of reckless driving LOC ) and sentenced him to CARDINAL months’ imprisonment , suspended on probation .

On DATE ORG convicted the applicant of inflicting bodily harm and ordered him to pay CARDINAL DATE rates of DEM CARDINAL .

On DATE ORG convicted the applicant of negligent drunken driving and sentenced him to CARDINAL months’ imprisonment , suspended on probation .

On DATE ORG convicted the applicant of drunken driving in conjunction with driving without a driving license and sentenced him to CARDINAL months’ imprisonment .

On DATE ORG ( Landgericht ) rejected the applicant ’s appeal in which he had asked that the execution of his sentence be suspended on probation . According to ORG , the applicant ’s numerous convictions did not seem to have served as warnings not to commit further criminal offences , having particular regard to the fact that the applicant had committed his last offence DATE after his previous conviction had acquired legal effect .

On DATE the applicant was arrested and imprisoned . As his last offence had been committed while he was still on probation after the decision of ORG of DATE , the suspension on probation was revoked and the applicant was imprisoned for DATE .

On DATE ORG convicted the applicant of recklessly placing himself in a state of total intoxication ( fahrlässiger PERSON ) and sentenced him to a fine of CARDINAL DATE rates .

On DATE ORG ( Regierungspräsidium ) ordered the applicant ’s expulsion to GPE or to another ORG willing to accept him . Applying sections CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW , see relevant domestic law below ) , it noted the applicant ’s repeated criminal convictions , in particular those for traffic offences . ORG found that the applicant ’s criminal conduct had caused a serious threat for public safety . It further considered that there was a risk that he would commit similar offences in the future , as neither his previous convictions nor several warnings by the ORG authorities had deterred him from committing further offences . Moreover , the applicant had not solved his alcohol problem , but had dropped out of therapy . ORG further argued that the applicant , on account of his age , would manage his integration in GPE . His family could be reasonably expected to follow him as his children could be assumed to have sufficient knowledge of the NORP culture and language . Exercising its discretion and with regard to LAW found that the public interest in the applicant ’s expulsion outweighed his own and his family ’s interests , given the seriousness of the threat which he posed to public road traffic .

On DATE ORG rejected the applicant ’s objection .

On DATE ORG ( Verwaltungsgericht ) refused to grant the applicant an interim order against his expulsion and confirmed the reasoning of ORG . It found that ORG decision was likely to be upheld in the main proceedings . The CARDINAL traffic offences committed by the applicant since DATE , taken together with his further criminal convictions , constituted a serious reason justifying expulsion . ORG found , in particular , that the applicant ’s offences could not be regarded as being of a minor nature , taking into account the high importance of the safety of road traffic within society . The court further confirmed that there was a danger of recidivism , because the applicant had not proved that he had overcome his alcohol problem . It finally found that ORG duly considered the applicant ’s family situation . Having regard to the considerable danger the applicant posed for other road users and to the fact that his family could live with him in GPE , the expulsion did not violate the applicant ’s right to the enjoyment of his family life as guaranteed by LAW by LAW .

On DATE ORG confirmed the expulsion order , referring mainly to its reasoning in the decision of DATE .

On DATE the applicant requested to be granted leave to appeal , arguing , in particular , that the expulsion violated his rights under LAW .

On CARDINAL DATE the Baden - ORG ( ORG ) refused to grant the applicant leave to appeal , confirming that there was no apparent violation of LAW . ORG found , in particular , that the applicant ’s family could be reasonably expected to follow him to GPE , as they could be assumed to have sufficient knowledge of the NORP language . This decision was served on the applicant ’s counsel on DATE .

NORP By letter and fax dated DATE the applicant , represented by counsel , lodged a constitutional complaint , in which he gave a complete account of the proceedings before the domestic authorities and complained that his expulsion would violate his right to respect for his family life as guaranteed by LAW .

NORP By letter of DATE ORG acknowledged receipt of the applicant ’s complaint and attachments on DATE by fax and on DATE by mail .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant ’s constitutional complaint for adjudication , without giving any further reasons . This decision was served on the applicant ’s counsel on DATE .

On CARDINAL DATE the applicant was deported to GPE . On DATE he re - entered NORP territory and filed a request to be granted asylum .

According to the ORG ’s submissions , by penal order of CARDINAL DATE ORG sentenced the applicant to a fine of CARDINAL DATE rates for having driven without a license on DATE .

On DATE the applicant filed a request to set a time - limit on the effects of his expulsion .

On DATE ORG informed him that the proceedings had been suspended pending proceedings on his asylum request .

On DATE , his asylum request having been rejected , an attempt to deport the applicant failed because the latter had gone into hiding . On DATE the applicant was arrested and placed in detention pending his deportation . He was once again deported to GPE on DATE .

On DATE the applicant filed a second request to set a time - limit on the effects of his deportation of CARDINAL DATE . On DATE ORG requested the applicant to submit a confirmation of registration with the NORP authorities and an extract from the NORP criminal records register . He was further informed about the costs of the QUANTITY deportations ( approximately ORG CARDINAL,CARDINAL ) . No decision has so far been given on the applicant ’s request .

The relevant provisions of the Rules of Procedure of ORG ( Bundesverfassungsgerichtsgesetz ) read as follows :

“ Applications for the institution of proceedings must be submitted in writing to ORG . The reasons must be stated ... ”

“ ( CARDINAL ) Any person who claims that CARDINAL of his basic rights ... has been violated by public authority may lodge a constitutional complaint with ORG . ”

“ The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed . ”

“ A constitutional complaint shall be lodged and substantiated within DATE . This time - limit shall commence with the service or informal notification of the complete decision ... ”

“ ( CARDINAL ) A constitutional complaint shall require acceptance for adjudication .

It shall be accepted

( a ) insofar as it is of fundamental constitutional significance ,

( b ) if this is necessary in order to assert the right referred to in LAW ... ”

According to the case - law of ORG , an applicant has not only to name the right which has allegedly been violated , but also to present the proceedings which led to this violation in a substantiated and conclusive way ( schlüssig und substantiiert ) , in order to comply with the above - mentioned provisions . This means that the applicant has to establish a link between the impugned decision and the alleged violation of his rights under LAW .

The rights of entry and residence for foreigners were , at the relevant time , governed by LAW ) , the relevant provision of which reads as follows :

“ An alien shall generally ( in der PERSON ) be expelled if he has been sentenced ... to imprisonment in respect of CARDINAL or more intentionally committed criminal offences and the execution of the sentence has not been suspended on probation ... ”

If the alien entered the NORP territory as a minor and was in possession of a permanent residence permit , he may only be expelled if serious reasons of public safety and order justify his expulsion ( section CARDINAL § CARDINAL No . CARDINAL ) .

Section CARDINAL provides that the domestic authorities , when deciding on an alien ’s expulsion , shall , inter alia , accord due consideration to the duration of the person ’s lawful residence , his personal , economic and other ties to the NORP territory and to the consequences of the expulsion for the alien ’s family members who are legally residing with him .

According to section CARDINAL § CARDINAL , an alien who has been expelled is not permitted to re - enter NORP territory . This effect shall usually ( in der PERSON ) be limited in time upon application . The time - limit shall commence with the alien ’s departure from NORP territory .