Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;No violation of Art. 14+6-1 and 14+6-3-c;Not necessary to examine Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

ORG The applicant is a citizen of GPE , now residing in GPE , GPE . He entered GPE in DATE and was arrested in GPE ( Lower Austria ) on DATE on suspicion of fraud and misappropriation under a warrant issued by ORG ( PERSON ) . On DATE he was taken to GPE where , on DATE , ORG ( PERSON für PERSON ) remanded him in custody . On DATE he was transferred from GPE to ORG ( Landesgerichtliches Gefangenenhaus ) .

ORG The applicant was interrogated by police officers on DATE , DATE and DATE . During the questioning on CARDINAL DATE interpretation was provided by a prisoner who , however , had only a limited knowledge of LANGUAGE . The person who interpreted on DATE , whilst not a registered interpreter , was someone regularly asked to assist at police interviews when no registered interpreter was available . It can not be established from the evidence adduced whether the person who provided interpretation on DATE was a registered interpreter or not . In accordance with the usual practice the applicant received neither copies nor written translations of the records of these interrogations .

ORG Registered interpreters were present during the pre - trial interrogations by several investigating judges on DATE , DATE , DATE and DATE . The procedure followed was that the investigating judge put a question or a series of questions in NORP to the applicant through the interpreter and the applicant replied in LANGUAGE through the interpreter . The judge then had the typist record a summary of the applicant ’s answers which he considered relevant . The extent to which the recorded version was interpreted for the applicant at the end of the interrogation was disputed . On CARDINAL occasions the applicant refused to sign the record on the ground that it was written in a language he could not understand .

ORG On the applicant ’s motion granted by the competent court , an official legal aid defence counsel was appointed for him by ORG . This lawyer set out in writing the applicant ’s objections to his detention on remand . However , the applicant wrote to the court on DATE complaining that the lawyer did not speak LANGUAGE sufficiently well , and the lawyer asked to be relieved of his duties as counsel for the same reason . In view of this situation the remand review hearing of DATE was adjourned at the applicant ’s request . ORG ( Ratskammer ) instructed the investigating judge , inter alia , to take steps for the appointment of another lawyer with sufficient command of LANGUAGE . As a result Dr PERSON , a lawyer who is also a registered interpreter for the LANGUAGE language , was nominated legal aid defence counsel on DATE .

Dr NORP visited the applicant for the first time on DATE for TIME . On DATE he also appeared for the applicant at the adjourned remand review hearing before ORG . Immediately thereafter he lodged a complaint on the applicant ’s behalf against ORG decision to prolong the detention on remand . Subsequent visits by PERSON were made on DATE and DATE and DATE and CARDINAL DATE .

ORG On DATE the indictment , a document of CARDINAL pages , was served on the applicant at a session before ORG . The applicant was charged with aggravated fraud ( sections CARDINAL and CARDINAL § CARDINAL of LAW ) on CARDINAL counts and misappropriation ( section QUANTITY of LAW ) on CARDINAL count . The alleged offences consisted essentially of failure to pay certain bills , notably rent and telephone invoices . A registered interpreter was present , but the extent to which the indictment was interpreted is in dispute between the parties . The session lasted TIME . The defence counsel did not appear and was eventually contacted by telephone , when he informed the applicant that he would not attend the session since this would serve no useful purpose and advised against raising any objection to the indictment .

The minutes of this session record that the defendant was given notice of the indictment , that he asked for it also to be served upon his defence counsel , and that he entered an objection ( PERSON ) to it . His grounds for the objection included the following . He had already written CARDINAL letters presenting the evidence sought . Despite his repeated requests he had never received any of the telephone invoices he was accused of not having paid . He had also demanded to be confronted with incriminatory evidence but had never obtained this evidence for review . With the assistance of the judge he formulated a general objection that the indictment was defective and accordingly requested its review . According to a note appended to the minutes , PERSON refused to confirm by his signature that he had been given notice of the indictment for the reason that he did not as a matter of principle sign documents drafted in NORP .

Neither on this occasion , nor later , was PERSON provided with a written translation of the indictment .

ORG Upon return to his cell , the applicant wrote the following letter to his defence counsel :

" As you know I received the indictment DATE . Perhaps you would be kind enough to explain to me why you arranged to be telephoned instead of being present to give me advice ? How in [ deleted expletive ] name can you advise me before ever seeing that which you are to advise about ? The young doctor ? ? told me I had to make up my mind instantly concerning whether or not to appeal . He typed something out and when I made a correction by inking out an obvious mistake , the ? ? went [ deleted expletives ] . ‘ You can not alter what I write for you to sign , it is ORG . I told him to do the then appropriate thing with the paper and he ordered the interpreter ... to sign it .

... I wish you to give me legal advice concerning the indictment :

Are there grounds for appeal ?

What are the grounds available to appeal against an indictment ?

Can I call witnesses on my behalf and compel them to attend the trial ?

Will you assist me in a legal manner ?

It certainly appears as though you believe the decision on my guilt is pre - ordained otherwise you would not advise others that I will be found guilty without ever seeing the evidence , discussing it with me or ever seeing the indictment . Of course , you have advised me I would be freed on the same basis ... "

ORG DATE , on DATE , PERSON came to visit the applicant in prison and informed him that he would withdraw the objection to the indictment since it was bound to be rejected . This he did by a letter of DATE .

PERSON paid further pre - trial visits to the applicant on DATE , DATE and DATE . The applicant was absent from his cell for TIME , TIME respectively .

ORG On DATE the applicant wrote to PERSON in the following terms :

" ... I shall be writing PERSON [ the judge presiding over ORG competent to hear the case ] asking him to please help me to obtain EFFECTIVE legal counsel , in the event I do not see the evidence and file prior to DATE , which is DATE before the trial ! ... "

The applicant wrote another letter on DATE instructing PERSON to ensure the attendance at the trial of all witnesses against him and to summons CARDINAL defence witnesses to appear .

The same day PERSON filed a written motion for the hearing of CARDINAL witnesses , including PERSON , together with a motion for some of them to be enjoined to bring certain documents . He later filed additions to this evidentiary motion by telephone . In particular , he asked on DATE for PERSON to be summonsed to testify at the trial .

ORG On DATE , DATE , DATE ( or DATE ) and DATE the applicant sent letters to the presiding judge .

In his letter of DATE the applicant asked for trial in camera because of fears concerning his personal security . The contents of this letter were also explained over the telephone to the presiding judge by the prison legal officer , PERSON In view of these fears a detective officer in plain clothes was eventually asked to attend the trial .

The applicant ’s letters of CARDINAL , DATE ( or DATE ) and DATE to the presiding judge , which were carried by hand from ORG to ORG in the usual way , are now missing from the court file , and not indexed there . The Government are unable to give an explanation therefor .

The contents of these letters were a source of dispute . The applicant asserted that their essentials were as summarised in subsequent letters he addressed to the presiding judge after the trial ( see paragraph CARDINAL below ) . According to the Government , on the other hand , as far as the presiding judge remembers the missing letters contained repetitions of matters already on the file . The presiding judge , so the Government stated , asked the applicant ’s counsel to read the letters and to discuss their contents with his client ; the judge invited counsel to raise the arguments made in the letters at the trial and to introduce motions accordingly .

ORG The applicant wrote in the following terms on DATE to the prison legal officer , PERSON

" PERSON ,

DATE I have an answer to my last note ? ? There is DATE until the trial which is scheduled on DATE . I have not had an answer to any requests sent [ to ] PERSON . Does he ignore me because I write only in LANGUAGE ? Does he also ignore the NORP law in the same way as the PERSON [ investigating judge ] ? I have not yet seen the evidence irrespective of the fact I have an assigned lawyer . Having a lawyer that does nothing does not satisfy justice .

You people must be crazy to think you can carry on a system of justice in such an oppressive manner .

What do I have to do after DATE to get the consideration I deserve ? Must I hurt myself ? Certainly you understand what is going on and you can easily telephone PERSON and inquire .

I will not write you or PERSON again . If I do not have a satisfactory reply in accord with NORP law and ORG , Article CARDINAL ( article CARDINAL ) by DATE , I shall take drastic steps ! I have had enough of this charade . "

ORG As confirmed by the prison records , a letter from the applicant to the public prosecutor was transmitted in the usual way on DATE . However , the prosecutor ’s office has no note of ever receiving the letter . According to the applicant , in it he requested the prosecutor ’s assistance in obtaining defence evidence and was critical of the services of PERSON .

ORG On DATE , DATE before the trial opened , the applicant was visited by CARDINAL officers of ORG in GPE . According to a memorandum subsequently drawn up by CARDINAL of them for the files of the ORG the applicant " complained that his public defender , PERSON , had not discussed his defence with him yet and that he had had no chance to review the court file himself . ( PERSON had told me over the phone DATE that he had spent a total of TIME discussing the defence with PERSON and that he would see him again shortly before the trial ) " .

ORG After the trial the applicant wrote a number of letters to the presiding judge .

In CARDINAL , dated CARDINAL DATE , he said :

" Please note that on DATE , I wrote you requesting access to the records and informing you that PERSON had not yet prepared me nor studied the records of the ORG . I requested you to discharge PERSON if his assignment was the basis to refuse me access to the records . On DATE , I wrote you again to inform you that PERSON had not prepared me for the trial nor provided or translated all the relevant witness statements . You ignored both letters and further did not answer a letter requesting permission to present certain documents in LANGUAGE . I realise surely that it was the duty for PERSON to take up these matters with you but he refused to do anything . "

In a subsequent letter dated DATE he summarised the contents of his letters of CARDINAL , DATE and DATE and complained about not having received any response . This letter , together with a NORP translation prepared by the prison legal officer , was forwarded to the presiding judge on DATE There , the applicant stated the " important elements " of his previous letters as follows :

On DATE , I wrote you a letter to request an inspection of the court records ( PERSON ) and informed you therein that I had little knowledge of any of the alleged evidence , documentary or testimonial . I specifically asked you to discharge PERSON if his representation of me was to be a basis of denying me direct access to the evidence . I stated that it was more important for me to know of the basis of the allegations ( so as to prepare a defence ) than to be represented by a lawyer . I presume that you did not give me access to the evidence requested nor did you discharge PERSON because you did not understand my letter . ( To this date , I do not have knowledge of the majority of the evidence ) .

On DATE I also requested permission to present documentary evidence in LANGUAGE , which request I presume was never answered because it was not understood .

On DATE I wrote to inform you that my appointed lawyer , PERSON , had still not prepared me for the trial on DATE nor given me access [ to ] or knowledge of the prosecution evidence . ( The situation remained the same as reported in my letter of DATE except that at TIME , PERSON came to inform me that no further preparation was necessary since ‘ ORG would happen to me on DATE ) .

ORG The trial before ORG , sitting as a court with lay assessors ( ORG ) , took place on DATE . It was attended by CARDINAL officers of ORG in GPE as observers but apparently by no members of the public . ORG was composed of CARDINAL professional judges and CARDINAL lay assessors .

It is the applicant ’s contention , as corroborated by the GPE consular observers , that the indictment read out at the beginning of the trial was not interpreted into LANGUAGE . However , according to the consular observers , the applicant , when asked , said that he understood the charges and he and his counsel waived interpretation of the indictment .

After the indictment was read out , PERSON was invited to make a statement and was questioned by the presiding judge pursuant to section CARDINAL of the Code of Criminal Procedure ( Strafprozessordnung ) ( see paragraph CARDINAL below ) . The record shows that he stated , among other things , that he was not guilty of any criminal charge .

ORG About halfway through the trial , there was apparently a dispute between the applicant and his defence counsel as to whether requests should be made for the hearing of further witnesses including a lawyer , PERSON , who had been acting as the applicant ’s business agent responsible for settling his debts and whom the applicant suspected of double - representation . PERSON , considering this suspicion as an attack against the reputation of NORP lawyers in general , thereupon asked the court to be discharged from his functions as the applicant ’s defence counsel . However , the court rejected this request . PERSON accordingly continued to represent the applicant until the end of the trial . There is no mention in the record of PERSON having asked for replacement of his legal aid defence counsel .

In his concluding address to the court PERSON asked for a " lenient judgment " ( " mildes PERSON " ) for PERSON .

PERSON and PERSON , CARDINAL prosecution witnesses summonsed to attend at the request of the defence ( see paragraph CARDINAL above ) , did not appear at the trial . With the consent of the defence and the prosecution , the pre - trial deposition of PERSON was read out to the court pursuant to section CARDINAL § CARDINAL of LAW . The applicant had not been provided with an LANGUAGE translation of this deposition . The applicant himself furnished evidence as to the payment of his debts to PERSON . A third witness , PERSON , did not appear because she had not been called by either the prosecution or the defence . Evidence on matters to which she could have spoken was taken from other witnesses who did testify .

The court refused a motion by both the prosecution and the defence to institute investigations into Mr PERSON ’s bank account in GPE , as well as a motion , eventually submitted by defence counsel on PERSON insistence , for the lawyer , PERSON , to be called .

ORG A registered interpreter was present , sitting next to the applicant ’s defence counsel to the left of the judges’ bench , while the applicant was sitting at a distance of CARDINAL to QUANTITY from his defence counsel facing the bench .

The record of the trial states that an interpreter attended but , in accordance with the usual practice , does not specify which of the statements made during the trial were interpreted or the extent to which this was done . It is uncontested that questions put to prosecution witnesses by the court and the public prosecutor were not interpreted , whereas the extent to which witnesses’ answers and other statements were interpreted is a subject of dispute . In accordance with the usual practice the interpretation provided was not simultaneous but consecutive and summarising .

According to the record of the trial , no formal objection was raised by the defence at the time with respect to the extent of the interpretation provided .

The minutes , which are CARDINAL pages long , record the applicant ’s opening declaration as to the various charges , the testimony of QUANTITY persons heard as witnesses , the motion made by the prosecution and the defence to institute investigations into the applicant ’s bank account in GPE , the motion made by the defence to hear CARDINAL more witnesses and to inquire through ORG whether the applicant had previously been convicted in GPE , GPE and GPE . According to the record a number of documents were read out , including the pre - trial deposition of PERSON . Finally , TIME record the final submissions by the prosecution and the defence , the court ’s decision to refuse to take further evidence and the declaration made by the prosecution reserving its right to lodge a plea of nullity in respect of that decision . They conclude by stating that the court gave judgment , together with its reasons , and indicated possible means of appeal . The last sentence reads : " The parties made no comment . "

Mr PERSON was found guilty of aggravated fraud and misappropriation and sentenced to CARDINAL months’ imprisonment , inter alia on charges involving debts owed to PERSON , PERSON and PERSON . After recounting the facts found , the judgment records the defendant ’s declaration that he was not guilty of any criminal offence . According to the judgment , he essentially admitted having incurred the debts for rent and telephone covered by the first CARDINAL counts in the indictment but asserted that he had been willing and able to pay these debts . The court held that this defence was contradicted by the evidence before it . With regard to PERSON the court referred to the fact that the evidence adduced by the applicant himself showed that he had only partly settled his debt to her . He was also ordered to pay ORG CARDINAL to CARDINAL private parties ( ORG ) who had appeared as witnesses for the prosecution and who had claimed compensation ( section CARDINAL § CARDINAL of LAW ) . The applicant and the consular observers are agreed that only the verdict and the sentence , but not the reasons , were interpreted into LANGUAGE . The Government , on the other hand , concur with the finding of ORG ( see paragraph CARDINAL below ) that the judgment , including the reasons , was orally translated in all essential parts .

The written judgment was served upon the defence counsel , PERSON , on DATE . The following day , PERSON visited the applicant in prison , but declined to translate the whole text of the judgment for him . The applicant received a copy thereof ( in NORP ) on DATE but was not provided with a written translation .

ORG On various dates between DATE and DATE , PERSON was served with invoices in respect of interpretation charges incurred during the course of the pre - trial investigation . However , following the intervention of ORG , the NORP authorities eventually confirmed in DATE that he was not liable for interpretation costs .

ORG Subsequent to the trial , on DATE , the applicant wrote a letter to the prison legal officer asking him to convey to the presiding judge his request to have a new defence counsel appointed , as he did " not get along with PERSON " , and also asking for advice what to do in order to obtain a new lawyer . This letter was forwarded to the competent department of ORG on DATE where it was received DATE . The applicant also wrote to PERSON informing him that he had asked for the appointment of another defence counsel . On DATE he wrote in similar terms to the President of ORG .

ORG In addition he sent a number of letters to the presiding judge ( dated DATE and DATE and CARDINAL and CARDINAL DATE ) . In the letter of DATE he said :

" It is now DATE since your judgment and I have not a copy nor has it been translated to me which is required by NORP law and international law as I understand it . It would be proper for me to know what I have been tentatively convicted of so that I may write to the GPE and obtain the evidence ( which PERSON did not do ) for the appeal to GPE .

Therefore , may I please have a copy of the judgment ( ORG ) or in the alternative a translation of the ORG .

For DATE I have been prevented from defending myself through the assignment of an attorney who did absolutely nothing to help me , but actually participated against me in the prosecution . "

The letter of CARDINAL May included the following :

" It is now DATE since I appeared before your ORG and you pronounced judgment ( ORG ) and I still do not know what you said or the legal basis . The translator ( PERSON ) only stated that I was found guilty and sentenced to DATE in prison . I have no knowledge beyond that and clearly I do not expect PERSON to do more than he has in the past ; absolutely nothing . Unfortunately , I am being additionally punished due to my lack of understanding of the NORP language . The appointment of PERSON to defend me has been consistently utilised as the ‘ ORG basis to deny me rights available to any NORP or to me if I understood NORP . DATE is more than adequate time for me to be informed of what you said in ORG or pronounced in the written ‘ GPE .

I have advised you that I wish to appeal the ‘ GPE with a ‘ Nichtigkeitsbeschwerde’ [ plea of nullity ] to ORG of GPE in accord with applicable laws . CARDINAL of the grounds of the ‘ Nichtigkeitsbeschwerde’ is that I was deprived of effective assistance of a defender in that PERSON did absolutely nothing to prepare me for the trial and refused to obtain any evidence on my behalf . On the basis that PERSON has failed to perform his explicit obligation to defend me correctly and that such is a ground of the appeal , it is therefore impossible for PERSON to represent me in the prosecution of the ‘ Nichtigkeitsbeschwerde’ . On this account , I have written to PERSON , President of the Rechtsanwaltskammer [ ORG ] , to request appointment of an LANGUAGE - speaking lawyer .

[ PERSON reproduced in paragraph CARDINAL above . ]

Because I am in the difficult position of not being effectively represented and not understanding the language , I can only attempt to do what I feel is correct legally and ethically . I am hereby informing you of the grounds for the appeal , which grounds are substantial , and which grounds should be properly presented by an experienced NORP Attorney . ( To date , I have not been visited by an Attorney for the purpose of preparing a ‘ Nichtigkeitsbeschwerde’ . ) If I am not presenting the grounds correctly , it is only due to lack of legal advice . "

The letter of CARDINAL May ( passages of which are set out at paragraph CARDINAL above ) was accompanied by a translation into NORP . In it the applicant reiterated that " on DATE May I wrote to you to inform you of some of the grounds of the PERSON as well as the grounds for appointment of a new lawyer " .

As before , the applicant received no response from the presiding judge .

ORG On DATE the applicant was once more visited in prison by PERSON . At the applicant ’s request this meeting was attended by the prison legal officer . The applicant repeated his request to have another defence counsel appointed .

By letter of CARDINAL DATE PERSON asked ORG to be discharged of his duties as defence counsel . On DATE ORG appointed PERSON as new defence counsel for the applicant . PERSON was notified thereof on DATE

ORG On DATE a partner of PERSON came to see PERSON in his office and gave him a draft appeal ( PERSON ) and plea of nullity ( PERSON ) prepared by PERSON ( consisting of CARDINAL pages ) and also some copies from the court file . On DATE Dr PERSON visited the applicant in prison . The statement setting out the plea of nullity and the appeal ( against sentence and the compensation order ) was then drawn up and filed on DATE , DATE on which the time - limit for filing expired . PERSON also prepared a translation of the judgment for the applicant .

ORG The plea of nullity was essentially based on the following grounds :

( a ) ( under section CARDINAL ORG CARDINAL.CARDINALa of LAW - see paragraph CARDINAL below ) that the applicant was not adequately represented by counsel during the proceedings and in particular during the trial ;

( b ) ( under LAW § CARDINAL.CARDINAL , taken together with sections CARDINAL , CARDINAL and CARDINAL , of the Code - ibid . ) that the interpretation during the trial was insufficient , and in particular that neither the indictment nor the written depositions nor the oral testimony of certain witnesses nor the questions put to witnesses by the presiding judge and the public prosecutor were interpreted into LANGUAGE ;

( c ) ( under LAW § CARDINAL.CARDINAL , taken together with LAW . ) that save for its operative part the judgment was neither interpreted on the spot nor translated thereafter ;

( d ) ( under section CARDINAL § CARDINAL of the Code - ibid . ) that the trial court had not granted either the prosecution or the defence motions to have investigations carried out with the defendant ’s bankers or the defence motions for the hearing of evidence from CARDINAL witnesses ;

( e ) ( under section CARDINAL § CARDINAL - ibid . ) that the judgment was not sufficiently reasoned ;

( f ) ( under section CARDINAL § CARDINAL.CARDINALa and b - ibid . ) that the trial court had incorrectly interpreted certain facts which established lack of fraudulent intent .

ORG With regard to the factual allegations concerning the scope of interpretation during the trial , ORG ( Oberster Gerichtshof ) conducted an inquiry in accordance with section PERSON of LAW ( see paragraph CARDINAL below ) . The presiding judge of ORG was questioned by the reporting judge of ORG over the telephone . A note on this conversation , which was placed in ORG file on DATE , reads as follows ( translation into LANGUAGE provided by the Government ) :

" The presiding judge , ORG Justice PERSON , replied as follows to an inquiry by telephone :

Contrary to the allegations made in the plea of nullity , all essential points of the indictment , of the ORG depositions , of the contents of the documents read out in court as well as of the judgment , including its reasoning , were translated by the interpreter who had been summoned and by counsel for the defence , Barrister PERSON ( who is a qualified NORP interpreter ) , at the trial which was attended by CARDINAL members of ORG . The defendant was also permitted to comment on the charges and on each piece of evidence without any time - limit , as well as to put questions to the witnesses . "

Neither the applicant nor his counsel was given notice of this inquiry or advised of its results .

ORG On DATE , after having obtained the view of the Procurator General ( ORG ) , ORG , sitting in chambers ( see paragraph CARDINAL below ) , rejected the plea of nullity , essentially on the following grounds .

As to the complaint that the applicant had not been adequately represented by counsel during the trial , ORG found that ORG was only under a duty to appoint a defence counsel and to invite him to attend the trial as well as any other proceedings in which the defendant was allowed to participate . It was not , however , for ORG to supervise the activities of the defence counsel , who was not subject to the control of the ORG but to the disciplinary authority of the appropriate bar association . Accordingly , no ground for nullity could be derived from any insufficient performance by the defence counsel of his duties .

With respect to the interpretation during the trial , ORG observed that ORG had not only appointed an interpreter to assist during the trial but that it had also appointed , at the applicant ’s request , a defence counsel who was at the same time an NORP interpreter and with whom the applicant could communicate in his mother tongue . As a matter of law , neither an incomplete translation nor a failure to appoint an interpreter as such constituted a ground for nullity . They could at best be a source of challenge , under section CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) , if a corresponding motion had been denied at the trial . Besides ( i m übrigen ) , the inquiry carried out by ORG pursuant to section PERSON of the Code of Criminal Procedure had shown that , contrary to the allegations in the applicant ’s plea of nullity , all essential parts of the indictment , of the testimony of witnesses , of the documents read out during the trial and also of the judgment , including its reasons , had been interpreted by the registered interpreter . Furthermore , the applicant had had the opportunity to comment on the charges and the evidence without any time restriction and also to put questions to witnesses .

ORG The date of the public hearing for the appeal against sentence and the compensation order was notified to Mr PERSON pursuant to section CARDINAL § CARDINAL of LAW and his counsel , PERSON , was summoned to attend .

On DATE Mr PERSON lodged an application for his personal attendance before ORG , arguing , inter alia , that the determination of the sentence necessitated an assessment of his personality and that this required his presence . Moreover , the file before ORG included articles from the DATE newspaper " PERSON " which were prejudicial to him and might adversely influence ORG . The articles , which had been published on CARDINAL , DATE and DATE and which described him as an NORP espionage agent dangerous to GPE , had also been in the file of the trial court . Lastly , he submitted , as his appeal concerned also the civil - law aspects of the judgment , it would be unfair if the private parties to whom he had to pay compensation could appear before ORG but not himself .

This application was rejected by decision of ORG on DATE on the ground that no concrete indications suggesting a need for the accused ’s personal attendance at the hearing on the appeal lodged solely for his benefit were apparent from the court files or from his application . If he harboured the belief that his personal presence would enable him to argue that the criminal proceedings had come about essentially as a result of a chain of unfortunate circumstances and misunderstandings , above all of a linguistic nature , he was unaware of the rule that the question of guilt can no longer be canvassed in the appeal proceedings . Moreover , all further circumstances set forth in his application could be put forward by his lawyer at the hearing . ORG ruling was served on PERSON counsel .

ORG The grounds for appeal against sentence were essentially that the trial court had failed to take into account a number of mitigating considerations , such as Mr PERSON ’s lack of criminal record , his maintenance obligations to his wife and child , his error in not realising the criminal character of his conduct and the fact that the monetary qualifying limit for aggravated fraud ( ATS MONEY ) had been exceeded by only a small amount .

The appeal was dismissed by ORG on DATE after a hearing at which the applicant was represented by defence counsel . ORG considered that the sentence imposed by ORG was adequate and that the relative weight of mitigating and aggravating circumstances had been correctly assessed . The adjudication of compensation to CARDINAL private parties had been in accordance with the law and therefore there was no reason to refer the decision on this issue to the civil courts as requested by the applicant . ORG judgment also lists those present at the appeal hearing and there is no indication that the private parties whose compensation claims ORG had upheld were present or represented at that hearing .

ORG The applicant was released from prison on DATE and subsequently detained with a view to his deportation to GPE . He was eventually deported in DATE .

ORG Section CARDINAL of LAW provides as follows :

" The investigating judge shall have translated by a registered interpreter any documents drawn up in a language other than the one used in court ( nicht gerichtsüblich ) if they are relevant to the investigation and have them put in the file together with the translation . "

Under the terms of section CARDINAL of the Code :

" Where a witness does not have knowledge of the language used in court ( Gerichtssprache ) , an interpreter shall be called in unless both the investigating judge and the court clerk have a command of the foreign language . In the official record of the hearing or an annex thereto the depositions of the witness shall be recorded in that language only where it is necessary to quote the actual expressions used by the person examined ( section LAW ) . "

According to section CARDINAL § CARDINAL , such a necessity exists if the expressions used are important for judging the matter or if it is to be expected that the official record will be read out at the trial .

By virtue of section CARDINAL § CARDINAL of the Code , section CARDINAL also governs , mutatis mutandis , interrogations of a person charged with an offence ( Beschuldigter ) if that person does not have knowledge of the language used in court .

ORG It follows from the context of the above provisions that they relate to the pre - trial investigations conducted by the investigating judge ( PERSON ) . However , by virtue of section CARDINAL § CARDINAL of the Code , the rules to be observed by the investigating judge shall also be applied by the presiding judge when examining witnesses or experts at the trial . There is no express provision concerning the rules to be followed for the examination of the accused at the trial if he does not have knowledge of the language used in court , but it appears that in practice the rules governing the examination of witnesses are applied by analogy .

ORG The qualifications of registered interpreters ( allgemein beeidete gerichtliche PERSON ) are specified in ORG and LAW DATE ( Bundesgesetz über den allgemein beeideten gerichtlichen PERSON , PERSON ORG . CARDINAL ) . According to section LAW , the provisions regarding experts and requiring , inter alia , special knowledge ( PERSON ) and trustworthiness ( PERSON ) ( cf . section QUANTITY § CARDINAL ( a ) and ( e ) ) are also applicable to interpreters .

ORG Section CARDINAL § CARDINAL of the Code of Criminal Procedure provides that in all criminal cases the accused has the right to have a defence lawyer ( Verteidiger ) whom he may choose among the persons included in a list kept by ORG .

ORG Under certain conditions an official defence lawyer ( beigegebener PERSON ) must be assigned to the accused . He may either be a legal aid lawyer to be paid by the ORG or an ex officio lawyer to be appointed in cases of necessary representation at the expense of the accused . The procedure to be followed is set out in CARDINAL of the LAW , which , in so far as relevant , reads :

" ( CARDINAL ) If the person charged with a criminal offence ( the accused ) is unable ... to bear the costs of his defence , the court shall at [ his ] request decide that he will be given a defence lawyer whose costs [ he ] will not have to bear if and in so far as this is necessary in the interests of justice , in particular the interests of an appropriate defence . ...

( CARDINAL ) If , for a trial before an assize court or a court with lay assessors , the accused or his legal representative has not chosen a defence lawyer , and if no defence lawyer has been assigned under paragraph CARDINAL above , the court shall of its own motion appoint a defence lawyer whose fees will have to be borne by the accused unless the conditions for appointing a defence lawyer under paragraph CARDINAL above are satisfied . ... "

Section CARDINAL § CARDINAL further provides :

" If the court has decided to assign a defence lawyer , it shall notify ORG competent for the area in which the court is situated so that this ORG may appoint a practising lawyer ( PERSON ) as defence lawyer . "

ORG The replacement of a defence lawyer in the course of the proceedings is governed by LAW , which reads :

" The person charged with a criminal offence may at any time transfer the mandate of a freely chosen defence lawyer to another defence lawyer . Likewise , the mandate of an officially assigned defence lawyer shall be terminated as soon as the person charged designates another defence lawyer . However , in such cases the change in the person of the defence lawyer must not lead to any delay in the proceedings . "

LAW ( ORG , PERSON . Law Gazette No . CARDINAL/CARDINAL as amended ) now provides that , in certain cases including conflict of interest or bias , the officially assigned defence lawyer shall be replaced by another defence lawyer ( section CARDINAL § CARDINAL in the version of PERSON No . DATE ) . This provision did not exist at the relevant time . However , in practice an officially assigned defence lawyer could be replaced by ORG if this seemed appropriate .

ORG Section CARDINAL § CARDINAL of LAW requires a practising lawyer to perform his mandate in accordance with the law and to defend the rights of the party he is representing attentively , in good faith and conscientiously ( " PERSON , PERSON " ) . Under section CARDINAL § CARDINAL , he is obliged to carry out his mandate as long as it has not been terminated and he is responsible for failure to do so . However , according to established case - law ( ORG , PERSON , DATE , no . CARDINAL ) he is not subject to control by the court as to whether he has performed his tasks correctly and reasonably ( " richtig und zweckmässig " ) . On the other hand the Government pointed out at the public hearing on DATE that the ORG has the status of constitutional law in GPE , with the consequence that the courts are under a duty to secure compliance with LAW ( c ) ( article DATE ) which guarantees a defendant ’s right to legal assistance .

There is no provision requiring the appointment of a defence lawyer with a knowledge of the language of the accused if the accused does not understand or speak the language used in court , but in practice , if requested by the defendant and if possible , a lawyer with sufficient command of the defendant ’s language will be nominated .

Inspection of the court files by the defendant or by his defence counsel is governed by LAW , which provides :

" The investigating judge shall permit the defence lawyer on request to inspect the court files , except the records of deliberations , on the premises of the court and to make copies thereof ; alternatively the investigating judge may also deliver photocopies to the lawyer . Where the defendant is not legally represented , he himself is entitled to these rights of defence counsel , and a defendant who is in detention may be permitted to inspect the files on the premises of the detention centre or prison . ... "

ORG Section CARDINAL of the Code of Criminal Procedure enables the defendant to make an initial statement . Immediately after the opening of the trial the defendant is questioned by the presiding judge as to the contents of the indictment . If the defendant pleads not guilty to the indictment , the presiding judge must explain to him that he is entitled to counter the charges with a coherent statement of the facts and to submit his observations with regard to each individual item of evidence . The defendant is not obliged to answer any questions put by the judge .

ORG Section CARDINAL of the Code of Criminal Procedure deals with the keeping of records of the trial :

" ( CARDINAL ) On pain of nullity a record shall be kept of the trial which shall be signed by the president and by the clerk of the court . It should contain the names of the members of the court present , of the parties and of their representatives , document all essential formalities of the proceedings , in particular set out what witnesses and experts were heard and which parts of the files were read out , whether the witnesses and experts were sworn and for what reason they were sworn , and finally all motions submitted by the parties and the decisions taken by the president or the court thereon . The parties are free to demand the setting down of specific points in the record in order to preserve their rights .

( CARDINAL ) Where the actual words used are of importance , the president shall at the request of a party at once order individual passages to be read out .

( CARDINAL ) The answers of the defendant and the depositions of the witnesses or experts shall only be mentioned if they contain deviations from , alterations of or additions to the statements set down in the files or if the witnesses or experts are heard for the first time at the public session .

( CARDINAL ) If the president or court thinks fit , they can order all depositions and pleadings to be taken down in shorthand ; this shall always be ordered where a party requests it in good time and deposits the costs in advance . The shorthand notes shall , however , be transcribed into ordinary script within TIME , shall be submitted for verification by the president or a judge delegated by him , and shall be attached to the record .

( CARDINAL ) The parties are free to inspect the finished record and its enclosures , and to make copies thereof . "

ORG A plea of nullity before ORG can only be based on the specific grounds enumerated in section CARDINAL § CARDINAL of LAW . Thus a plea of nullity may be lodged

" CARDINAL . if the defendant was not represented throughout the trial hearing by counsel although such representation was obligatory ;

where during the trial hearing there has been a breach of , or a failure to comply with , a provision in respect of which it is expressly provided that such breach or failure shall entail nullity ;

if no decision has been taken at the trial on a motion of the person lodging the plea of nullity or if an interim decision rejecting a motion or objection of the person lodging the plea of nullity has been taken in a manner which disregarded or incorrectly applied legal provisions or procedural principles whose observance is necessary for securing a procedure in conformity with essential requirements of the prosecution and of the defence ;

if the judgment of the trial court ... gives no or manifestly insufficient reasons for its decision ;

if the judgment was rendered in breach or misapplication of a statute in relation to the issue

( a ) whether the act with which the defendant is charged amounts to a criminal offence within the jurisdiction of the courts ;

( b ) whether there are circumstances which exclude punishment or prosecution in respect of the act ... ;

( c ) ... "

Examples of the kind of ground referred to in paragraph CARDINAL are failure to recite the indictment at the commencement of the trial ( as required by section CARDINAL of the Code of Criminal Procedure ) , failure to bring to the knowledge of the defendant the testimony of witnesses heard in his absence ( as required by CARDINAL of the Code ) , and failure to state in the judgment the grounds supporting any finding of guilt ( as required by CARDINAL of the Code ) . However the failure to make such recitals in a language which a non - NORP speaking defendant can understand does not constitute a fatal error requiring a verdict of guilty to be nullified ( see the judgment of ORG in the present case - paragraph CARDINAL above ) .

ORG According to section CARDINALc of LAW , ORG , after having obtained the view of the Procurator General , shall deliberate in private if the Procurator General or the reporting judge has proposed the application of , inter alia , section ORG or f of the Code . Section CARDINALd provides for , inter alia , rejection of a plea of nullity by a decision in private if the ORG unanimously considers that pleas based on sub - paragraphs CARDINAL to CARDINAL of section CARDINAL § CARDINAL are manifestly ill - founded .

By virtue of section ORG , " when deliberating in private , may ... order that inquiries be made as to facts relating to alleged procedural defects ( section CARDINAL § DATE ) " .

Where ORG does not render its decision in private , an unrepresented defendant in custody has to be informed of the date set down for the hearing and advised that he may only appear through a lawyer ( section CARDINAL § CARDINAL ) . In the case of a represented defendant only the defence lawyer is informed of the date ( section QUANTITY ) . Under the terms of section CARDINAL § CARDINAL the defendant or his lawyer is always entitled to the last word ( LOC ) at the hearing .

ORG In principle ORG proceedings in respect of an appeal against sentence are public ( see section CARDINAL § § CARDINAL and CARDINAL of the Code of Criminal Procedure ) . The question of guilt or innocence may not be canvassed in such appeal proceedings . When the appeal has been lodged solely by the defendant , ORG has no power to impose a severer sentence than that passed at first instance ( section CARDINAL § CARDINAL of the Code ) .

ORG The defendant ’s presence at the public hearing of his appeal is governed by LAW , second sentence , which at the relevant time provided :

" As regards the fixing of a day for the public hearing and the procedure , sections CARDINAL and CARDINAL are applicable mutatis mutandis , provided that the defendant not in custody shall always be summoned and that the defendant in custody may be caused to be brought before the court . "

Section CARDINAL § CARDINAL was amended in DATE and DATE . The second sentence now provides that the defendant in custody shall be brought before the court if he so requests in his appeal or in his counter - statement or if his presence appears to be necessary in the interests of the proper administration of justice or for other reasons .

Section CARDINAL § CARDINAL , last sentence , further specifies that " if the appeal is directed against the adjudication of civil claims , the private party concerned shall also be summoned " ( translation from NORP ) .


The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms W. Viscardini , of FAC .

The applicant was married . In DATE his wife , who was pregnant , decided to have an abortion despite his opposition . Her pregnancy was terminated on DATE .

On DATE the applicant brought an action against his wife in the San Donà di Piave magistrate ’s court , seeking compensation for the infringement of his rights as a potential father and of the unborn child ’s right to life . The applicant further challenged the constitutionality of PERSON no . CARDINAL of DATE , arguing that it contravened the principle of equality between spouses as enshrined in DATE and CARDINAL of LAW in that it left it entirely to the mother to decide whether to have an abortion and took no account of the father ’s wishes .

The applicant ’s wife maintained that she had acted in accordance with LAW no . CARDINAL of DATE , by which she alone had the right to decide whether to undergo an abortion .

In an order ( no . CARDINAL ) of CARDINAL DATE ORG declared the constitutionality issue manifestly ill - founded on the ground that the PERSON complained of was based on a policy decision to grant the mother full responsibility for an abortion , and that that decision was not illogical , especially as the effects of pregnancy , both physical and mental , were felt primarily by the mother .

Having regard to ORG decision , the magistrate ’s court dismissed the applicant ’s action in a judgment of CARDINAL DATE .

The applicant appealed against that judgment to ORG . He raised a further constitutionality issue , submitting that LAW no . CARDINAL of DATE infringed ORG , CARDINAL of ORG , DATE and CARDINAL of LAW .

In a judgment of DATE ORG dismissed the appeal on the ground that the right to compensation under LAW presupposed that the applicant ’s wife ’s conduct had been unlawful , whereas she had acted in accordance with LAW no . CARDINAL of DATE . ORG further held that the constitutionality issue raised by the applicant was essentially the same as that raised at first instance and accordingly declared it manifestly ill - founded .

The applicant appealed on points of law to ORG , arguing , in particular , that LAW no . CARDINAL of DATE infringed ORG , CARDINAL of the ORG , which protected the right to life and the right to found a family .

In a judgment of DATE , the text of which was deposited at the registry on CARDINAL DATE , ORG dismissed the applicant ’s appeal .

It had regard to ORG decision of CARDINAL DATE and further held that declaring the abortion legislation unconstitutional would not have had any bearing on the applicant ’s claim for compensation . The claim was in any event bound to fail in the absence of any unlawful conduct on the part of the applicant ’s wife , who had made use of a right to which she was entitled .

Law no . CARDINAL of DATE allows doctors to terminate a pregnancy in specified circumstances .

By DATE of the PERSON , a woman may decide to have her pregnancy terminated before DATE where continuation of the pregnancy , childbirth or motherhood might endanger her physical or mental health , in view of her state of health , her economic , social or family circumstances , the circumstances in which conception occurred or the likelihood of abnormalities or of malformations of the foetus .

The woman may apply to a health centre ( struttura socio - sanitaria ) , a clinic ( consultorio ) established under LAW no . CARDINAL of DATE or her doctor .

By sections CARDINAL and CARDINAL of the LAW , clinics and health centres must carry out the necessary medical examinations . Where an abortion is requested because of the impact of economic , social or family circumstances on the pregnant woman ’s health , they must also

( a ) NORP examine possible solutions to the problems , together with the woman and , with her consent , the potential father ;

( b ) help the woman to overcome the problems that have led her to request an abortion ; and

( c ) take any appropriate measures to help the woman by providing her with all the necessary assistance both during the pregnancy and after the birth .

Where the woman applies to her doctor , the doctor carries out the necessary medical examinations and , together with the woman and the potential father , discusses the reasons for her decision to request an abortion , having regard also to the results of the examinations . The doctor informs the woman of her rights , the welfare facilities available to her , and the clinics and health centres at her disposal .

In cases of emergency , a doctor from the clinic or health centre or the woman ’s own doctor immediately issues her with a certificate attesting that termination of the pregnancy is urgently required . On the basis of the certificate , the woman may report to CARDINAL of the establishments authorised to perform abortions .

If the results of the medical examination indicate that there is no emergency , the doctor draws up a certificate , which the woman must also sign , attesting that she is pregnant and that her request for an abortion has been made in accordance with LAW . At the same time the doctor gives DATE to think the matter over . Once that period has elapsed , the woman may request the termination of her pregnancy at an authorised establishment , on the basis of the medical certificate .

Beyond DATE , an abortion may be carried out

( a ) where pregnancy or childbirth entails a serious threat to the woman ’s life ; or

( b ) where conditions entailing a serious threat to the woman ’s physical or mental health have been diagnosed , including serious abnormalities or malformations of the foetus .

The abortion process is covered by LAW ( Law no . CARDINAL ) .

There is no provision in law allowing the potential father to prevent an abortion from taking place .


Violation of Art. 6-1 (composition of state security court);Not necessary to examine other complaints under Art. 6

The applicants were born in DATE and DATE respectively . They were serving their prison sentences at Bergama prison at the time of the application .

The applicants were arrested and taken into police custody by police officers at the LAW - terror branch of ORG on DATE respectively .

On DATE ORG ordered the applicants’ remand in custody .

On DATE the public prosecutor at ORG filed a bill of indictment with that court and accused the applicants and CARDINAL other suspects of membership in an illegal organisation , namely the PERSON ( ORG İhtilalci Komünistler Birliği ) . He requested that the applicants be convicted and sentenced under LAW § CARDINAL of LAW and LAW no . ORG .

On DATE ORG convicted the applicants as charged and sentenced them to DATE and QUANTITY months’ imprisonment .

On DATE ORG held a hearing and upheld the judgment of the first - instance court .

The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) , and GPE v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .

By PERSON no . CARDINAL of DATE , published in ORG on DATE , ORG have been abolished .


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

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

On DATE the ORG convicted the applicant of uttering threats and battering his wife and sentenced him to four years’ imprisonment , with execution of the sentence stayed for a probationary period of DATE . On DATE ORG dismissed his appeal .

The applicant lodged with ORG a cassation appeal within the CARDINAL days’ time - limit provided for by law , alleging various procedural shortcomings which , in his argument , negatively affected both his defence rights and the outcome of the case . ORG , having examined the appeal , found that it complied with the formal requirements specified by LAW and subsequently forwarded it to ORG .

On DATE ORG , at a court session held in camera , dismissed his cassation appeal as manifestly ill - founded .

Under LAW of DATE a party to criminal proceedings can lodge a cassation appeal with ORG against a final judgment of the appellate court , which has terminated the proceedings . The cassation appeal has to be drafted and signed by a lawyer .

A cassation appeal can be lodged only on the grounds referred to in LAW . These grounds include certain procedural shortcomings , which justify quashing of a first - instance decision , regardless of whether they are invoked by the party lodging any remedy against such decision ( for example , wrong composition of the court , lack of legal assistance in cases where such assistance was compulsory , violation of the rules governing jurisdiction of criminal courts , certain breaches of defence rights ) . A cassation appeal can also be lodged on the ground of another flagrant breach of law , if such a breach negatively affected the judicial decision under appeal .

Article CARDINAL of the LAW provides that the court which gave the decision appealed against is competent to decide whether the formal requirements for a cassation appeal are satisfied , and to refuse to accept the appeal , if this is not the case . If the appeal is admissible , it is forwarded to ORG .

Pursuant to LAW , as amended on DATE to take effect as of DATE , the ORG shall consider the cassation appeal against a judgment at a hearing . However , it is open to the ORG to dismiss such appeal at a session held in camera , if it considers that it is manifestly ill - founded . No written grounds shall be prepared for such a decision .


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

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

The applicant was born in DATE and lives in GPE . She is also a paraplegic .

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

On DATE the applicant lodged a property - related claim with ORG ( PERSON ) in GPE , seeking declaratory relief . In so doing , she failed to specify the exact value of the claim in question ( vrijednost spora ) . However , on DATE she paid court fees of MONEY ( ORG ) , which corresponded to the value of claims ranging between ORG CARDINAL and EUR CARDINAL .

On DATE , at the end of the main hearing ( glavna rasprava ) and after additional evidence had been examined , the applicant specified that the value of the claim was EUR CARDINAL .

On DATE ORG ruled in favour of the applicant . The judgment stated , inter alia , that the value of the claim was LAW and noted that “ [ an expert witness had assessed that ] on CARDINAL DATE ... the total value of ... the property ... [ at issue had been ] ... LAW ” .

On DATE ORG ( PERSON ) in GPE quashed that judgment and ordered a re - trial .

On DATE the applicant , after the main hearing had ended and on the court 's request , specified that the value of the claim was EUR CARDINAL,CARDINAL . On DATE the respondent 's representative submitted his claim for costs based on the value of the claim being ORG CARDINAL,CARDINAL .

On DATE ORG ruled against the applicant . The judgment specified , inter alia , that the value of the claim was LAW and once again referred to the said expert 's findings .

On DATE ORG upheld that judgment on appeal .

On DATE ORG ( PERSON ) in GPE rejected the applicant 's appeal on points of law ( revizija ) as inadmissible , stating that the court fees ( sudska taksa ) paid by the applicant had indirectly set the value of the claim significantly below the statutory threshold ( see LAW at paragraph CARDINAL below ) .

Sections CARDINAL provide general rules as regards the means of establishing the value of a civil claim .

Section CARDINAL § CARDINAL provides that in cases not relating to pecuniary requests the relevant value of the claim shall be the CARDINAL indicated by the plaintiff in his / her claim .

Section QUANTITY further provides that when the value specified by the plaintiff appears to be obviously incorrect , the competent first - instance court shall “ at the latest at the preliminary hearing ( pripremno ročište ) or , if there was no preliminary hearing , at the main hearing before the examination of merits , speedily and in an adequate manner , check the accuracy ” of the specified value .

LAW provides that when the right to an appeal on points of law depends on the value of the claim “ the plaintiff has a duty to indicate [ the value of the claim ] in the statement of claim ” .

Section CARDINAL § CARDINAL provides that an appeal on points of law shall not be admissible in non - pecuniary matters where the value of the claim does not exceed approximately EUR CARDINAL .

Under sections ORG and CARDINAL - CARDINAL , inter alia , ORG may , should it accept an appeal on points of law lodged by one of the parties concerned , overturn the impugned judgment or quash it and order a re - trial before the lower courts .

Sections CARDINAL and CARDINAL of this LAW stipulate that legal guardianship shall be provided only to persons not capable of taking care of their “ person , rights and interests ” .


The applicants are NORP passport - holders of NORP origin ( see complete list in the FAC ) . They submit that they have been deprived of their NORP citizenship and that their status in GPE is that of stateless “ foreigners ” . When introducing their application , they were held at FAC of ORG , located on the LOC of FAC . Before the ORG they are represented by Mr. PERSON , a lawyer practising in GPE and acting on behalf ORG .

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

A.

On DATE the applicants , coming from GPE , GPE , arrived at FAC . At the passport control , the NORP immigration authority established that their visas had been reported stolen . Subsequently they were informed that they would be returned to GPE . Assisted by an interpreter , they signed the decision of ORG to that effect and waived their right to an administrative appeal . On DATE , a lawyer acting on behalf of the Mahatma Gandhi International Human Rights Organisation , contacted them . On DATE the applicants made a request for asylum . On DATE they were committed to FAC .

As to the circumstances at FAC , the applicants allege that they were all - men , women and children together - lodged in CARDINAL rooms of a surface of QUANTITY , packed with bunk beds . They were under constant control by armed guards and not allowed to leave the LOC of FAC . The Government , for their part , allege that , on their committal to FAC , it was the applicants’ express desire to be allowed to stay together , as a result of which a room suitable to accommodate CARDINAL people was allocated to them . Admitting that the ORG stay at ORG was subject to severe security scrutiny , the Government nevertheless submit that on the occasion when one of the applicant children had had to be taken to hospital , the parents were escorted to the hospital to visit their child DATE , on DATE .

Meanwhile , on DATE ORG , pending the asylum proceedings , suspended the enforcement of the applicants’ deportation to GPE . On DATE the NORP authorities heard the applicants , represented by Dr. PERSON , with a view to clarifying their situation , if returned to GPE .

After having interviewed the applicants , on DATE the NORP ORG of the ORG High Commissioner for Refugees dismissed the ORG request for asylum on the ground that their allegations lacked credibility . On DATE ORG and ORG approved the applicants’ deportation to GPE . On DATE ORG ordered the applicants’ deportation . Upon the announcement of the deportation order , the applicants insisted that they would not leave GPE for any NORP country . As a consequence , their deportation did not take place .

On DATE Dr. PERSON brought an action on behalf of the applicants before ORG challenging the ORG ’s deportation order as well as their committal to FAC .

On DATE ORG discontinued the proceedings . ORG recalled that the applicants had waived their right to an administrative appeal against the return order of DATE . ORG pointed out that , since they had not exhausted the relevant administrative remedy in this respect , the applicants had no locus standi in judicial proceedings with a view to reviewing the impugned administrative proceedings .

Meanwhile the applicants were committed to ORG in GPE . On DATE ORG was informed that the applicants had , without authorisation , left the camp by undoing the fence . In his submissions of DATE , the ORG representative submitted that the applicants had eventually left GPE for GPE .

B. Relevant domestic law

The DATE LAW no . DATE )

Section CARDINAL § CARDINAL provides that foreigners may cross the NORP state frontier and stay on the territory of GPE only if they have valid passports verifying their citizenship and particulars of identification , and have valid visas issued by the NORP authorities .

According to S. CARDINAL § § CARDINAL , CARDINAL and DATE , all conditions of entry and stay shall be inspected by the border guards at the time of entry to the country by the foreigner , prior to crossing the state frontier , while the availability of financial means shall be inspected by the customs authority . Foreigners who do not satisfy the conditions prescribed for entering the country , shall - subject to the provisions of S. CARDINAL § CARDINAL - be returned to the territory of the country they arrived from . Upon notification , an appeal may be lodged against the order of return .

Section CARDINAL § CARDINAL provides that foreigners shall not be returned or expelled to such countries , or to the frontier of such areas , where they would be exposed to the danger of persecution for reasons connected with their race , religion , national , social belonging or political views ; furthermore , to the territory of such states , or to the frontier of such areas , where it is to be greatly feared that they would be exposed to torture , inhuman or degrading treatment . These reasons shall be established by the refugee authority .

Section CARDINAL provides the possibility of ordering an alien ’s residence at a designated place . According to paragraphs CARDINAL and CARDINAL , the police headquarters and the directorate or branch of ORG may order the residence of the foreigner at a designated place , restricting his personal liberty , if : ( a ) he is not able to certify his identity , until the establishment thereof ; or ( b ) he is not able to certify the lawfulness of his stay in GPE , until the verification thereof or until an official permit to stay is issued ; or ( c ) this is necessary for the purposes of guaranteeing the execution of an expulsion , until the establishment of the conditions of expulsion ; or ( d ) his return was ordered ( see PERSON above ) ; or ( e ) his return or expulsion should take place , but he may not be returned or expelled in accordance with the prohibition under PERSON § CARDINAL .

The compulsory place of residence may also be designated at a communal accommodation , if the foreigner is not able to support himself , and no appropriate accommodation , financial means , income and inviting party or relatives obliged to support him are at his disposal .

Paragraph CARDINAL provides that , although no administrative appeal may be lodged against the order to reside at a designated place , the foreigner may request the court review of the decision . The procedure of the court shall be governed by the provisions applicable to the court review of the lawfulness of ‘ custody for the purposes of supervision of ORG . These provisions are as follows :

Section CARDINAL § § CARDINAL and CARDINAL provide that foreigners may request - during the period of custody - a review of the lawfulness of the decision from the local court competent at the place of custody . The submission of such a request has no suspensive effect in respect of the enforcement of the custody order . If the foreigner requests the court review of the lawfulness of the ‘ custody for purposes of supervision of GPE , he shall be brought before the court in order to be heard . According to S. CARDINAL § CARDINAL , if the court finds that the foreigner ’s taking into , or holding in , custody violates the law , it shall take immediate measures for his release . Section CARDINAL § § CARDINAL , CARDINAL and CARDINAL provide that the authority ordering the taking into custody as well as the foreigner may appeal against the decision of the court . The appeal may be submitted orally in the course of the hearing or in writing to the local court within DATE following the announcement of the decision . Appeals submitted against the decision of the local court shall be decided by the regional court within DATE . Section CARDINAL requires that the court shall act promptly in matters of judicial review of decisions of the immigration authorities .

Act no . CARDINAL of DATE on LAW

Section CARDINAL provides that an [ administrative ] appeal lies against any first instance [ administrative ] decision taken on the merits of a case . Persons entitled to lodge an appeal may waive their right to appeal within the appeal deadline . According to PERSON , if an administrative decision is not in compliance with the law , the superior administrative body may amend or quash it .

Section CARDINAL provides that an administrative decision taken on the merits of a case may be challenged in court within DATE from its delivery . Such judicial review may , however , take place only if the administrative remedies - if any - available in the case have already been exhausted .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE ORG ( GPE Republic allowed the applicant ’s claim against ORG for provision of housing . ORG ordered that the administration :

“ ... provide PERSON and his family members with living premises that meet sanitary and technical requirements ” .

The judgment of DATE was amended on appeal by ORG ( GPE ) Republic on DATE . ORG ordered that the administration :

“ ... provide PERSON and his family members with well - equipped living premises in a stone building constructed after DATE ” .

On DATE the ORG of ORG of the Sakha ( GPE ) Republic , by way of supervisory - review proceedings and upon the applicant ’s request , amended the judgment of DATE and ordered that the administration :

“ ... provide PERSON with a CARDINAL - room well - equipped flat in a new stone block of flats ” .

The judgment entered into force on DATE .

In DATE the bailiffs’ service opened enforcement proceedings and in DATE charged CARDINAL flats belonging to ORG .

On DATE ORG , upon the complaint from ORG , quashed the bailiffs’ charging order .

After the decision of CARDINAL DATE had been quashed on appeal and the case had been remitted for a fresh examination , ORG reconsidered the matter and discontinued the proceedings .

NORP In DATE the bailiffs charged CARDINAL flats of ORG and deposited them with the administration ’s creditors . The applicant was not among them . The bailiffs also fined ORG for its failure to enforce the judgment in the applicant ’s favour . Those decisions were quashed by ORG , upon the administration ’s appeal .

On an unspecified date liquidation proceedings were instituted against ORG and in DATE the bailiffs sent the writ of execution to the liquidation commission .

At the time the application was lodged with the ORG , the judgment of DATE , as amended on DATE , remained unenforced because ORG possessed no available housing or financial resources to purchase a flat .

On DATE ORG of the Sakha ( GPE Republic offered the applicant to purchase a CARDINAL - room flat at the ORG ’s expense . DATE the applicant bought a CARDINAL - room flat and submitted a copy of the contract to ORG ( GPE .

On DATE ORG of the Sakha ( GPE Republic paid the purchase price to the construction company and NORP on DATE the company provided the applicant with keys to the flat and he and his family members moved into it .


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

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

On DATE the applicant was arrested by police officers from the anti - terror branch of ORG . On DATE he was detained on remand .

On DATE the public prosecutor at ORG filed a bill of indictment charging the applicant with membership of an illegal organisation , the DHKP - C , contrary to LAW .

On DATE ORG convicted the applicant , who was represented by CARDINAL lawyers during the proceedings , as charged and sentenced him to CARDINAL years’ imprisonment .

On DATE CARDINAL of the applicant ’s lawyers filed an appeal with ORG against the judgment of DATE .

On DATE ORG upheld the first - instance court ’s judgment .

On DATE ORG decision was deposited with the registry of ORG .

On DATE the committal order ( müddetname ) concerning the execution of his sentence was served on the applicant .


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

PERSON is an NORP citizen residing at PERSON . At the relevant time , he was Chairman of ORG ( PERSON , ORG ) for LOC in GPE and councillor ( PERSON ) of PERSON .

In DATE Mr GPE , Mayor of PERSON in GPE and a member of the ORG , was convicted of negligently causing bodily harm ( fahrlässige GPE ) and of abandoning the victim ( NORP eines ORG ) of a traffic accident whilst under the influence of alcohol ( CARDINAL per mille ) . He was sentenced to CARDINAL months’ imprisonment .

The question whether the Mayor should resign because of his conviction later became the subject of discussion in political circles and the press in LOC .

On DATE the NORP newspaper ORG published an article headed " If ORG does n’t think it over , we will " . That article quoted from an interview with the Head of ORG , PERSON , who was the Chairman of the LOC branch of ORG ( ORG ) , about the question whether the Mayor should resign or not . Mr PERSON stated that , although an accident of the kind in question could happen to anybody , it was not acceptable that a person who had acted in such a way should remain in public office . He continued : " I do not intend to take part in a witch hunt , but after a period of reflection Tomaschitz ought to realise that he must resign " . According to PERSON , however , that was primarily a matter for the ORG . He nevertheless concluded by saying that if Mr Tomaschitz would not think it over , ORG ( ORG ) would .

On DATE PERSON issued a press release by way of reply to that article and sent it to several NORP newspapers . On DATE the ORG published a summary , headed " Looking after morality in the SPÖ " . A complete version of the release appeared on DATE in FAC ( an ORG newspaper ) , under a headline " Different standards ? " ( PERSON ? ) . It read :

" Councillor PERSON , Chairman of ORG for LOC , stated in a broadcast that , after being convicted for leaving the scene of an accident without reporting it , PERSON , the Mayor of PERSON and a member of the ÖVP , would unquestionably have to resign .

However , he added that PERSON , the Head of ORG , did not have the slightest moral right to attack Mayor PERSON for his refusal to resign . PERSON had known for DATE that his Deputy , PERSON , had caused an accident on DATE at ORG ( GPE ) while under the influence of alcohol ( i m alkoholisierten GPE ) . The accident had left CARDINAL children fatherless . One could not help feeling that the Head of ORG applied stricter standards to a ‘ small mayor of a ORG , who was a member of another political party , than to his ‘ party friend’ and Deputy , PERSON . PERSON concluded that PERSON ’s credibility would be enhanced if he were to provide , within the ORG , for the political morals which he requires of others . "

The applicant had based his press release on an article that had appeared in the NORP magazine ORG on DATE . It referred to the circumstances of PERSON car accident in DATE , in which a man had died and other persons had been injured , and contained the following passage :

PERSON was found to have a blood alcohol content of CARDINAL per mille . That was the limit .

DATE , on DATE , Frühbauer , whose immunity as a Member of ORG had been lifted , was sentenced by ORG to a prison term of DATE , suspended for DATE , for negligent homicide .

There was no conviction for intoxication ( GPE ) . Jurists are still guessing at the reasons because , according to LAW CARDINAL of the DATE Road Traffic Code , impairment by intoxication is presumed ‘ at QUANTITY or ORG .

Be that as it may . I do not want ( and the criminal law does not allow me ) to reproach Frühbauer with his conviction at that time . After all , no one is immune from being similarly involved in a traffic accident .

My accusation is a political one . When PERSON was appointed Transport Minister by PERSON in DATE , he kept quiet about his conviction , or at least about the fact that at that time he still had a criminal record ( noch vorbestraft war ) .

In fact on DATE , the date of the judgment , the DATE period of suspension of his sentence began to run . DATE before DATE , on DATE , PERSON was appointed Transport Minister but he continued to have a criminal record for a long time afterwards , because of the period which was then applicable with regard to the cancellation of such records . He was thus , to my knowledge , the only Minister of GPE to have a criminal record ... "

The applicant had verified the contents of the ORG article in a telephone conversation with its author . Furthermore , he had taken into account the judgment of CARDINAL DATE of ORG ( GPE ) . In determining sentence , that court had regarded as an aggravating circumstance the fact that the accused had been driving after consuming alcohol in an amount that brought him close to the level at which a driver was presumed to be intoxicated ( GPE , QUANTITY ) .

On DATE Mr Frühbauer requested ORG ( PERSON , " ORG " ) to initiate a preliminary investigation against PERSON . After completion of the investigation , PERSON brought a private prosecution under LAW paras . CARDINAL and CARDINAL and LAW ( see paragraphs CARDINAL and DATE below ) .

On DATE the applicant was convicted of defamation ( Article CARDINAL paras . CARDINAL and CARDINAL of LAW ) and of having reproached a person with an offence for which he had already served his sentence ( LAW ) . The penalty imposed was a fine of MONEY or , in default of payment , CARDINAL days’ imprisonment . ORG also ordered the seizure of the relevant issue of ORG and the publication of its judgment and awarded to PERSON compensation of MONEY , to be paid by the owners of the newspaper . In addition , the latter were declared to be jointly and severally liable for the payment of the fine and the complainant ’s costs .

After reciting the relevant facts , ORG concluded that , contrary to LAW , PERSON had reproached PERSON with a conviction , relating to a traffic accident , that dated back DATE . Furthermore , his statement that the complainant was under the influence of alcohol and his comparison of the accident in question with Mr ORG , in addition to his criticism of the complainant for lacking political morals , amounted to defamation .

According to ORG , Article CARDINAL was primarily aimed at securing the reintegration of criminal offenders , but it was applicable irrespective of whether or not reproaching them with a previous conviction jeopardised that reintegration .

PERSON had not been obliged under LAW para . CARDINAL of LAW ( see paragraph CARDINAL below ) to make the impugned statement . The fact that a political party felt embarrassed about a car accident of CARDINAL of its officials was not an excuse for " digging out " a very old accident of an official of the opposite party . Moreover , the applicant had not been under a duty to reply to a political opponent , since Mr PERSON ’s criticisms were addressed to Mayor PERSON and not to him . In particular , PERSON , the Chairman of a small district organisation , did not need to react by defaming a third person .

In ORG view , moreover , it was not open to the applicant to plead that his allegation that PERSON had been driving under the influence of alcohol was correct . The man in the street would conclude from such a statement that the latter - like Mr Tomaschitz - had had a blood alcohol content of CARDINAL per mille at the time of the accident . In fact , a lower level was tolerated by the legislature and the public , and the applicant had not mentioned that the complainant had not been convicted of drunken driving ( in alkoholbeeinträchtigtem GPE ) .

Neither could PERSON maintain that he had intended to refer to a blood alcohol content lower than CARDINAL.CARDINAL per mille . The aim of his press release had been to put both accidents in moral terms on an equal footing , which would entail the same consequence , namely the resignation of the CARDINAL officials concerned . That , together with the title of the article , " Different standards ? " , could have led the reader to believe that the complainant ’s blood alcohol content had also attained the forbidden level at the time of his accident .

The defendant also could not claim that his press release had been directed not against PERSON , but against Mr PERSON . It was true that the criticism relating to a lack of political morals had been primarily aimed not at the latter , who was responsible in principle for the political morals of the ORG , but at the former , who had not resigned after his accident . However , that particular allegation could not in itself constitute defamation , since a politician had to be tolerant in this respect ; what was decisive in the present case was the comparison of the CARDINAL accidents from a moral point of view .

In respect of this defamation too , the applicant could not rely on Article CARDINAL para . CARDINAL of LAW , because , as he had or should have been aware , the impugned statement had been incorrect . Furthermore , in the present case proof of good faith ( Article CARDINAL para . CARDINAL ; see paragraph CARDINAL below ) was not relevant , since the offence had taken place through a publication ; neither was proof of proper journalistic care ( section CARDINAL of LAW , Mediengesetz ; see paragraph CARDINAL below ) , since the defendant was not a journalist . As to proof of truth , ORG considered evidence given by a witness of PERSON accident in DATE , as well as the expert opinions submitted in the relevant criminal proceedings in DATE , and concluded that PERSON had failed to prove the truth of his allegations .

On CARDINAL DATE the applicant lodged an appeal ( GPE ) against his conviction with ORG ( Oberlandesgericht ) . He submitted in particular that he had written his press release in the context of a political discussion and in reply to criticisms by the Head of ORG expressed in respect of a member of the ORG and of that party , and that the release had not been directed against PERSON . He had , accordingly , felt himself obliged to defend his own party and to inform the public about the Head of ORG political morals and apparent motives . He had then remembered the DATE Profil article ( see paragraph CARDINAL above ) and found that the CARDINAL accidents raised the same problem , namely whether it was proper for a person with a criminal conviction to exercise official functions . He had thought that this question was worth discussing and wanted to draw the attention of the public to a possible information lacuna . Finally , he had considered his statement about the complainant having driven under the influence of alcohol to be correct , since it was based on the formulation used by ORG in its judgment of CARDINAL DATE ( see paragraph CARDINAL above ) ; and it was also justified in the context of a political discussion .

On DATE CARDINAL ORG dismissed PERSON appeal .

The court observed that the applicant ’s statement had clearly amounted to a reproach concerning a criminal conviction for which the sentence had already been served , within the meaning of LAW . In its view , he had not been compelled to reply to PERSON . Neither had he been given any mandate to reply in the name of the ORG , nor had he himself been addressed directly as Chairman of ORG or as a member of the party ’s executive committee . Someone who by his conduct has given good reason for criticising him must accept attacks on his honour to a greater extent than someone who has not . Furthermore , PERSON himself had made no statement which called for reaction on the part of PERSON .

The court also upheld ORG judgment in all other respects .

The judgment was served on the applicant on DATE . He thereupon requested the Attorney - General ( Generalprokurator ) to file a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) , with reference , inter alia , to the right to freedom of expression under LAW ) of the LAW and to the PERSON v. GPE judgment of DATE ( Series A no . CARDINAL-B ) .

PERSON was informed on DATE that the Attorney- General did not intend to take any action .

Article CARDINAL of the Criminal Code provides :

" CARDINAL . Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...

The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . "

Under LAW , " evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ... " .

Under LAW para . CARDINAL " conduct of the kind mentioned in LAW ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right " . Under paragraph CARDINAL of the same provision " a person who is forced for special reasons to make an allegation within the meaning of LAW ... in the particular form and manner in which it was made , is not to be punished , unless that allegation is untrue and the offender could have been aware thereof if he had acted with the necessary care " .

LAW reads as follows :

" Anyone who in such a way that it may be perceived by a third person reproaches another with having committed a criminal offence in respect of which the sentence has already been served , or has been waived or reduced ( even if only conditionally ) or in respect of which the sentence has been provisionally deferred shall be liable to imprisonment not exceeding DATE or a fine ... "

Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim compensation from him . Furthermore , the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings ( section CARDINAL ) .

The person defamed may request the forfeiture of the publication by which a media offence has been committed ( section CARDINAL ) , as well as the publication of the judgment in so far as this appears necessary for the information of the public ( section CARDINAL ) .

LAW of LAW provides as follows :

" CARDINAL . A media owner ( publisher ) or media employee shall not be punishable for an offence relating to material appearing in the media , in respect of which proof of truth is admissible , not only if proof of truth has been brought but also if there was a predominant public interest in publication and even with proper journalistic care being applied he had sufficient grounds for considering the statement to be true . However , in respect of such an offence relating to a person ’s private life , a media owner ( publisher ) or media employee shall not be punishable only if the statement is true and directly connected with public affairs .

Such proof is to be received only if the accused relies thereon . In cases within the first sentence of paragraph CARDINAL , the court must receive proof of truth , if tendered by the accused and admissible , even if it assumes that the exercise of proper journalistic care has been proved .

If an accused is acquitted only because the conditions specified in the first sentence of paragraph CARDINAL are met , the court must , in analogous application of section CARDINAL , order publication of the finding that proof of truth has not been tendered or has not succeeded , and order that the accused is to bear the costs of the criminal proceedings including the costs of such publication .

Article CARDINAL para . CARDINAL and LAW shall not apply . "


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lived in GPE until his arrest . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

ORG ( “ the Government ” ) were represented by PERSON , ORG at ORG .

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

DATE and DATE and subsequently between CARDINAL DATE and CARDINAL DATE the applicant was held in remand prison GPE in GPE . According to him , the conditions of his detention were inadequate ; the Government disputed that .

By ORG judgment of DATE following a jury trial , the applicant was convicted of forming and leading a criminal syndicate , murder , unlawful possession of weapons and ammunition and armed robbery , and sentenced to DATE imprisonment in a high - security institution . On DATE ORG of GPE upheld the judgment on appeal .

On DATE the web - sites of ORG and ORG and the Regions . Ru news portal published information about the conviction of the applicant and his co - defendants . On DATE the applicant lodged a defamation claim against the ORG offices and the news site , alleging in particular a breach of his presumption of innocence . He sought leave to appear in person before the court but his request was rejected . On DATE the ORG of GPE dismissed his claim , finding that the prosecutors had accurately reported the findings contained in ORG judgment of DATE and that the news items concerned a matter of public interest . The case file does not contain a copy of a statement of appeal or of an appeal judgment .

On DATE the applicant sent a letter to the ORG , containing an outline of his complaints . It was registered under application no . CARDINAL/CARDINAL and the applicant was invited to return the completed application form no later than DATE . As no further correspondence had been received from the applicant for DATE , his complaints were taken to have been withdrawn and the file opened in respect of the application was destroyed .

On DATE the applicant ’s representative Mr Trunov sent a letter to the ORG , indicating that the applicant wished to lodge a complaint under LAW about the conditions of his detention in the ORG remand prison and the conditions of his transport to ORG , a complaint under LAW concerning his pre - trial detention and a complaint under LAW alleged irregularities in the criminal proceedings against him and in the subsequent defamation proceedings . This application was given number DATE .

NORP By letter of CARDINAL DATE , the ORG acknowledged receipt of the letter to the applicant ’s representative and informed him as follows ( translated from NORP ) :

“ You should return by post the completed application form not DATE from the date of the present letter . In other words , the date on which you send back the completed application form must not be later than DATE . Failure to comply with this time - limit will mean that it is the date of the submission of the completed application form rather than that of your first communication which will be taken as the date of the introduction of the application . Your attention is drawn to the fact that it is the date of introduction that is decisive for compliance with the time - limit set out in LAW ( see para . CARDINAL in the enclosed Notes for Guidance to applicants ) . ”

On DATE the ORG received the completed application form . It was signed by PERSON and PERSON , the applicant ’s representatives , and dated “ DATE ” .

On DATE the ORG received a letter from the applicant which was dated DATE . In that letter , the applicant stated his intention to lodge a complaint under LAW and CARDINAL of the Convention about the conditions of his detention in the ORG remand prison in the period after DATE . On DATE the ORG received a letter which was identical in its contents but it was dated DATE and signed by PERSON , the applicant ’s representative .

NORP By letter of DATE , the ORG informed the applicant that another application in his name had already been registered on the basis of Mr Trunov ’s letter of CARDINAL DATE . The applicant was requested to clarify whether he would like to introduce a new application or to have his communication joined to the existing file . ORG did not receive any reply from the applicant .

On DATE the ORG received an undated letter from Mr Trunov , which referred to application no . CARDINAL/CARDINAL . He requested in particular priority treatment of the applicant ’s case , alleging that his life and health were in danger . On DATE the President of ORG rejected the request .

By another undated letter received at ORG on DATE , Mr Trunov petitioned the ORG for a joinder of applications no . CARDINAL/CARDINAL and DATE and reiterated his request for priority treatment . On DATE the ORG advised him that the file opened in respect of application no . CARDINAL/CARDINAL had been destroyed and that his renewed request for priority did not contain any new factual information .