The first applicant is a NORP national , born in DATE and living in GPE , the GPE . The second applicant is her son born on DATE . The applicants are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The first applicant ’s father died when she was at DATE . Thereafter her mother remarried . According to her doctor the first applicant was treated several times by a psychiatrist as she was very depressive , especially in DATE . As part of the treatment she was from time to time provided with medication . The first applicant had a sister and a stepbrother . The latter , who died in DATE , was according to the first applicant shot dead by the police while in police custody in GPE . Following her brother ’s death the first applicant became further psychologically imbalanced and went on sick leave for DATE . Her mother attempted suicide ( by taking pills ) and had alcohol problems .

At the time of the events described below the first applicant had no previous criminal record and had been in gainful employment as a secretary since DATE . She had a partner with whom she did not cohabit .

On DATE , the first applicant explains that she bought on a street in GPE a Citroen CARDINALCV from a person who she knew just as “ PERSON . She had the car registered and drove towards LOC in the evening of the same day . DATE beforehand , she had deliberately tried to become pregnant and when she left she was aware that she had succeeded in this . She was pregnant with the second applicant .

On DATE , the NORP Police stopped her having been notified by the NORP customs authorities that she had given them peculiar information concerning her travel destination , etc . The first applicant was arrested after the police had found QUANTITY of amphetamine in ORG that she had driven from the GPE to GPE . The drug had a particularly high degree of purity ; CARDINAL - CARDINAL weight per cent , with a street value assessed at ORG CARDINAL,CARDINAL,CARDINAL . The first applicant stated to the police that she had neither knowledge of GPE nor any acquaintances in the country , she was in possession of a limited amount of money upon arrest and had no credit card , to her employer in the GPE she had said that she had to go on a holiday with her mother who had been to hospital after taking an overdose .

On DATE she was remanded in custody at ORG . On DATE she was transferred to LOC , as she had made an attempt to flee , assisted by CARDINAL persons visiting her from the GPE who had left a filing tool under the prison fence . On DATE she was transferred back to ORG .

After a hearing on DATE , ORG ( lagmannsrett ) jury answered the charges in the negative , whereupon the judges sitting in the case unanimously set aside the first applicant ’s acquittal by the jury as obviously erroneous and ordered a retrial .

In order to facilitate the applicant ’s particular situation and to co - ordinate future measures vis - à - vis the mother and child , several discussions were held between representatives from the child care authorities , the relevant hospital , the prosecution , the police and her lawyer , who throughout the first applicant ’s stay in GPE , until she unilaterally decided to send the second applicant to his grandmother in the GPE , were in close co - operation with one another . To this end also a meeting was held at FAC between all the persons concerned , including the first applicant and her lawyer . She was able to communicate fluently in LANGUAGE . After the first applicant ’s attempted flight , security became an issue and different options were considered .

DATE and CARDINAL DATE , the first applicant went CARDINAL times to ORG in GPE for prenatal checks , including ultra sound examinations . Most times she was accompanied by uniformed police officers and was obliged to wear handcuffs during her transportation and while in the waiting room with other patients . She felt humiliated vis - à - vis other patients because of the presence of uniformed police and the use of handcuffs . The handcuffs were removed before the actual medical examinations and , with CARDINAL exception , before she entered the examination room . Some times the first applicant was accompanied by plain - clothed police officers from the anti - drugs squad who did not apply handcuffs , as they felt they had sufficient knowledge of her and her case to keep her under constant surveillance without applying handcuffs . The first applicant found it unacceptable that she could not always be accompanied by the latter police officers . On CARDINAL occasion , when the applicant had an ultra sound examination , CARDINAL male police officers followed her into the examination room , as it was on the ground floor with windows whereby one could leave the building . CARDINAL of the officers then assisted as an interpreter at the request of the midwife who did not master LANGUAGE . He inter alia explained to the first applicant what could be seen on the screen during the examination . The examination was limited to a plain ultra sound examination . Only at a later time did the first applicant complain about the police ORG presence in the room during the ultra sound examination .

On DATE the first applicant gave birth to the second applicant at FAC in GPE , CARDINAL of the best - equipped hospitals in the country . During her hospitalisation , which lasted DATE , she was guarded by CARDINAL police officers . At that time there had already been one incident in GPE where a female detainee had fled in connection with giving birth at a hospital . There were other incidents were a detainee had fled when taken to hospital for medical reasons . On CARDINAL such occasion , at the least , the detainee had been armed .

Shortly before the first applicant gave birth , the CARDINAL uniformed police officers followed her at a close distance as she and the female deputy director of the prison , serving as her support person , walked up and down the corridor . While the first applicant gave birth , the CARDINAL officers sat outside the delivery room . The door to the room was closed and a folding screen was positioned between the first applicant ’s bed and the door . At the first applicant ’s request , the deputy director attended the birth as her support person . The latter was a psychologist specialised in social psychology who had spent much time talking to and assisting the first applicant during her detention . In retrospect it had been observed that , on the whole , the efforts made by the prison staff in order to accommodate the first applicant ’s wishes and needs had almost been at the expense of those made vis - à - vis other prisoners . The first applicant ’s mother came to visit and assist her daughter DATE after the second applicant was born .

On DATE the first applicant was released from the hospital and transferred back to the prison . It was not deemed suitable that the son stay with his mother in GPE prison , which did not have the necessary facilities . This institution was considered unsuitable for keeping small children , in view of inter alia its architectural disposition , the outdoor areas , the sanitary conditions and the composition of the prison population . The latter comprised all categories of detainees , including mentally unstable persons held in security detention . A number of detainees were struggling with poor mental health , infectious diseases , consumption of intoxicating substances as well as deviant behaviour .

The second applicant was instead placed in the Aline Child Care Centre offering high quality services for the mother and the newborn . The FAC was situated in GPE at a relatively close distance to the ORG prison . Arrangements were put in place to enable the baby to be fed with his mother ’s milk . Until DATE the first applicant was transported CARDINAL times a week to visit the boy at FAC TIME each time . On a few occasions , she was accompanied by police officers . Some times , as was the case during the prenatal checks , the officers wore uniform and applied handcuffs on the first applicant until she received her son . On other occasions her guardians were plain cloth police officers from the anti - drug squad who did not apply handcuffs on her . Thereafter , for DATE , the boy was brought to the prison for TIME a day on DATE and TIME a day on DATE .

From DATE , the second applicant was hospitalised at FAC because of a lung virus . Its paediatric ward was located on the ground floor . The first applicant was able to visit him once for a duration of TIME , on which occasion she was wearing so - called transport cuffs – that was a chain attached to a foot and the opposite arm . Under these conditions she was permitted to be alone with the baby in a separate room while being observed by the police only through a screen . However , she could hold her baby , but was allegedly unable to nurse him and put him back in bed . Afterwards the mother received her son in the prison DATE .

On her return to the prison after the above - mentioned visits , the applicant was regularly body searched , although some prison guards omitted to do this . The searches were carried out in accordance with standard practice . In a separate room she had to undress completely before a female prison officer , who , without any physical contact with her , inspected her hair , ears , mouth , arm pits and the crotch and made her squat and swing to and fro to ensure that she would not bring any unauthorised items into the prison .

After DATE , such searches were occasionally also carried out after the boy had visited his mother in prison . ORG had on DATE received information suggesting that the son showed signs of nervousness , and it was thought that it might be due to drug abuse by his mother

Because she had refused CARDINAL times to allow a body search , the first applicant was placed in an isolation cell only equipped with a mattress , for a duration of TIME and once for TIME . She made a complaint in writing . As of DATE she was no longer searched after her son ’s visits as she accepted to give urine samples enabling the prison administration to verify possible drug abuse . The tests proved negative .

On DATE , after a retrial , ORG convicted the applicant and sentenced her to DATE imprisonment , from which DATE already spent in custody were to be deducted . This was deemed to be a relatively lenient sentence for such a serious drug offence , the reasons being her pregnancy , the birth in detention on remand and the fact that it would be an extra burden for her to serve a long prison sentence in a foreign country , with language difficulties and the absence of close relatives .

On DATE , at the initiative of the first applicant , the second applicant left GPE with his maternal grandmother , who then assumed the care for the second applicant in the GPE . This was before her conviction and sentence had gained legal force and before the NORP authorities had taken a stance on where the first applicant should serve her sentence . The prosecution , for its part , had in a letter of DATE to the prison authorities expressed the view that , since she was a NORP national without any links to GPE , the service of the sentence should not be postponed ; otherwise she would have to remain in detention on remand . Although there was no general agreement about the serving of sentences between the GPE and GPE , the prosecution was not opposed to the first applicant serving the sentence in her home country .

The first applicant was allowed to call ( free of charge ) her mother and son for TIME a week , in accordance with the applicable rules . On DATE she sought to have the time extended . Her request was rejected by the Prison Director on DATE , which decision was upheld by ORG on DATE , as there were no extraordinary circumstances to warrant an extension of the time offered . As of CARDINAL DATE , she was granted an extra call per week at her own expense .

As of DATE , the first applicant was transferred to a wing with a more lenient regime , on a contractual basis of good behaviour . Thereafter , there was no time restriction on her use of the telephone .

On DATE the first applicant requested a pardon from ORG , which request was rejected . It was observed that the condition of her health and the interests of the mother and child in being reunited could not outweigh the interest of avoiding giving an undesirable signal with respect to the use of pregnant women as drug couriers . Her subsequent appeal against this refusal was successful , having regard to her depressive and psychotic mental state and concerns about the child ’s future care and development . The first applicant was released on DATE and returned to the GPE where she reunited with her son . In the meantime , she had several times been visited in the prison by her son and mother who had come from the GPE .

Prior to being pardoned , the first applicant had already brought proceedings against the ORG seeking a declaration ( fastsettelsessøksmål ) of a violation of ORG CARDINAL and CARDINAL of the LAW , as well as compensation . Her claim was rejected by ORG ( byrett ) in DATE and dismissed by ORG in DATE , which decision was upheld by ORG of ORG in DATE . She then sought compensation under a different procedure , requesting an executory judgment ( fullbyrdelsessøksmål ) . By judgment of DATE , ORG upheld ORG above - mentioned judgment , as did ORG in a judgment on DATE .

Before ORG , the first applicant unsuccessfully challenged the participation of CARDINAL of its judges , Mr Justice PERSON . The judge in question , who normally served as President of ORG , had as a temporary ( konstituert ) judge occupied a seat in ORG from DATE to DATE , vacated by a judge who had retired , and had replaced another judge on sabbatical leave from CARDINAL DATE to DATE . On each occasion , ORG had first inquired of him whether he might be willing to take on the assignment and , after he had given an affirmative answer , the King , sitting in ORG , had taken the decision to appoint him as a replacement judge for the period in question . At the material time PERSON had not applied for any vacant seat in ORG .


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano

The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently detained at FAC . He was represented before the Court by PERSON , a lawyer practising in GPE with FAC .

On DATE at ORG the applicant was convicted of the murder of PERSON and sentenced to life imprisonment . Mr PERSON had been the applicant ’s business partner . He was shot and killed at their business LOC on DATE by PERSON , who left the scene of the crime in a car driven by PERSON . The applicant was charged with murder jointly with GPE , Gray and CARDINAL other men who had allegedly provided money to pay for the killing of PERSON . The ORG ’s case was that the applicant had paid Runham and Gray MONEY ( ORG ) to kill PERSON . NORP The applicant ’s defence was that he had only hired LOC and Gray to break one of PERSON ’s limbs . NORP and Gray pleaded guilty to murder . Gray gave evidence for the prosecution against the applicant concerning the alleged murder conspiracy .

In DATE , following a review of the prosecution ’s duty of disclosure , CARDINAL “ actions ” in the criminal investigation , which were contained in the police ’s “ PERSON ” computer system , were disclosed to the applicant . Full disclosure of material gathered in the course of a separate fraud inquiry was also made . Prior to an appeal by the applicant to ORG , he was served with a schedule of what material was still being withheld from him ; this included a document numbered CARDINAL , a letter from ORG ’s solicitors to a GPE police officer , which discussed a prison transfer and the possibility of the police supporting his early release from prison . Document no . CARDINAL subsequently came into the applicant ’s possession , though , in proceedings before ORG ( see section CARDINAL below ) , there was a dispute between the parties as to whether the applicant had received it before the appeal hearing .

Following the dismissal of the applicant ’s appeal , an application was introduced with this ORG and , in its judgment of DATE , the ORG found that there had been a violation of the applicant ’s right to a fair trial . ORG was not persuaded that the Government had shown that document no . CARDINAL , relevant to the applicant ’s defence , was made available to his counsel in time for use at the appeal . It went on to state that this finding was not , however , essential to its reasoning as , in any event , it was not in dispute that other documents were not disclosed at this time , on the basis , inter alia , of the prosecution ’s assessment that public interest immunity was applicable to them . Moreover , a request to ORG that it review the undisclosed material was not to be regarded as an adequate safeguard as ORG would neither have been assisted by defence counsel ’s arguments as to its relevance nor have been able to draw on any first - hand knowledge of the evidence given at trial .

On DATE the applicant applied to ORG to have his case referred back to ORG but asked the Commission to defer its report until this ORG had given judgment . On DATE the Commission informed the applicant of its final decision not to refer his case to ORG .

In its examination of the case , the ORG exercised its powers under LAW of LAW DATE ( see relevant domestic law and practice below ) to obtain and examine the undisclosed material , including document no . CARDINAL . It concluded that , aside from document no . CARDINAL , nothing seen by the Commission was thought to be either prima facie disclosable or to impact upon the safety of the applicant ’s conviction . In the absence of any further undisclosed information that could have undermined the prosecution case or assisted the applicant ’s defence , the Commission confined its consideration to whether or not the non - disclosure of document no . CARDINAL , along with this ORG ’s assessment of that nondisclosure , gave rise to a real possibility that ORG would quash the conviction . In the ORG ’s view , it did not . Despite the expiry of the tariff period of his life sentence , Gray remained in custody at the time of the ORG ’s report ; there was nothing in ORG files that would have undermined his evidence at trial and the Commission had not uncovered any material that could have been used by the applicant ’s defence team to more effectively cross - examine him . There was nothing remarkable in the fact that Gray had been given a degree of protection by the authorities before trial and document no . CARDINAL would not have led to any line of cross - examination that was not already open to the applicant . At paragraphs CARDINAL.CARDINAL and CARDINAL of its report the ORG gave its final conclusion as follows :

“ The ECtHR has itself pronounced that the material non - disclosure was a breach of Mr LOC ’s rights , a factor that has been weighed heavily by ORG The Commission can only conclude that LAW was a letter showing that PERSON was being held in isolation from his co - defendants , that the police were facilitating visits for his wife and that he was hopeful for relatively favourable treatment ( compared , at least , to his co - defendants ) in terms of his life sentence . In the view of the Commission , this new information , taken in any combination with any other frailties in the prosecution case , is not sufficient to lead the Commission to believe that there is a real possibility that any properly directed jury might reasonably have reached a different decision in Mr LOC ’s case . ”

The applicant sought judicial review of the ORG ’s decision . On DATE , this was refused by ORG . Mr ORG observed :

“ [ The ORG was plainly entitled to reach the view that it did and so to refuse to refer . For those reasons I would dismiss this application for judicial review ; but , before doing so , it is useful by way of a check to analyse what might happen if , contrary to the view that I have expressed , the Commission were to refer this case to ORG .

As the GPE court demonstrated in this case and as it has done in other circumstances and in other cases , for example PERSON v GPE [ DATE ] CARDINAL EHRR CARDINAL , procedures in an appellate court can cure a defect in a trial at first instance . Thus , for example , as in PERSON , the ability to cross - examine a witness not available at first instance but available on appeal may cure that defect . In this case , as the GPE court held , the opportunity for ORG to review , in the light of submissions made by the defence , documents that have been disclosed to the defence cured the defect in disclosure in the court below . It must therefore follow that , on a reference , document NORP , available to the defence and to the court , would be open to be considered by the court in circumstances in which its consideration would cure the failure to disclose in the court below . Likewise , in relation to the documents only listed but still not disclosed , CARDINAL possibilities exist for the defect in the court below to be cured . The ORG might decide that , after the lapse of DATE , it was no longer necessary to maintain public interest immunity in respect of the documents . Alternatively a special advocate might be appointed to examine them on behalf of the claimant .

In either event , the defect below would potentially at least be curable . Accordingly , the effect of a reference by the ORG in this case , if its judgment is right , would be that an otherwise perfectly safe conviction would not only be upheld but also would be upheld in circumstances in which the claimant ’s LAW rights would ultimately be fully vindicated by the appeal process . To embark on that course , if the judgment of the Commission is right , would be an academic exercise only . In my view there would be no purpose of justice to be served by requiring the Commission and ORG to undertake it . ”

Lord Justice Laws added :

“ A conviction would not be upheld if and only if ORG were to consider it unsafe . Unless the finding by ORG a violation of Article CARDINAL necessarily entails the conclusion that the verdict is unsafe , the impact of that finding was for the ORG to evaluate in the course of their consideration of the section CARDINAL(CARDINAL)(a ) question [ see relevant domestic law below ] . It seems to me that their treatment of it is beyond the reach of sensible challenge in court .

I agree with my Lord [ Mr Justice GPE ] that not every criminal case where there has been a finding of violation of LAW yields the conclusion that the verdict is unsafe and I adopt with gratitude his summary of the relevant learning . While any breach of LAW is plainly a cause of concern , and instances of such breaches in cases where the conviction is nevertheless safe may be few and far between , in this area one would not expect to see a rigid rule with no exceptions but a case by case approach with much emphasis laid on the gravity and effect of a particular violation . ”

At its CARDINALth meeting from DATE ORG , having taken note of the proceedings before ORG and ORG judgment , decided to close its examination of the case .

ORG is regulated by LAW DATE . Where a person has been convicted on indictment , section CARDINAL(CARDINAL ) gives the Commission the power to refer at any time the conviction to ORG . By section CARDINAL(CARDINAL ) , any such reference is to be treated for all purposes as an appeal by the person concerned against conviction . LAW sets the conditions for making references . It provides :

“ ( CARDINAL ) A reference of a conviction , verdict , finding or sentence shall not be made under any of sections CARDINAL to CARDINAL unless —

( a ) the Commission consider that there is a real possibility that the conviction , verdict , finding or sentence would not be upheld were the reference to be made ,

( b ) the ORG so consider—

( i ) in the case of a conviction , verdict or finding , because of an argument , or evidence , not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it , or

( ii ) in the case of a sentence , because of an argument on a point of law , or information , not so raised , and

( c ) an appeal against the conviction , verdict , finding or sentence has been determined or leave to appeal against it has been refused .

( CARDINAL ) Nothing in subsection ( CARDINAL)(b)(i ) or ( c ) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it . ”

Section CARDINAL of the LAW provides :

“ ( CARDINAL ) This section applies where the Commission believe that a person serving in a public body has possession or control of a document or other material which may assist the ORG in the exercise of any of their functions .

( CARDINAL ) Where it is reasonable to do so , the ORG may require the person who is the appropriate person in relation to the public body—

( a ) to produce the document or other material to the ORG or to give the ORG access to it , and

( b ) to allow the ORG to take away the document or other material or to make and take away a copy of it in such form as they think appropriate ,

and may direct that person that the document or other material must not be destroyed , damaged or altered before the direction is withdrawn by ORG .

( CARDINAL ) The documents and other material covered by this section include , in particular , any document or other material obtained or created during any investigation or proceedings relating to—

( a ) the case in relation to which the ORG ’s function is being or may be exercised , or

( b ) any other case which may be in any way connected with that case ( whether or not any function of the Commission could be exercised in relation to that other case ) .

( CARDINAL ) The duty to comply with a requirement under this section is not affected by any obligation of secrecy or other limitation on disclosure ( including any such obligation or limitation imposed by or by virtue of an enactment ) which would otherwise prevent the production of the document or other material to the ORG or the giving of access to it to the ORG . ”

On DATE , at the CARDINALth meeting of ORG , ORG Recommendation No . R ( DATE ) CARDINAL on the re - examination or reopening of certain cases at domestic level following judgments of ORG :

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Considering that the aim of ORG is to bring about a closer union between its members ;

Having regard to ORG ( hereinafter ‘ the Convention’ ) ;

Noting that under LAW have accepted the obligation to abide by the final judgment of ORG ( ‘ the ORG ) in any case to which they are parties and that ORG shall supervise its execution ;

Bearing in mind that in certain circumstances the above - mentioned obligation may entail the adoption of measures , other than just satisfaction awarded by ORG in accordance with LAW and/or general measures , which ensure that the injured party is put , as far as possible , in the same situation as he or she enjoyed prior to the violation of the Convention ( restitutio in integrum ) ;

Noting that it is for the competent authorities of the respondent ORG to decide what measures are most appropriate to achieve restitutio in integrum , taking into account the means available under the national legal system ;

Bearing in mind , however , that the practice of ORG in supervising the execution of the ORG ’s judgments shows that in exceptional circumstances the re - examination of a case or a reopening of proceedings has proved the most efficient , if not the only , means of achieving restitutio in integrum ;

I. Invites , in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve , as far as possible , restitutio in integrum ;

II . Encourages the Contracting Parties , in particular , to examine their national legal systems with a view to ensuring that there exist adequate possibilities of reexamination of the case , including reopening of proceedings , in instances where the ORG has found a violation of the LAW , especially where :

( i ) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue , which are not adequately remedied by the just satisfaction and can not be rectified except by re - examination or reopening , and

( ii ) the judgment of the ORG leads to the conclusion that

( a ) the impugned domestic decision is on the merits contrary to the LAW , or

( b ) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of .

Explanatory memorandum on Recommendation R ( DATE ) CARDINAL :

Paragraph CARDINAL sets out the basic principle behind the recommendation that all victims of violations of the ORG should be entitled , as far as possible , to an effective restitutio in integrum . The Contracting Parties should , accordingly , review their legal systems with a view to ensuring that the necessary possibilities exist .


MIRCESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , 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 .

On DATE the applicant applied to ORG seeking dissolution of his marriage to PERSON due to marital problems .

On DATE PERSON gave birth to a daughter . That fact was brought to the applicant 's attention on DATE . At the meeting of CARDINAL DATE scheduled before ORG for reconciliation of the spouses , the applicant denied that the child was his . He claimed to have been separated from his wife since she left the house ( DATE ) and not to have been intimate for DATE . He confirmed that statement at the next meeting dated DATE . In the meantime , the applicant was recorded in the birth register as the child 's father . In his submissions of DATE , the applicant reiterated his doubts that he was the child 's biological father . In support , he stated that he had not been intimate with PERSON for DATE before the child was born .

On DATE ORG Instance accepted the applicant 's action and declared the marriage dissolved . It also ordered the applicant to pay PERCENT of his DATE salary as child maintenance . The court addressed the applicant 's denial of being the child 's biological father and confirmed that he had not still brought an action contesting the paternity , but that he had applied to ORG requesting a new time - limit to do so . It concluded accordingly that money paid in child maintenance might be recovered by the applicant if he successfully challenged his paternity in separate proceedings , if any .

On DATE ORG upheld that decision .

On DATE the public prosecutor informed the applicant that there were no grounds for lodging with ORG a request for the protection of legality .

On DATE the applicant requested , under section CARDINAL of LAW ( see “ Relevant domestic law ” , below ) , ORG to determine a new time - limit to disavow the paternity of the child . He reiterated his earlier observations made in the divorce proceedings and added that on DATE he had undergone CARDINAL sperm tests , which indicated that it was of poor quality . He further stated that that evidence had not existed within the time - limit set forth in CARDINAL LAW ( see “ Relevant domestic law ” , below ) . That request was communicated to PERSON for comments .

On DATE ORG dismissed the applicant 's request as having been based on the sperm tests only . It stated that no diagnosis had been provided that would attest the applicant 's infertility . It therefore concluded that there was no indication that the applicant was not the child 's father .

On DATE the applicant made a fresh request to ORG . He referred to the reconciliation proceedings before ORG in which he had contested his paternity . In addition to the earlier sperm tests , the applicant provided CARDINAL fresh sperm tests made DATE and DATE and CARDINAL analyses . The diagnosis indicated in the medical reports of CARDINAL and DATE issued by CARDINAL different medical institutions was “ asthenozoospermia ” and “ sterilitas ” . In vitro fertilisation was suggested to the applicant . PERSON was invited to present her arguments in reply .

On DATE ORG dismissed the applicant 's request , finding that it was based on the same evidence as his earlier request . It ruled that the medical reports and diagnosis did not sufficiently support the applicant 's request . The applicant stated that he was served with this decision on DATE .

According to section CARDINAL of LAW ( “ the LAW ” , consolidated version of CARDINAL DATE ) a husband is regarded as the father of a child born to his wife during wedlock or within DATE of a divorce .

Under section QUANTITY , the husband can contest the paternity of a child born to his wife during wedlock or within DATE of a divorce . In this connection , an action can be submitted within DATE when the husband learned of the child 's birth .

Section CARDINAL § CARDINAL of the LAW provides that the husband can request ORG to specify a new time - limit for disclaiming of the paternity if new facts or evidence are discovered after the expiration of the time - limit specified in section CARDINAL LAW which cast doubts that he is the father of a child born to his wife .


The applicant was born in DATE and lives in LOC .

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

Following the applicant 's arrest on DATE , on CARDINAL DATE ORG convicted the applicant of forgery and sentenced him to DATE and DATE in prison .

ORG upheld both the conviction and the sentence on DATE .

On DATE ORG dismissed the applicant 's further appeal on points of law as unavailable under domestic law ( odbacio kao nedozvoljen zahtev za ispitivanje zakonitosti pravnosnažne presude ) .

The applicant served his sentence in ORG ( GPE - popravni zavod u ORG ; hereinafter “ the prison ” ) .

The applicant 's letter of CARDINAL DATE to ORG in LOC bore the prison stamp of the same date and registration number QUANTITY .

NORP The applicant 's first letter of DATE , sent to ORG on DATE , also bore the prison stamp dated DATE and registration number CARDINAL - CARDINAL/CARDINAL .

In its own letter of DATE , inter alia , ORG therefore informed the applicant in NORP of the said stamp , assuming that he may not have been aware of it .

NORP In his application form submitted on DATE , the applicant stated that all his mail addressed to ORG bodies or his family had to be submitted opened to the prison administration , where it was read . He alleged that this was standard practice based on the provisions of the applicable prison regulations . He also submitted that , in accordance with the said practice , all incoming mail was delivered to prisoners opened , stamped and registered . This letter did not bear any prison stamp .

Finally , the above decision of ORG of DATE , which was subsequently sent to the applicant , also bore the prison stamp dated DATE and registration number CARDINAL - CARDINAL/CARDINAL .

On DATE the applicant was released early on parole .

The relevant domestic law is set out in the ORG 's judgment of PERSON ( no . CARDINAL/CARDINAL , § § DATE and DATE , CARDINAL DATE ) .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

NORP The applicant was born in DATE and lives in GPE .

Subsequent to his expulsion from a military academy due to his health problems , the applicant brought a case before ORG against ORG ( “ the Ministry ” ) for damages . The applicant argued that the alleged delay in the diagnosis of his medical condition had led to his unfair expulsion , which had inflicted pecuniary and non - pecuniary damages on him .

On DATE ORG held a hearing , where it heard the parties and the opinion of the principal public prosecutor , which had previously been submitted to the court in writing . On DATE , relying on the findings of medical experts , ORG refused the applicant ’s claim for damages . On DATE it dismissed the applicant ’s rectification request .

A description of the relevant domestic law can be found in the decision of GPE v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

Alvina Gyulumyan;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE the applicant , together with Mr Z.K. , was arrested by police officers at the ORG and taken into police custody on suspicion of committing robbery .

According to the record of the arrest , drafted by CARDINAL police officers on DATE at TIME and signed by the applicant and PERSON , the police had received information that at TIME persons had been seen trying to break into CARDINAL different houses in PERSON . A unit was dispatched and at TIME arrested the suspects , who corresponded to the description given by eyewitnesses ; in the course of the arrest , the applicant had sustained various injuries to his knees , back and forehead since he had fallen on stony ground while he was running .

On DATE ( DATE ) at TIME an eyewitness identified the applicant and PERSON in the course of an identification parade .

According to a verbatim report , the applicant was not questioned since he was a minor .

In the application form the applicant submitted , in great detail , that he had been subjected to various forms of ill - treatment while he was held in police custody . In particular , he submitted that he had been taken to an interrogation room where CARDINAL part of the wall was covered with sponge and that the officers had hit his head against this wall . He claimed that , in this room , he had been beaten and threatened , for example with electric shocks , by CARDINAL plain - clothed police officers . He stated that , although he was blindfolded , he was able to see at CARDINAL point and recognised them from their voices . The applicant further stated that the officers had later made him take a cold shower , stripped him naked and tied his hands . He claimed that all this had taken place at ORG central police station and not at the ORG Erçin police station , where he had been taken for certain procedures before being brought before the court .

At TIME the applicant was examined by a doctor at the PERSON medical clinic , Mr PERSON , who found that he had a QUANTITY slight skin lesion and oedema on his head , an elliptical area of redness of QUANTITY in the middle of his back resulting from rubbing or hitting , a slight bruise on the back towards the right shoulder and a slight abrasion on the right knee due to rubbing .

On DATE , at TIME , the applicant was examined by a doctor , PERSON , at the PERSON medical clinic , who found that he had an old bruise of QUANTITY by QUANTITY in the middle of his back . The doctor considered it to be DATE .

According to the undated rights of suspects and accused form signed by the applicant and a police officer at the ORG Erçin police station , the latter was arrested at TIME However , according to the transfer / release form , dated DATE , the applicant was arrested by ORG on DATE at TIME and released on DATE at TIME According to a report ( fezleke ) prepared by the police , on DATE , the applicant and Mr GPE were arrested at TIME by police officers from ORG ( PERSON ) . In this report it is stated that at TIME on DATE PERSON arrived at the police station to complain about the theft .

It appears that on DATE the police attempted to bring the applicant before the prosecutor and a judge . However , since it was too late , the prosecutor ordered the applicant to be brought before him early the next day . The applicant was transferred to ORG to be detained .

On DATE the applicant was first brought before the GPE public prosecutor ’s office and later before ORG , where he denied the accusations against him . The applicant was represented by a lawyer appointed by the Bar . The court remanded him in custody .

On DATE the GPE public prosecutor filed a bill of indictment with ORG , accusing the applicant and PERSON of theft on DATE and of attempted theft on DATE in CARDINAL different houses . The charges were brought under Articles CARDINAL and CARDINAL of LAW .

Criminal proceedings were instigated against the applicant and Mr GPE before ORG . At the hearing held on DATE the applicant stated that he did not know what PERSON had been doing during the first attempted theft and had only understood during the second attempted theft . The applicant , who was represented by a lawyer , maintained that he had never entered anyone ’s house or stolen anything and that at the time of the events , once he had understood what his friend was doing during the second attempted theft , on being told to run he had done so . The court ordered the release of Mr GPE and the applicant pending trial .

On DATE the applicant filed an official complaint with the GPE public prosecutor ’s office against CARDINAL police officers , whom he believed to be working at the PERSON police station . In his complaint , the applicant submitted that at that police station he had received punches and kicks to his stomach , his head had been hit against a wall and he had been stripped naked , hosed with cold water , threatened with electric shocks and made to wait in the cold . He further complained that he had been unlawfully deprived of his liberty , since he had been arrested at TIME on DATE but brought before a judge only on DATE .

On DATE the GPE public prosecutor Mr GPE decided not to prosecute CARDINAL police officers from the PERSON police station , CARDINAL police officers from ORG and QUANTITY police officers from ORG on the ground that there was no evidence to substantiate the applicant ’s allegations of ill - treatment . In particular , the prosecutor , referring to the record of the arrest , considered that the findings of the medical report were consistent with the injuries sustained by the applicant when he had fallen during his arrest . He further noted that the medical report had stated that these bruises were old .

On DATE the applicant objected to the above decision .

On DATE ORG dismissed the applicant ’s objection concerning the alleged ill - treatment . In this connection , it held that , apart from the bruises sustained by the applicant while he had been running from the police and had fallen , there was no physical evidence of ill - treatment . On the other hand , it upheld the applicant ’s objection regarding his deprivation of liberty on the ground that the applicant DATE a minor – had been brought before the prosecutor at TIME on DATE , whereas the prosecutor had asked at TIME that he be brought before him immediately . The court therefore decided that criminal proceedings should be instigated against the police officers for abuse of their position . That decision was served on the applicant ’s lawyer on CARDINAL DATE .

In the meantime the Security Directorate initiated a disciplinary inquiry into the applicant ’s allegations of wrongful deprivation of liberty as regards the length of his detention . On DATE ORG , relying on the evidence in the case file , including the statements by the applicant and his mother , found that there was no need to impose a disciplinary penalty on the CARDINAL accused police officers from ORG . That decision was served on the applicant ’s lawyer on DATE .

At a hearing held on DATE the first - instance court heard evidence from the applicant . He submitted that he had been beaten at the police station by CARDINAL dark - skinned police officer and that there had been others next to him . The applicant asserted that if he saw them he would be able to recognise them . He further stated that he had not lodged a complaint against the police officers .

In DATE the first - instance court acquitted the police officers . The applicant appealed . The case is pending before ORG .

NORP The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , ORG CARDINAL-XII ( extracts ) ) , and PERSON and Others v. GPE ( nos . LOC and QUANTITY , § § CARDINAL , CARDINALIV ( extracts ) ) .


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

On CARDINAL DATE the applicant was arrested by the militia because he had taken part in a street demonstration in LOC . Subsequently , he was detained on remand on suspicion of having participated in an illegal assembly . On DATE the ORG ( PERSON ) convicted the applicant of participating in an illegal assembly constituting a violent attack against third persons and public property ( an offence outlawed by section CARDINAL § CARDINAL of LAW of DATE ) and sentenced him , under martial law as then in force , to DATE imprisonment . The court of first instance found , inter alia , that the applicant , while participating in the demonstration ( commemorating the anniversary of the LAW of CARDINAL DATE ) had shouted anti - government slogans and hurled insults at the militia officers ; had unfurled the national flag on a monument ; and , when the militia forces had attempted to put down the demonstration , had thrown stones at them from the street barricades , thus destroying public property ( i.e. militia vans and park benches ) . On DATE ORG ( Sąd Najwyższy ) upheld the first - instance judgment .

On DATE a panel of CARDINAL judges , sitting as ORG , on an extraordinary appeal filed by ORG ) , quashed both the above - mentioned judgments and acquitted the applicant , finding that he had not committed any offence but had merely exercised his fundamental civil liberties as " he had taken part in a peaceful and patriotic demonstration " . On this last point , ORG stressed that there was no doubt that the demonstration , regardless of whether it had been “ legal ” or “ illegal ” under the law as then in force , had not been intended to be a “ violent attack against third persons or property ” . Moreover , the violent clash between the demonstrators and the militia forces had been a simple consequence of and an inevitable response to the brutal attack by the latter on the demonstrators with , inter alia , truncheons , tear - gas bombs and water - cannons .

On DATE the applicant lodged a request based on section CARDINAL of LAW with ORG . He sought compensation from ORG for his wrongful conviction in DATE and his unjustified detention which had lasted DATE in all . He requested the court to award him an unspecified sum in damages for loss of earnings , injuries allegedly sustained by him in the course of his detention and damage to his health resulting from imprisonment . At the material time the applicant was detained in FAC where he was serving a sentence imposed in other criminal proceedings .

On DATE the Chief Justice of the ORG informed the applicant that the above request had been referred to ORG of that court on DATE .

In a letter of DATE the applicant requested the court to inform him of the progress of the proceedings .

On DATE the ORG ordered the applicant to specify the amount of the damages sought by him and to produce documents relating to the injuries sustained by him during his detention . The applicant specified the amount of the damages in a pleading filed with the court ’s registry on DATE .

On DATE the applicant requested the court to deal with his request as soon as possible . On DATE the court informed him that it was dealing with requests for compensation submitted in DATE . The applicant 's attention was drawn to the fact that he had failed to submit the documents requested on DATE . The applicant produced the documents in question on an unspecified date in DATE and requested the court to list a hearing .

On DATE the applicant complained to the ORG ( PERSON ) , the Minister of ORG and ORG ( Sąd Apelacyjny ) about the slow conduct of the proceedings in his case . On an unspecified date his complaints were referred to the Chief Justice of ORG , who replied thereto on DATE . The Chief Justice informed the applicant that there were CARDINAL similar compensation cases registered with ORG of that court and that the applicant ’s case was the twentieth on the list . As a consequence , it was difficult to foresee precisely when a hearing in his case would be held .

On DATE the applicant complained to ORG about the length of the proceedings in his case . On DATE his complaint was referred to ORG which , on DATE , informed the applicant that his case was currently the sixteenth on the list and that it would probably be dealt with in DATE .

In the meantime , on DATE , the applicant had submitted a pleading to ORG , increasing his claims . In particular , he requested the court to order the ORG to pay him in addition a DATE amount to compensate him for loss of opportunities . He also informed the court that he was unable to produce any documents relating to the injuries sustained by him during detention since his medical records of DATE were kept in the prison archives and they could be disclosed only upon the court ’s order . On DATE the court ordered the competent prison authorities to produce the relevant documents ; they were filed with the court on DATE . On DATE the applicant requested the court to list a hearing .

In a pleading filed with the court ’s registry on DATE the applicant increased his claims to an unspecified sum .

On DATE the ORG , in reply to a subsequent complaint from the applicant , informed him that it was still dealing with other requests for compensation submitted prior to his . The court stated , however , that a hearing in his case would be listed as soon as possible .

On DATE the applicant again complained to ORG about the excessive length of the proceedings . In a letter of CARDINAL DATE the court informed him that it was not feasible to list a hearing for DATE in DATE .

On DATE the applicant complained to the Chief Justice of ORG about the length of the proceedings and asked him when the first hearing would be held . On DATE the Chief Justice informed the applicant that his case would probably be dealt with in DATE or DATE . He also admitted that , on account of substantial delays in dealing with similar requests for compensation , previous indications as to a possible hearing date appeared to have been inaccurate .

On DATE the applicant complained to the Minister of ORG about inactivity on the part of ORG .

On DATE the ORG listed the first hearing in the applicant 's case for DATE . During the hearing the court took evidence from the applicant who stated , inter alia , that in DATE he had conducted a business activity and had been a member of ORG . The court adjourned the trial sine die since it found that evidence needed to be obtained from medical experts in order to assess whether there was a causal link between the state of the applicant 's health and the detention imposed in DATE . The court also considered it necessary to hear evidence from the applicant ’s sister and to call for documentary evidence of financial loss ( if any ) sustained by the applicant as a result of his conviction and the deprivation of his liberty .

On DATE the court ordered that the following documentary evidence be obtained : firstly , the applicant ’s updated medical records from the relevant prison authorities ; secondly , written information from the competent tax office as to whether the applicant had paid any tax on his income for DATE and DATE ; thirdly , a certificate from the applicant ’s former employer stating the applicant ’s average DATE salary over DATE his detention ( i.e. from DATE to CARDINAL DATE ) and , fourthly , written information from ORG on whether the applicant had been a member of the guild and had paid membership fees .

On DATE the court received the applicant ’s medical records . On DATE the tax office informed the court that the applicant had not been registered as a taxpayer conducting business activities in DATE . Since the company by which the applicant had formerly been employed had failed to produce the certificate requested , the court issued CARDINAL reminders to it , on DATE and DATE . On DATE the applicant ’s employer provided the court with the certificate in question .

Meanwhile , in a letter of DATE , the applicant had asked the trial court when the proceedings would be terminated . On DATE the court informed him that procedural steps had been taken to obtain the evidence relevant for the determination of his claims .

On DATE and DATE the applicant complained to the Chief Justice of ORG about the length of the proceedings . On DATE the Chief Justice informed the applicant that on DATE the case - file had been sent to experts at ORG of ORG . Therefore , the date of the next hearing could not be fixed until the experts had submitted their report .

On DATE the court , after finding that the experts had not fixed a date for the applicant to be examined , ordered that the registry supervise the experts’ work and report to the presiding judge on the progress of the process of obtaining evidence .

On DATE the applicant was examined by a neurologist who expressed the opinion that he should also undergo a brain tomography examination . ORG of ORG , at the court ’s request , fixed the date of the examination for DATE .

In the meantime , on DATE , the applicant had been granted TIME leave from prison and had failed to return . He did not keep his appointment for the brain tomography examination .

On DATE the ORG stayed the proceedings , after being informed by the prison authorities that the applicant was still being searched for . On DATE the court resumed the proceedings as the applicant had informed it that service of a summons or other court documents on him could be effected at his home address . Subsequently the court requested the experts to fix another date for the brain tomography examination . The examination was to be carried out on CARDINAL DATE and the court ordered that on DATE the applicant , who had in the meantime been redetained , be taken from prison to the experts .

However , on DATE , the Chief Justice of the ORG informed the President of ORG of that court that the applicant , in his CARDINAL letters dated DATE , had refused to consent to the brain tomography examination and had threatened to go on hunger strike in order to obtain a date for the next hearing .

On CARDINAL DATE the trial court informed the experts that the applicant was unwilling to undergo the brain tomography examination and asked them whether they would be able to prepare their report on the basis of the materials contained in the case file . The experts submitted their report to the court on DATE .

On DATE the court again requested ORG to submit information on whether the applicant had been a member of the guild in DATE and DATE . On DATE the court was informed , by telephone , that the applicant had not been a member of the guild from DATE . Later , on CARDINAL DATE , the court established on the basis of unspecified evidence that the applicant , even though he had previously alleged that he had commenced his business activity in DATE , had in fact registered his business with the relevant authorities on DATE .

On DATE the ORG held a hearing and heard evidence from the applicant ’s sister . During the hearing the applicant confirmed that he was unwilling to undergo the brain tomography examination . On DATE the court pronounced a decision granting the applicant 's claims in part . It awarded him the sum of MONEY ( ORG ) , of which LAW was for pecuniary damage and CARDINAL for non - pecuniary damage .

On DATE , on the applicant 's appeal of CARDINAL DATE , ORG quashed the first - instance decision and remitted the case to ORG , finding , in particular , that the lower court had failed to establish properly a causal link between the state of the applicant ’s health and his detention . In the meantime , on DATE , the applicant had requested the court to terminate the proceedings as soon as possible .

On DATE the ORG ordered that a fresh report be obtained from the neurologist who had prepared the previous report .

In his pleading of CARDINAL DATE the applicant increased his claims to an unspecified sum .

On CARDINAL DATE the applicant complained to the court that the length of the proceedings in his case was excessive . On DATE the court informed him that the next hearing would be listed after obtaining the report from the expert .

On DATE the expert informed the court that he was unable to prepare a more extensive report on the applicant ’s state of health without the help of the brain tomography examination .

In a letter of CARDINAL DATE , received at the court ’s registry on DATE , the applicant requested the court to proceed with his case .

On DATE the court held a hearing and heard evidence from the expert . The trial was adjourned since the court decided that evidence should be heard from CARDINAL witnesses , namely GPE , a doctor , and GPE , the prosecutor who had detained the applicant on remand in DATE . Until DATE the court was unable to establish the address of ( and thus to serve a summons on ) GPE

On DATE the court held the next hearing and heard evidence from GPE ; however , the trial was adjourned to DATE since ORG had failed to appear before the court . On DATE the trial was again adjourned for the same reason . During a subsequent hearing , which was held on DATE in the applicant ’s presence , the court heard evidence from ORG and pronounced a decision granting the applicant compensation in the sum of LAW for pecuniary and non - pecuniary damage . The full text of the decision was served on the applicant on DATE . Since he did not appeal against it within the statutory time - limit of DATE , the decision became final and enforceable on DATE . On DATE the applicant went to ORG of ORG and received the sum awarded , in cash .

At the material time the domestic provisions setting out the ORG ’s liability for wrongful conviction or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him were contained in LAW of LAW Code of Criminal Procedure of DATE , entitled " Compensation for unjustified conviction , detention on remand or arrest " . The Code is no longer in force as it was repealed and replaced by LAW DATE , currently referred to as the “ GPE Procedure ” .

Section CARDINAL of the Code of Criminal Procedure of DATE provided , insofar as relevant :

" CARDINAL . An accused who , as a result of the reopening of the criminal proceedings against him or of lodging an extraordinary appeal , has been acquitted or resentenced under a more lenient substantive provision , shall be entitled to compensation from ORG for the damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him .

The provisions of the present chapter shall be applied by analogy to manifestly unjustified arrest or detention on remand . "

Section CARDINAL of that Code provided , insofar as relevant :

" CARDINAL . A request for compensation shall be submitted to a regional court in whose jurisdiction the decision giving rise to the request for compensation was given at first instance . ...

The court shall consist of CARDINAL judges . Cases relating to requests for compensation shall be given priority and no court fees shall be required from the applicant . "

A request for compensation based on the foregoing provisions was examined by a criminal court . In those proceedings the court applied the rules of criminal procedure ; however , in respect of such questions as the evaluation of the pecuniary or non - pecuniary damage sustained by an accused , the court applied the relevant principles set out in LAW . The person concerned was entitled to compensation for any financial loss ( e.g. loss of work or earnings ) , damage to health and psychological harm resulting from the execution of the sentence or detention on remand . In order to determine the amount of the damages due for loss of work or earnings the court was obliged to establish the earning capacity which the applicant would have had if he had not been convicted and detained and to deduct from the sum so determined his necessary everyday expenses and , if appropriate , other spending or losses ( see the decision of ORG of DATE , no . ORG CARDINAL/CARDINAL , published in ORG CARDINAL/CARDINAL/CARDINAL ) .

The court primarily applied the rules of evidence contained in LAW . However , according to well - established legal theory and practice , the court also applied the relevant rules of civil procedure . In particular , since the main issue involved in such proceedings was financial reparation for a miscarriage of justice , and not the determination of any criminal charge , the court applied a general principle of civil procedure that the burden of producing evidence and the burden of proof lay on the claimant .

In such matters as the admissibility and assessment of evidence the court essentially applied the relevant provisions of LAW , providing , in particular , that the court could admit evidence either of its own motion or at the parties’ request and assess it on the basis of its own conviction . However , in cases where it was impossible or difficult to establish with precision the facts relevant for the determination of the damages due for loss of work or earnings ( such as the earning capacity of the applicant , his income and expenses ) , the court was required , applying by analogy section CARDINAL of the Code of Civil Procedure , to fix the amount of such damages on the basis of its own assessment of all the relevant circumstances ( see the resolution reached by ORG on DATE , no . PERSON . PERSON , published in OSN DATE , no . CARDINAL , item CARDINAL )

Under LAW of LAW organs conducting criminal proceedings were , if necessary , obliged to inform the parties to the proceedings of their procedural rights and duties .

Mr PERSON applied to ORG on DATE . He alleged firstly that the proceedings in ORG , which concerned his claim for compensation for his wrongful conviction under martial law and his unjustified detention , had been unreasonably long . He further maintained that , in CARDINAL separate sets of criminal proceedings against him , the NORP courts had convicted him on the basis of insufficient evidence and that they had incorrectly assessed the evidence presented before them . In respect of CARDINAL of those CARDINAL sets of criminal proceedings against him , the applicant also alleged that his right to be released pending trial had not been respected . Lastly , the applicant complained about the fact that he had been refused a temporary suspension of his sentence . He did not invoke any specific provision of the LAW in support of his complaints .

The Commission examined the applicant ’s complaints under LAW and LAW . On DATE ORG ) declared the application ( no . CARDINAL/CARDINAL ) admissible insofar as it concerned the complaint about the length of the proceedings relating to the determination of the applicant ’s claim for compensation for wrongful conviction and unjustified detention . It declared the remainder of the application inadmissible . In its report of CARDINAL DATE ( former LAW expressed the opinion that there had been a violation of LAW ( CARDINAL votes to CARDINAL ) . The full text of the ORG ’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a GPE and GPE national who was born in DATE and is currently detained at FAC . He was represented before the ORG by PERSON , a firm of solicitors based in GPE .

NORP In DATE the applicant was elected to ORG as a member of ORG ( “ ORG ” ) . In DATE he became the President of the ORG pursuant to a power - sharing agreement between the CARDINAL principal political parties .

NORP In DATE , ORG , in the absence of the applicant , adopted a declaration asserting the sovereignty of ORG . The ORG subsequently established ORG ( “ ORG ” ) . The applicant was elected President of ORG . He remained President of ORG until DATE . He was also a member of ORG and , from DATE until DATE , he was an active member of the Presidency of the Bosnian - Serb Republic .

On DATE an indictment was first issued against the applicant by ORG for the former GPE ( “ ORG ” ) in GPE .

The applicant was arrested on DATE by ORG in GPE and transferred to GPE on DATE .

In an amended indictment dated DATE the applicant was charged with CARDINAL counts , including genocide and complicity in genocide , persecution , extermination , murder , deportation and inhumane acts . Criminal responsibility was charged under ORG CARDINAL(CARDINAL ) and CARDINAL ) of the Statute of the ORG ( see paragraph CARDINAL below ) . The Prosecutor alleged that the applicant had participated , as a co - perpetrator or aider and abettor , in a joint criminal enterprise which had as its objective the permanent removal , by force or other means , of NORP and NORP from large portions of GPE through the commission of the crimes mentioned above . The crimes were alleged to have taken place in all CARDINAL municipalities of GPE DATE and DATE .

On DATE ORG of the ORG found the applicant responsible , pursuant to LAW , for participating in a joint criminal enterprise to achieve the permanent removal of NORP and NORP from large portions of GPE through the commission of crimes . It convicted the applicant of CARDINAL counts of crimes against humanity under LAW ( see paragraph CARDINAL below ) , namely persecution , extermination , murder , deportation and inhumane acts ( forcible transfer ) . He was sentenced to DATE imprisonment , but granted credit for the time spent in detention , which at the date of judgment amounted to DATE .

NORP The prosecution filed an appeal against the applicant ’s sentence on DATE . On CARDINAL DATE the applicant filed a notice of appeal arguing that his convictions should be quashed or that a re - trial should be ordered . An amicus curiae was appointed by ORG and , on DATE , he also filed a notice of appeal arguing for the quashing of the convictions or a retrial . The appeals were heard on DATE .

On DATE ORG allowed some of the grounds of appeal lodged by the applicant and by the amicus curiae . It reversed many of the applicant ’s convictions for persecution , extermination , murder and deportation . However , it upheld his convictions for crimes against humanity in respect of specific instances of persecution , deportation and inhumane acts ( forcible transfer ) . As to whether a retrial should be ordered , the judgment of ORG noted :

“ CARDINAL . ... [ T]he convictions for the majority of crimes , of which PERSON had been found guilty , have been quashed . However , convictions for persecution , deportation and forcible transfer have been upheld , and the gravity of these crimes requires a severe and proportionate sentence . Therefore , in the circumstances of this particular case , ORG considers that it is not in the interests of justice to remit the case for further proceedings . ”

ORG considered the various relevant factors set out in LAW ( “ the Rules ” ) in determining the appropriate length of sentence ( see paragraphs CARDINAL , DATE and CARDINAL below ) . It noted inter alia that the crimes of which the applicant had been found guilty were among the most severe crimes known to mankind . It further identified relevant aggravating and mitigating features . ORG imposed a sentence of DATE imprisonment , subject to credit for the time spent in detention , which at the date of the appeal judgment amounted to DATE .

NORP The applicant remained in detention in the GPE throughout the trial and appeal proceedings .

On DATE the applicant was transferred to GPE to serve his sentence pursuant to an order of the President of the ORG dated DATE . His transfer was governed by an agreement between ORG and GPE ( “ the ORG - GPE agreement on enforcement of sentences ” – see paragraphs CARDINAL below ) .

Pursuant to the terms of the agreement , GPE was bound by the duration of the sentence imposed and the conditions of imprisonment were governed by the law of GPE , subject to the supervision of the ORG .

The ORG - GPE agreement on enforcement of sentences and LAW provided that GPE was required to notify the ORG if , pursuant to its law , the applicant became eligible for early release . The decision on early release would be taken by the President of the ORG on the basis of the interests of justice and the general principles of law .

On DATE the ORG was notified by GPE authorities that the applicant would be eligible on DATE for consideration for release on parole licence , after having served CARDINAL of his sentence . A Seconded Probation Report dated DATE , a ORG dated DATE and a Prison Assessment for ORG dated DATE were attached to the notification . These were forwarded by the ORG to the applicant for comment .

The applicant made submissions in reply , referring to the terms of ORG on the procedure for determining applications for pardon , commutation of sentence and early release ( see paragraphs CARDINAL - CARDINAL below ) . He emphasised that he had been acquitted of charges of extermination , murder , genocide and complicity in murder in breach of the rules and conventions of war . He referred to the sentence imposed on , and time spent in detention by , his co - accused at trial , for the purposes of comparison . He also expressed remorse for the crimes committed and indicated his willingness to co - operate with ORG . Finally , he emphasised that his behaviour while in detention had been excellent .

The President of the ORG handed down his decision on the applicant ’s early release on DATE . He noted at the outset that although the applicant had served CARDINAL of his sentence , it was the practice of the ORG to consider convicted persons to be eligible for early release when they had served CARDINAL of their sentences . In the applicant ’s case , this would be on DATE .

NORP The President examined each of the factors set out in the Practice Direction on early release in turn . As regards comparison with similarly - situated prisoners , he rejected the applicant ’s suggestion that the case of his co - accused supported his early release , observing that his co - accused had , unlike the applicant , entered into a plea agreement with the prosecution and had served CARDINAL of her sentence when she was released .

As regards the gravity of the applicant ’s crimes , the President referred to ORG finding that the convictions were among the most severe crimes known to mankind and that their gravity required a severe and proportionate sentence . He concluded that the very high gravity of the applicant ’s offences was a factor that weighed against his early release .

In so far as rehabilitation was concerned , the President reviewed the applicant ’s behaviour while in prison , his statements of remorse and the information he had provided regarding his plans post - release . He found that the applicant had demonstrated some rehabilitation , which militated in favour of his early release .

Finally , concerning cooperation with the Prosecutor , the President found the applicant ’s assertion that he had assisted the Prosecutor by providing documents and encouraging officials to give statements to be unsubstantiated . It could not therefore be considered a positive factor in respect of his early release . The applicant ’s willingness to assist post - conviction was , in the absence of any instance where his assistance had been requested , found to be a neutral factor .

NORP The President concluded :

“ CARDINAL . While Mr. PERSON has displayed some evidence of rehabilitation , I am of the view that there remain significant factors that weigh against granting him early release . Mr. PERSON ’s crimes are of a very high gravity , involving a widespread displacement of the non - NORP population in GPE and GPE , which caused great suffering . Moreover , in respect of the requirement that the President shall take into account the treatment of similarly - situated prisoners , the practice of the ORG is to consider the eligibility of a convicted person only after he has served CARDINAL of his sentence ; therefore , the fact that Mr. PERSON has only recently completed serving CARDINAL of his sentence does not weigh in favour of his early release .

Taking all of the foregoing into account and having considered those factors identified in LAW [ see paragraph CARDINAL below ] , I am of the view that Mr. PERSON should not be granted early release .

I note that my colleagues unanimously share my view that Mr. PERSON should be denied early release . ”

No appeal was possible against the President ’s decision .

At the relevant time , section ORG ) of MONEY DATE provided that as soon as a long - term prisoner had served CARDINAL of his sentence , it would be the duty of the Secretary of ORG to release him on licence . Section CARDINAL(CARDINAL ) defined “ long - term ” prisoner as a person serving a sentence of imprisonment for a term of DATE or more .

Section CARDINAL provided to the Secretary of ORG an additional discretionary power to release long - term prisoners before the CARDINAL point of their sentence and provided that :

“ ( CARDINAL ) After a long - term prisoner has served CARDINAL of his sentence , the Secretary of ORG may , if recommended to do so by the [ ORG , release him on licence . ”

Under ORG ( ORG ) Order DATE the Secretary of ORG transformed his section CARDINAL discretion to release longterm prisoners serving a sentence of imprisonment for a term of DATE into a duty . For those serving sentences of DATE or more , the Secretary of ORG retained his discretion to order early release after the halfway point and before CARDINAL of the sentence had been served .

DATE LAW provides that the ORG has the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former GPE since DATE .

Article CARDINAL provides :

“ The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict , whether international or internal in character , and directed against any civilian population :

( a ) murder ;

( b ) extermination ;

( c ) enslavement ;

( d ) deportation ;

( e ) imprisonment ;

( f ) torture ;

( g ) rape ;

( h ) persecutions on political , racial and religious grounds ;

( i ) other inhumane acts . ”

Pursuant to Article CARDINAL(CARDINAL ) , a person who planned , instigated , ordered , committed or otherwise aided and abetted in the planning , preparation or execution of a crime referred to in , inter alia , LAW is to be considered individually responsible for the crime . Article CARDINAL ) provides that the fact that any of the relevant acts were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts , or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators .

Article CARDINAL sets out factors relevant to determining the appropriate length of sentence . It provides that the ORG must have recourse to the general practice regarding prison sentences in the courts of the former GPE and should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person .

DATE addresses enforcement of sentences and provides that imprisonment will be served in a ORG designated by the ORG from a list of GPE which have indicated their willingness to accept convicted persons . It further provides that such imprisonment will be in accordance with the applicable law of the ORG concerned , subject to the supervision of the ORG .

Article CARDINAL deals with pardon or commutation of sentences . It provides :

“ If , pursuant to the applicable law of the ORG in which the convicted person is imprisoned , he or she is eligible for pardon or commutation of sentence , the ORG concerned shall notify ORG accordingly . The President of ORG , in consultation with the judges , shall decide the matter on the basis of the interests of justice and the general principles of law . ”

The ORG - GPE agreement on enforcement of sentences was adopted following GPE confirmation of its willingness , pursuant to LAW , to enforce sentences imposed by the ORG .

Article CARDINAL of the Agreement provides :

“ CARDINAL . In enforcing the sentence pronounced by ORG , the competent national authorities of the GPE shall be bound by the duration of the sentence .

The conditions of imprisonment shall be governed by the law of GPE , subject to the supervision of ORG ...

The conditions of imprisonment shall be equivalent to those applicable to prisoners serving sentences under the law of GPE and shall be in accordance with relevant human rights standards . ”

Pursuant to LAW ) GPE is required to notify the registrar of the ICTY DATE prior to the point at which early release would be considered for an equivalent domestic sentence in the jurisdiction of GPE .

Article CARDINAL of the agreement , which deals with early release , pardon or commutation of sentence , provides :

“ CARDINAL . If , pursuant to the applicable national law of GPE , the sentenced person is eligible for early release , pardon or commutation of the sentence , the GPE shall notify this to the Registrar , in advance of such eligibility , and shall include in any such notification all the circumstances pertaining to the eligibility for early release , pardon or commutation of the sentence .

The President of the International Tribunal shall determine , in consultation with the Judges of ORG , whether any early release , pardon or commutation of the sentence is appropriate ... If the President determines that an early release , pardon or commutation of the sentence is not appropriate , the GPE shall act accordingly . ”

Rule CARDINAL sets out the factors relevant to determining the appropriate length of sentence , namely the factors to which LAW refers ; any aggravating or mitigating circumstances , including substantial cooperation with the Prosecutor before or after conviction ; the general practice regarding prison sentences in the courts of the former GPE ; and the extent to which any penalty imposed by a court of any ORG for the same act has already been served . Credit must be given for time spent in pre - trial detention .

Part CARDINAL of the Rules makes provision for pardon and commutation of sentences . Rule CARDINAL requires the ORG of imprisonment to notify the ORG , in accordance with LAW , if a convicted person is eligible for pardon or commutation of sentence . Pursuant to LAW , the President shall determine whether pardon or commutation is appropriate .

Rule CARDINAL provides :

“ In determining whether pardon or commutation is appropriate , the President shall take into account , inter alia , the gravity of the crime or crimes for which the prisoner was convicted , the treatment of similarly - situated prisoners , the prisoner ’s demonstration of rehabilitation , as well as any substantial cooperation of the prisoner with the Prosecutor . ”

The President of the ORG , after consultation with other judges , the prosecutor and the registrar , issued ORG on early release in order to establish an internal procedure for the determination of applications for pardon , commutation of sentence , and early release of persons convicted by the tribunal .

The Practice Direction provides that the ORG of imprisonment is required , where practicable , to notify the ORG at least forty - five days prior to the date on which a convicted person becomes eligible for early release . ORG also sets out the applicable procedure and includes guidance on requests for reports , participation of the convicted person and consultation with other judges .

Paragraph CARDINAL of the Practice Direction explains that the President shall determine whether to grant early release having regard to the criteria specified in Rule CARDINAL of the Rules and any other relevant information , and after consultation with other judges .

The appendix to ORG Recommendation on conditional release contains principles intended to guide GPE in their legislation , policies and practice on conditional release .

Principle CARDINAL provides :

“ The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit . They should also be realistic in the sense that they should take into account the ORG personalities and social and economic circumstances as well as the availability of resettlement programmes . ”

Principle CARDINAL provides :

“ The criteria for granting conditional release should be applied so as to grant conditional release to all prisoners who are considered as meeting the minimum level of safeguards for becoming law abiding citizens . It should be incumbent on the authorities to show that a prisoner has not reached that level . ”

Paragraph CARDINAL of the Explanatory Memorandum accompanying the Recommendation notes :

“ In a discretionary release system the most important decision to be made is which criteria will be used to determine whether a prisoner can or can not be granted release . The primary aim of these criteria should be to identify those prisoners who can be released without posing an unbearable risk to safety in the community . Whether and which of these criteria have been fulfilled will also be a relevant consideration in deciding on the conditions or supervision measures to be imposed . The personality and socio - economic circumstances of the prisoner should always be taken into account .

The criteria should be clear and explicit so as to avoid erratic decisions or disparities in decision - making . This requirement is also in the interest of the prisoners and the staff involved in the preparation of release . The lack of clear and explicit criteria might lead to reduced confidence in the system and less motivation on the part of prisoners to participate actively in the preparation for conditional release .

A similar lack of confidence or motivation would be produced if the criteria were felt to be unrealistic , in other words , impossible to fulfil given the prisoner ’s personal and social circumstances ( such as age , family situation , health , professional qualifications etc ) and the unavailability of resettlement programmes

Care should also be taken to avoid criteria that are too closely related to the type of the offence committed , or the dangerousness of the offender at the start of his / her prison sentence . It has to be recalled that such criteria have already been used to decide on the length of the sentence and the classification and sentence plan of the prisoner . The decision to grant conditional release should be based on realistic criteria related to the present situation and prospects of the prisoner . ”


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

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

The applicant was born in DATE and lives in GPE .

According to the applicant , on DATE he was assaulted by officers of ORG at the entrance to his apartment . When he lost consciousness the police allegedly planted evidence on him , putting a wrap of heroin into his pocket . Later , the police conducted a search of his apartment . As a result , some more wraps of drugs ( allegedly also planted ) , a gun and chemical equipment were discovered . The applicant alleges that certain property items ( for example , money and jewellery ) were unlawfully taken during this search .

After the search the applicant was taken to the police station , where he remained until DATE when the Shevchenkivsky ORG of GPE ( “ the ORG ” ) remanded him in custody . The applicant further contends that he had no means ( namely that he lacked stationery ) to appeal against the court detention order and that subsequently , although he sent an appeal , it was not examined and allegedly was lost .

The applicant was provided with a lawyer through the legal aid scheme on DATE and the latter 's performance was allegedly poor and of little help to his defence . In particular , notwithstanding the applicant 's requests that the lawyer visit him more frequently and consult on his case , that lawyer allegedly visited him only on DATE and DATE ; furthermore , the lawyer allegedly did not attend the court hearings on DATE and DATE when the court remanded the applicant in custody . During the trial , the applicant was legally represented but it is not clear whether this representation was undertaken by another lawyer or by the same lawyer that the applicant claims was deficient .

According to the applicant , he requested on several occasions that the trial court summon PERSON , his partner , but the court rejected his requests .

On DATE ORG found the applicant guilty of drug dealing and sentenced him to DATE imprisonment . In doing so , the court relied on evidence seized during the search on DATE , forensic examinations and witnesses ' testimonies .

The applicant appealed , challenging , inter alia , the lawfulness of the search and the evidence produced against him as a result of it . On DATE , ORG allowed the applicant 's appeal in part and reduced his sentence to DATE . It found that the search was lawful as the applicant had consented to it and that the conviction was not based solely on evidence produced as a result of the search .

NORP The applicant , who was no longer legally represented , appealed to ORG , challenging his conviction on points of law . He also expressed his wish to be present at the hearing .

On DATE , in the presence of the public prosecutor but in the absence of the applicant , a panel of CARDINAL judges of ORG of GPE considered the appeal on points of law submitted by the applicant . Having heard the prosecutor , who maintained that the appeal was unsubstantiated , the panel found that there were no grounds for the cassation review of the case and dismissed the applicant 's appeal . In doing so it nevertheless examined the case on the merits . According to the applicant , he was not informed of the date of the hearing at ORG of GPE . He was notified of ORG decision on DATE .

On DATE the applicant complained to the local prosecutor about the actions of the police on DATE .

On DATE the prosecutor refused to institute criminal proceedings because of the lack of evidence that a crime had been committed . In particular , he found that the applicant had attempted to flee and had resisted the policemen .

According to the applicant , he challenged this decision before ORG , which upheld the initial decision on DATE . The applicant made a further appeal but , according to him , the court found that the latter decision was not subject to appeal . He also raised this issue during his trial and in appeals against his conviction . In a judgment of CARDINAL DATE ORG upheld the conclusions of the impugned prosecutor 's decision ; the higher courts did not expressly address this issue .

In DATE the applicant instituted civil proceedings in the ORG seeking return of his property that was allegedly subject to unlawful seizure . By a decision of CARDINAL DATE , the court rejected the claim as a result of procedural shortcomings ( for instance , failure to indicate the defendant , to pay the court fee and so on ) . It appears that the applicant did not appeal against this decision .

The relevant provisions of LAW ( “ the LAW ” ) ( as worded at the material time ) read as follows :

“ The following decisions may be reviewed in cassation proceedings :

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

CARDINAL ) NORP 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 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 court of cassation , which shall be 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 .

A case assigned for examination , with notice served on the prosecutor and the persons referred to in LAW , shall be examined by the court of cassation , which shall be 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 court of cassation 's judges shall be conducted in accordance with the requirements provided for by Articles CARDINAL and CARDINAL of this Code . ”

Other provisions of the Code concerning examination of a case by a court of cassation are set out in Arkhipov v. GPE ( ( dec . ) , no . CARDINAL , CARDINAL DATE ) .

On DATE CARDINAL § CARDINAL of the Code was amended to remove the prosecutor from involvement in preliminary hearings before a court of cassation .


JANCEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

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

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

The applicant and Mr Dz . I. ( “ the plaintiff ” ) are neighbours whose plots of land are adjacent . On DATE the applicant constructed a wall , QUANTITY long and QUANTITY high , and put CARDINAL concrete bricks on a passage that the plaintiff used to access his property . The plaintiff brought a civil action requesting ORG ( “ the first - instance court ” ) to establish that the applicant disturbed his possession ( смеќавање на владение ) and to order reinstatement in previous state .

On DATE the first - instance court allowed the plaintiff ’s claim and ordered the applicant to demolish the wall and remove the bricks . The transcript of a hearing held on that date did not contain any indication that the decision or its operative provisions were delivered .

The applicant appealed arguing inter alia that the first - instance court had not pronounced the decision publicly , as required under LAW ( see “ Relevant domestic law ” below ) . He further complained that that failure was incompatible with LAW .

On DATE ORG dismissed the applicant ’s appeal and confirmed the lower court ’s decision . As regards the applicant ’s arguments that the first - instance court ’s decision had not been pronounced publicly , the court stated that it was a procedural flaw that did not affect the validity of the decision . This decision was served on the applicant on DATE .

Section CARDINAL § CARDINAL of LAW of DATE provides that a decision is delivered immediately after the public hearing and is pronounced publicly by a single judge or presiding judge of the adjudicating panel .