Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicants were born in DATE , DATE , DATE and DATE respectively , live in PERSON , PERSON , GPE and PERSON respectively and are all members of PERSON , a PERSON - based non - governmental organisation .

On DATE the first and the fourth applicants participated in a public gathering in the PERSON cel Mare park in PERSON on the occasion of the anniversary of the CARDINAL reunification of GPE with GPE . The demonstration had been authorised by GPE . At TIME the applicants were arrested and taken to the police station , where they were charged with resisting arrest and insulting police officers .

In a video filmed by the applicants , CARDINAL of the police officers can be seen requesting identity papers from CARDINAL of the participants in the demonstration . After the identity card is presented to the police officer , CARDINAL of the police officers orders the applicants to follow him to the police station and the applicants comply without any resistance . The applicants were released TIME .

On DATE ORG finally acquitted the applicants of all charges in view of a lack of evidence against them . The court found that the accusations made against the applicants were groundless as they were not confirmed by any of the witnesses .

On an unspecified date one of the applicants lodged a criminal complaint against the police officers who had arrested them . However , on CARDINAL DATE the complaint was dismissed as manifestly ill - founded .

On DATE a new Assemblies Act entered into force under which no authorisation was needed for spontaneous gatherings and for gatherings with a limited number of participants . On DATE , at TIME , the first , second and fourth applicants organised a demonstration in front of the residence of the President of GPE . According to them , they intended to express their joy at the entering into force of LAW and to encourage the people to assemble freely . After a short time the applicants were approached by several police officers who ordered them to leave . The applicants refused and argued that according to the new law they had a right to protest peacefully without any authorisation . Later the applicants were arrested and taken to the police station . They were held for TIME and charged with the offences of holding an unauthorised demonstration , resisting arrest and insulting police officers .

On DATE ORG acquitted the applicants of all charges in view of a lack of incriminating evidence against them . The court found that the applicants had a legal right to protest in front of the residence of the President of GPE without any authorisation and that the charges concerning resisting and insulting police officers were groundless .

On an unspecified date the applicants lodged a criminal complaint against the police officers who had arrested them . However , it was dismissed as manifestly ill - founded .

On DATE the ORG company organised a celebration on the occasion of its fiftieth anniversary . A member of PERSON , ORG , who is not an applicant in this case , attempted to protest against censorship at ORG in front of the concert hall in which the celebration was taking place . He was draped in a banner bearing the inscription “ DATE of lies ” and was accompanied by the first , second and third applicants , CARDINAL of whom was filming the event .

After approaching the concert hall , ORG was approached by a group of police officers who surrounded him and ordered him to vacate the premises of the concert hall . ORG and the CARDINAL applicants entered into a verbal clash with the police officers and refused to leave . They argued that they had the right to protest and that the actions of the police were unlawful . After TIME of dispute O.B. was physically attacked by a person in plain clothes . ORG and the applicants requested the assistance of the police and shouted that the attack had been provoked by the police . They were immediately arrested and taken to the police station , where they were charged with the offences of holding an unauthorised demonstration , resisting arrest and insulting police officers . They were released TIME .

On DATE all the applicants and ORG were finally acquitted by ORG of all charges in view of a lack of incriminating evidence against them . The court reached this conclusion after viewing the video of the event and concluding that the applicants’ demonstration had been peaceful and that they had been attacked by a another individual .

In DATE the Government decided to celebrate DATE exclusively on DATE , according to the old religious calendar , and to have a DATE tree installed in the central square of PERSON only in DATE so as to bypass the celebration of DATE on DATE by the adherents of the new religious calendar .

In spite of that decision the PERSON local government , which was represented by a political majority different from that of the central Government , decided to install a Christmas tree in DATE and to organise celebrations on the occasion of the new religious calendar DATE . On DATE a truck transporting the municipality ’s DATE tree was stopped by the police and the tree was confiscated .

In TIME of DATE a group of GPE members , including the first and second applicants , attempted to organise a protest demonstration in front of ORG in order to express their concern about the actions of the police . The first applicant was arrested on the street while walking towards the building of ORG carrying a small Christmas tree . He was taken to the police station and charged with the offence of organising an unauthorised demonstration . He was released TIME . The second applicant was near a trolleybus stop when a group of CARDINAL plain - clothes police officers forced him into a trolleybus . They cornered him and , in spite of his protests , released him TIME and several stops later . The applicants submitted a video of this .

On DATE the first applicant was acquitted in view of a lack of incriminating evidence against him .

On an unspecified date the first and second applicants lodged a criminal complaint against the police officers . However , on DATE the complaint was dismissed as manifestly ill - founded .

On DATE the first applicant organised a protest demonstration in front of ORG together with CARDINAL participants who are not applicants in this case . The aim of the demonstration was to denounce the inaction of ORG in connection with abuses by the police . TIME the beginning of the demonstration the protesters were attacked by CARDINAL men wearing masks , who started to beat them up and spray them with tear gas . The protesters defended themselves and managed to immobilise CARDINAL attackers . CARDINAL of the attackers admitted to having been paid CARDINAL NORP lei ( MDL ) by an unknown person to participate in the attack . A police unit patrolling nearby did not intervene to put an end to the clash between the protesters and the attackers . The protesters called the police and requested the assistance of the police officers who were guarding ORG , but to no avail .

According to the applicants , the organisers of the demonstration lodged a criminal complaint with ORG ; however , no action was taken . The applicants were unable to present proof that they had lodged the complaint and argued that the relevant documents had been seized by the police on the occasion of an unlawful search of GPE LOC .

The Government disputed that the applicants had complained to ORG in respect of the events of DATE .

Article CARDINAL of the LAW of GPE ( on freedom of opinion and of expression ) reads as follows :

“ ( CARDINAL ) Each citizen is guaranteed freedom of thought and of opinion , as well as freedom of expression in public through words , images or other available means .

( CARDINAL ) Freedom of expression shall not be prejudicial to the honour or dignity of others or the right of others to have their own opinion .

( CARDINAL ) The law prohibits and punishes the calling into question and defamation of the ORG and the nation , calls to war and aggression , national , racial or religious hatred , and incitement to discrimination , territorial separatism , or public violence , as well as any other expression which endangers the constitutional order . ”

Article CARDINAL ( on freedom of assembly ) provides :

“ All meetings , demonstrations , rallies , processions or any other assemblies are free , but they may be organised and take place only peacefully and without the use of weapons . ”

The relevant provisions of LAW of DATE read as follows :

( CARDINAL ) ORG shall be conducted peacefully , without any sort of weapons , and the protection of participants and the environment must be ensured , without impeding the normal use of public highways , road traffic or the operation of businesses , and without degenerating into acts of violence capable of endangering public order or the physical integrity or life of persons or their property .

Assemblies shall be suspended in the following circumstances :

( a ) denial and defamation of the ORG and of the people ;

( b ) incitement to war or aggression and incitement to hatred on ethnic , racial or religious grounds ;

c ) incitement to discrimination , territorial separatism or public violence ;

d ) acts that undermine the constitutional order .

( CARDINAL ) ORG may be conducted in squares , streets , parks and other public places in cities , towns and villages , and also in public buildings .

( CARDINAL ) It shall be forbidden to conduct an assembly in the buildings of public authorities , local authorities , ORG offices , courts or companies with armed security .

( CARDINAL ) It shall be forbidden to conduct assemblies :

( a ) within QUANTITY of the ORG building , the residence of the President of GPE , the seat of the Government , ORG and ORG ;

( b ) within QUANTITY of the buildings of the central administrative authority , the local public authorities , courts , ORG offices , police stations , prisons and social rehabilitation institutions , military installations , railway stations , airports , hospitals , companies which use dangerous equipment and machines , and diplomatic institutions .

( CARDINAL ) PERSON access to the premises of the institutions listed in subsection ( CARDINAL ) shall be guaranteed .

( CARDINAL ) The local public authorities may , if the organisers agree , establish places or buildings for permanent assemblies .

( CARDINAL ) Not DATE prior to the date of the assembly , the organiser shall submit a notification to ORG , a specimen of which is set out in the annex which forms an integral part of this LAW .

( CARDINAL ) The prior notification shall indicate :

( a ) the name of the organiser of the assembly and the aim of the assembly ;

( b ) the date , starting time and finishing time of the assembly ;

( c ) the location of the assembly and the access and return routes ;

( d ) the manner in which the assembly is to take place ;

( e ) the approximate number of participants ;

( f ) the persons who are to be responsible for the proper conduct of the assembly ;

( g ) the services the organiser of the assembly asks ORG to provide .

( CARDINAL ) If the situation so requires , ORG may alter certain aspects of the prior notification with the agreement of the organiser of the assembly .

( CARDINAL ) The prior notification shall be examined by the local government of the town or village at DATE of the assembly .

( CARDINAL ) When the prior notification is considered at an ordinary or extraordinary meeting of ORG , the discussion shall deal with the form , timetable , location and other conditions for the conduct of the assembly , and the decision taken shall take account of the specific situation .

( CARDINAL ) The local authorities may reject an application to hold an assembly only if , after consulting the police , they have obtained convincing evidence that the provisions of sections CARDINAL and CARDINAL will be breached with serious consequences for society .

( CARDINAL ) A decision rejecting an application to hold an assembly shall be reasoned and presented in writing . It shall contain reasons for the refusal to issue the authorisation ...

( CARDINAL ) The organiser of the assembly may challenge the refusal in the administrative courts .

Section CARDINAL

Participants in the assembly are required :

( a ) to respect the present LAW and other laws referred to herein ;

( b ) to respect the instructions of the organiser of the assembly , and decisions of the municipality or police ;

( e ) to leave the assembly if asked by the organiser , the municipality or the police . ”

On DATE ORG adopted a new LAW under which no authorisation was needed for the holding of demonstrations with CARDINAL participants .

The relevant provisions of LAW read as follows :

( CARDINAL ) Illegal deprivation of liberty , other than kidnapping , shall be punishable by TIME of community work or imprisonment for DATE .

( CARDINAL ) The same offence committed

b ) DATE against CARDINAL or more persons ;

d ) by CARDINAL or more persons ;

shall be punishable by imprisonment for DATE .

( CARDINAL ) Violation of the right to freedom of assembly by way of the illegal hindering of a demonstration , rally or act of protest , or the preventing of persons from taking part in them ... :

a ) committed by an official ;

b ) committed by CARDINAL or more persons ;

c ) accompanied by acts of violence which do not pose a danger to life or health ,

shall be punishable by a fine of CARDINAL NORP lei or by community work of TIME , or by imprisonment for DATE . ”

The relevant provisions of LAW ( “ the CAO ” ) , in force at the material time , read :

NORP The organisation and holding of an assembly without prior notification of ORG or without authorisation from the ORG , or in breach of the conditions ( manner , place , time ) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers ( leaders ) of the assembly in an amount equal to between MDL CARDINAL and CARDINAL . ...

Active participation in an assembly referred to in paragraph CARDINAL of the present Article shall be punishable by a fine in an amount between MDL CARDINAL and CARDINAL .

Resisting a police officer ... in the exercise of his or her duties of ensuring public order and the fight against crime shall be punishable by a fine of up to MDL CARDINAL or detention for DATE .

Insulting police officers ... in the exercise of their duties ... shall be punishable by a fine of up to MDL CARDINAL or imprisonment for DATE . ”

According to LAW who disobey in bad faith the lawful orders of police officers , or resist or insult police officers , may be detained until their case is examined by a court .

The relevant provisions of PERSON no . CARDINAL ( DATE ) on compensation for damage caused by the illegal acts of the criminal investigation organs , prosecution and courts have been set out in this ORG ’s judgment in ORG v. GPE , no . CARDINAL , § DATE , DATE . In the case of PERSON v. ORG ( no . CARDINAL , DATE ) ORG found that a person could claim damages on the basis of PERSON no . MONEY ( DATE ) only if he or she had been fully acquitted of all the charges against him or her . Since Mr PERSON had been found guilty in respect of CARDINAL of the charges brought against him , he could not claim any damages .


Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants are NORP nationals , who were arrested on suspicion of involvement in an illegal organisation . Subsequently , criminal proceedings were brought against them , which are , according to the information in the case files , currently pending before the domestic courts .

The information concerning the applications , the dates of the applicants ' arrest , bills of indictment , decisions of the domestic courts and the total length of the proceedings , as submitted by the applicants , is detailed in the annexed table .


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

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

On DATE the ORG instituted preliminary investigations against the applicant on suspicion of having committed aggravated fraud ( schwerer FAC ) and fraudulent conversion ( PERSON ) . In particular , he was suspected of having manipulated a call for tenders ( ORG ) for the construction of a tunnel in favour of a specific company .

On DATE the applicant was questioned by the Investigating Judge about these charges for the first time .

Subsequently , the charges against the applicant were extended to CARDINAL counts of aggravated fraud and fraudulent conversion .

In DATE the Investigating Judge appointed experts on geology and explosives .

On DATE the Investigating Judge ordered the tapping of the applicant ’s telephone . On DATE the telephone tapping was terminated . Subsequently , the applicant introduced an application with ORG against this measure ( Application no . CARDINAL/CARDINAL ) , which was declared inadmissible by the Commission on DATE .

In DATE and DATE CARDINAL reports by the court appointed experts on geology and explosives submitted their reports to ORG . CARDINAL on geology was submitted in DATE .

In DATE ORG at ORG lodged the first bill of indictment . In DATE the second bill of indictment was lodged . ORG dismissed the applicant ’s objections ( Einspuch ) against these indictments .

On DATE the trial before ORG commenced . On DATE , after CARDINAL court hearings , the applicant was convicted of CARDINAL counts of aggravated fraud and fraudulent conversion and acquitted of the other charges . He was sentenced to CARDINAL years’ imprisonment .

On DATE ORG dismissed the applicant ’s plea of nullity , but granted the plea of nullity lodged by ORG and quashed the applicant ’s acquittal on CARDINAL charges . Although the applicant ’s conviction in respect of CARDINAL counts had become final , ORG remitted the case to ORG in respect of CARDINAL counts of fraud and fraudulent conversion . Thereupon , ORG resumed the preliminary investigations concerning these charges .

On DATE ORG partially granted the applicant ’s request for the re - opening of the proceedings ( PERSON ) . On DATE ORG , on the applicant ’s appeal , ordered a complete retrial , including all charges against the applicant .

On DATE the Innsbruck ORG acquitted the applicant of all the charges against him .

Section CARDINAL of LAW ( PERSON ) , which has been in force since DATE , provides as follows .

" ( CARDINAL ) If a court is dilatory in taking any procedural step , such as announcing or holding a hearing , obtaining an expert ’s report , or preparing a decision , any party may submit a request to this court for the superior court to impose an appropriate time - limit for the taking of the particular procedural step ; unless sub - section ( CARDINAL ) of this section applies , the court is required to submit the request to the superior court , together with its comments , forthwith .

( CARDINAL ) If the court takes all the procedural steps specified in the request within DATE after receipt , and so informs the party concerned , the request is deemed withdrawn unless the party declares within DATE after service of the notification that it wishes to maintain its request .

( CARDINAL ) The request referred to in sub - section ( CARDINAL ) shall be determined with special expedition by a chamber of the superior court consisting of CARDINAL professional judges , CARDINAL of whom shall preside ; if the court has not been dilatory , the request shall be dismissed . This decision is not subject to appeal . "


Costas Pamballis;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pamballis

The applicant , Mr PERSON , was born in DATE and submitted that he was a ORG national . He was initially represented before the ORG by Mr G. ORG , a lawyer practising in GPE . On DATE the applicant appointed PERSON , a lawyer practising in GPE , to represent him in the remaining proceedings before the ORG . ORG ( “ the Government ” ) were represented by their Agent , Mr P. Clerides , Attorney - General of GPE .

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

The applicant entered the “ GPE ” ( “ GPE ” ) unlawfully in DATE and served a sentence of CARDINAL months’ imprisonment there after being convicted for possessing a false NORP passport .

While in prison , the applicant applied to the office of the ORG High Commissioner for Refugees in GPE ( “ ORG ” ) for asylum .

On DATE the applicant ’s asylum application was dismissed , apparently because he was not a ORG but a NORP national .

The applicant lodged an appeal .

The applicant entered GPE unlawfully on an unspecified date early in DATE . He was found by the police on DATE . The applicant did not have a passport on him but only a paper stamped by the “ GPE ” and dated DATE on which his personal details were written . The Government submitted that the applicant alleged that he did not know where his passport was . The applicant was arrested and after being convicted on DATE by ORG for entering the Republic illegally he was sentenced to CARDINAL months’ imprisonment . He was detained in FAC ( “ the LOC ” ) .

On DATE , while the applicant was serving his prison sentence , detention and deportation orders were issued by the Director of ORG under section CARDINAL ( CARDINAL ) ( d ) of the Aliens and Immigration PERSON ( PERSON . CARDINAL as amended ) on the ground that the applicant was a prohibited immigrant . The applicant was to be deported to PERSON . The applicant submitted that he had never received notification of these orders or of any / the available remedies against them .

By a letter dated DATE ORG informed the Attorney - General of the Republic that the applicant could not be deported as he did not have a passport or any other travel document and did not have a ticket or any money for the purchase of a ticket . He noted that efforts were being made to resolve the matter .

By a letter dated DATE ORG informed ORG that the applicant was going to be released on DATE but could not be deported as he did not have a passport or any other travel document . It requested ORG to take the necessary steps to secure a PERSON travel document as a NORP travel document would not be accepted by the airlines travelling to PERSON or the transit countries .

The Government submitted that on DATE the applicant was released after having received a pardon but was , however , re - arrested on the basis of the detention and deportation orders which had been issued against him on DATE . The applicant was transferred to the immigration detention facilities in FAC ) , where he was detained with a view to his deportation .

The applicant submitted that he had never been released on pardon and that after serving his sentence he continued to be detained on the basis of the detention and deportation orders that had been issued in the meantime .

In a letter dated DATE ORG informed ORG that it was impossible to obtain a ORG travel document for a number of reasons , such as the absence of NORP diplomatic missions in PERSON and the difficulties in proving to the ORG authorities that the applicant was indeed a ORG national . It was noted that a travel document could be issued by the NORP authorities once an airline ’s consent had been obtained to such a document , to send the applicant back to his country .

In a letter dated DATE the ORG informed ORG of the applicant ’s asylum application , requested that deportation proceedings against the applicant be suspended , that the appropriate measures be taken for his release and that the applicant be allowed to remain in GPE pending the decision on his asylum claim .

The applicant was released on DATE pending the examination of his asylum application and was granted a temporary residence permit until DATE .

In a letter dated DATE , the ORG requested , that the applicant ’s residence permit be renewed for DATE pending the examination of his asylum claim . The residence permit was renewed until DATE .

The ORG dismissed the applicant ’s appeal on DATE . It appears from this decision that although the applicant had initially claimed that he was a citizen of PERSON , in his interview with ORG officials on DATE he had changed his mind when an official had informed him that PERSON citizens were sent back to PERSON . The applicant had been unable to reply to basic questions concerning PERSON and had stated that he was in fact from GPE . Upon reviewing the case the ORG accordingly considered that the applicant ’s submission did not warrant a change of the original decision of DATE .

On DATE the Director of ORG issued new detention and deportation orders against the applicant under section CARDINAL ( CARDINAL)(k ) of the Aliens and Immigration PERSON , on the ground that he was a prohibited immigrant . The applicant was to be deported to GPE .

The applicant was arrested on DATE on the basis of these orders and was taken to the immigration detention facilities in FAC ) .

On DATE the applicant filed a habeas corpus application before ORG ( first instance – application no . CARDINAL ) .

On DATE the applicant withdrew the application following the authorities’ decision to release him in order to enable him to file a new asylum application . The applicant was released on the above date .

On DATE the applicant submitted a new asylum application to ORG .

On DATE the applicant filed an application for a temporary residence permit . In his application he gave the address of the hotel in GPE in which he was staying .

On DATE a residence permit was issued for as long as the applicant had asylum seeker status .

In a letter dated DATE ORG informed the applicant that an interview had been arranged for DATE . However , the authorities were not able to serve the applicant with the letter as he could not be found at the address he had given them . The applicant did not attend the interview .

The applicant submitted that the hotel where he had been staying and which had been used as a residence for asylum seekers by ORG of ORG , had closed down in DATE following a fire , and that the authorities had been aware of this . He claimed that the authorities had had his telephone number .

It appears from the case file that the applicant declared his change of address to the authorities on DATE .

In a letter dated DATE , ORG informed the applicant that , having examined his file , it had decided to close it and suspend the examination of the asylum application by virtue of LAW ( A ) ( CARDINAL ) ( a ) of LAW of DATE ( Law CARDINAL ( I ) of DATE , as amended ) . It was noted that the applicant had not complied with the obligation deriving from section CARDINAL of LAW of DATE , according to which , in the event of a change of address , the applicant had to inform ORG either directly or through the district ORG . The applicant was requested to make arrangements to leave GPE DATE of receipt of the letter . The letter was sent to the address the applicant had given in his asylum application .

The applicant was arrested on DATE by members of the Aliens and Immigration service . The Government submitted that the officers had entered the room with a search warrant in the course of an investigation concerning drug - related offences . Although no drugs had been found , upon verifying the applicant ’s personal details they realised he was in the Republic illegally . He was arrested as an illegal alien and taken to the detention facilities in FAC . The applicant submitted that such raids were common practice in hotels and residences where it was known that asylum seekers and immigrants were staying . Upon arresting him , the police had accused him of trying to hide from the NORP authorities and of changing address without informing them , which the applicant denied . He submitted that it was at this point that he had become aware of ORG decision to close his file . Lastly , the applicant claimed that the police had not allowed him to take any of his belongings , including the passport which he had in the meantime secured from PERSON through his family . His passport had thus been lost .

On DATE the Director of ORG issued new detention and deportation orders against the applicant under section CARDINAL ( CARDINAL)(k ) of the Aliens and Immigration PERSON , on the ground that he was a prohibited immigrant . He was to be deported to PERSON . A letter was also addressed to the applicant on the same date informing him of the orders and giving reasons . The Government submitted that the applicant had been informed of the orders on DATE . The applicant submitted that the information had not reached him until DATE after his arrest , when he had sought help from a non - governmental organisation .

On DATE the same non - governmental organisation lodged an appeal on behalf of the applicant with ORG decision to close his file . This was dismissed on DATE . The applicant was served with the decision on DATE .

The applicant did not bring a recourse against this decision before ORG .

In the meantime , on DATE the applicant brought a recourse before ORG ( revisional jurisdiction ) under LAW challenging the detention and deportation orders of DATE . In this it was stated that the applicant was a ORG national . The applicant claimed that in PERSON he had worked as the driver of the wife of the leader of CARDINAL of the warring parties and for this reason he had been tortured and persecuted during the civil war in PERSON . After having fled to GPE and then GPE , he had unlawfully entered the “ GPE ” and then GPE . In his written address in the proceedings before ORG the applicant stated that he had been informed by the police on DATE that deportation and detention orders had been issued against him , but had never been informed of the reasons for the orders in question or about the cancellation of his temporary residence permit . Nor had he been given the opportunity to be represented in relation to the orders .

On DATE ORG ( full bench ) dismissed the recourse . The court noted that the applicant had left his place of residence without informing the authorities and had transgressed the conditions of his residence in GPE despite having already served a prison sentence for unlawful entry into the LOC . The authorities had found him subsequently by chance , whilst carrying out certain investigations concerning another case . As the applicant had been living in GPE unlawfully , the detention and deportation orders had been correctly issued against him on the basis of the Aliens and Immigration PERSON . The court therefore concluded that the decisions to close his file and to issue the aforementioned orders had been lawful .

On DATE the applicant was taken to GPE airport for deportation . He was deported with a NORP travel document issued by the authorities and a photocopy of his passport . CARDINAL policemen escorted him . Upon his arrival in GPE , the last stop before PERSON , the authorities there refused to allow the applicant to depart to PERSON on the grounds that his escorts did not have a visa and tickets for PERSON . As a result the applicant and the policemen all returned to GPE .

The applicant was initially detained in GPE airport detention facilities , then he was taken to FAC of FAC , where he was held until DATE .

On DATE the Director of ORG issued new detention and deportation orders against the applicant under section CARDINAL ( CARDINAL)(k ) of the Aliens and Immigration PERSON .

On DATE the applicant was transferred to GPE police station detention centre , but on DATE he was taken back to Block CARDINAL at FAC .

The Government submitted that a number of efforts had been made subsequently by the authorities to obtain a ORG travel document for the applicant and to verify his true identity . The Sierra Leone Consul had visited the applicant at the police station in an attempt to establish his identity . Additional efforts had been made by the NORP and PERSON in GPE with a view to issuing a travel document .

In DATE another attempt was made to deport the applicant . The flight to PERSON was via GPE but ORG in GPE refused to issue a transit visa for the applicant .

On DATE the applicant was taken to GPE airport to be deported to PERSON on a ORG flight via GPE and GPE . The applicant was escorted by CARDINAL members of the immigration services . The applicant resisted boarding and as a result the airline did not allow him to board the aircraft . The applicant claimed that he had resisted boarding because of a genuine fear of persecution if he was sent back to PERSON and because of his poor psychological state after his lengthy detention . The applicant was then transferred to Aradippou police detention centre , where he was held until DATE , on which date he was transferred back Block CARDINAL at FAC .

Letters dated DATE were sent by ORG seeking the assistance of the NORP and ORG to allow transit . The Government submitted that the replies of the above ORG were received on DATE , but did not provide any information as to their content . The applicant ’s deportation to PERSON on a flight via GPE and GPE was then arranged for DATE . The applicant was escorted by CARDINAL members of ORG . However , the NORP airline refused to allow the applicant to board the aircraft . The applicant submitted that he had not refused to board .

The applicant maintained that he had been detained at GPE airport from DATE until DATE .

On DATE , given the failed attempt to deport the applicant , the detention and deportation orders of CARDINAL DATE were cancelled and the applicant was released on the former date under the condition that he presented himself twice a day for DATE at FAC . The applicant submitted that following the expiry of the CARDINAL-day period he still had to report to the police DATE .

The applicant was held , together with another detainee , in a cell that measured QUANTITY . The cell had no heating or air conditioning system . Although there were heating and cooling units in the common areas , these did not suffice to heat and cool the individual cells . The cell had a window which was not insulated and as a result the applicant had to cover the sides of the window with newspapers to protect himself from draughts . Apart from a bunk bed , there had been no other furniture in the cell . Because of the structure of the bunk beds , it was impossible to sit up straight on the lower bunk ; the only alternative was to sit on the floor .

According to the Government all the cells in LAW measured CARDINAL by QUANTITY and could accommodate CARDINAL detainees . No records were kept as to whether CARDINAL detainees actually shared a cell . It was quite possible that the applicant had shared a cell with another detainee during his detention .

All the cells had one window which was properly insulated against draughts .

The cells were open TIME a day , with access to open spaces on both the lower and upper floors of FAC . Common rooms and entertainment rooms were situated in these spaces . Detainees were therefore able to move freely between their cells and these spaces .

Furthermore , there was central heating and air conditioning in the open areas and the power of the units was sufficient to heat or cool every cell . The average temperature in each cell was fixed by the detainees themselves .

In his observations of DATE the applicant provided a description of the conditions of his detention in the FAC detention centre , ORG detention centre and GPE airport .

The applicant was held in GPE police station detention centre from DATE .

He was held in a cell measuring QUANTITY , with no heating or air conditioning . The cell had a small window which could not be reached and which let air in . For a bed it had a concrete block with a mattress . No blankets were provided . During the applicant ’s stay , from TIME to TIME and depending on the time the next officer on duty turned up for his shift , the detainees were given a choice between being locked up in their cells or being in the overcrowded communal space , where there were no chairs , recreational facilities or sunlight . Following a hunger strike , the applicant was transferred from FAC back to FAC at FAC .

The applicant was held in Aradippou police detention centre DATE and DATE .

His cell was smaller than that in Block CARDINAL and the FAC detention centre and he shared it with another detainee . He had no freedom of movement outside the cell . The cell had a very low ceiling , QUANTITY high . Although there was heating and air conditioning in the cell it was not switched on on a regular basis . The lighting was also insufficient and the applicant submitted that as a result he had developed problems with his eyesight . Lastly , the cell window had been properly insulated against draughts .

The applicant was held in GPE airport detention facilities DATE and DATE .

There he was held in a large , overcrowded cell with many beds and no heating or cooling system . The toilet was inside the cell . The cell had CARDINAL window , which was insulated . The detainees were not allowed to leave the cell .

On DATE the applicant filed a complaint with the Commissioner for Administration of GPE ( hereinafter “ the Ombudsman ” ) concerning his continuing detention , ORG decision to close his file and his intended deportation .

On DATE the ORG acknowledged receipt of the complaint and informed the applicant that an investigation into his complaint had already begun .

In his observations of DATE the applicant submitted that the ORG had not yet published a report . No further information has been provided as to the outcome of the applicant ’s complaint .

In a letter dated DATE , the applicant ’s representative , Ms Charalambidou , informed the ORG that the applicant had been arrested on DATE by the Aliens and ORG for working without a work permit . The applicant is currently in detention pending the trial of the case by the domestic courts .

Part II of the LAW contains provisions safeguarding fundamental human rights and liberties . LAW protects the right to liberty and security . It reads as follows , in so far as relevant :


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

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

The applicant produced machine components for an agricultural co - operative . Because of late payment , the applicant issued a prompt collection order , which was paid by the co - operative . However , in the meantime payment of the same amount was also transferred by a bank to the applicant 's account . In DATE the agricultural co - operative brought an action for unjust enrichment against the applicant before ORG . The first hearing was held on DATE .

On DATE the applicant brought a counter - claim against the plaintiff for damages allegedly resulting from the late payment .

On DATE the ORG heard the parties . On DATE it heard the applicant .

At the hearing of CARDINAL DATE ORG appointed an expert . He submitted his opinion on DATE . On DATE the court heard the expert .

On DATE ORG accepted the plaintiff 's action and ordered the applicant to pay MONEY and interest to the co - operative . It also dismissed the applicant 's counter - claim .

On appeal , on DATE ORG quashed the first - instance decision and transferred the case to its competent bench , holding that it had jurisdiction in the matter .

On DATE the court held a hearing .

At the hearing of DATE the plaintiff informed the court that proceedings had been instituted against him by the applicant .

On DATE , DATE , CARDINAL DATE and CARDINAL DATE the court heard witnesses as well as the parties .

A hearing scheduled for DATE was postponed by the court to CARDINAL DATE . On DATE , the plaintiff requested the court to suspend the proceedings pending the final decision in another case .

On DATE the applicant modified her counter - claim .

In the meantime , the applicant requested that a hearing be held . At the hearing of DATE neither the plaintiff nor the applicant appeared despite having properly been summoned . Consequently , the proceedings were stayed ( szünetelés ) by force of law , pursuant to section CARDINAL § CARDINAL b ) of the Code on Civil Procedure . None of the parties requested the continuation of the case for DATE . Therefore , on DATE the proceedings were discontinued ( megszűnés szünetelés folytán ) in application of § CARDINAL of the same section .

In the case underlying the plaintiff 's request for suspension , the final judgment was adopted on DATE and served on the applicant on DATE . On DATE the applicant requested that a hearing be held in the present case . She attached ORG judgment .

In reply to the applicant 's request , on DATE ORG informed her that the case had been discontinued on DATE according to section QUANTITY on Civil Procedure .

Section CARDINAL of the Code on Civil Procedure reads as relevant :

“ ( CARDINAL ) The proceedings shall be stayed ( szünetelés ) [ by force of law ] , if

a ) ...

b ) none of the parties appears at any of the hearings , ... and the plaintiff has not requested that the hearing be held despite his absence , ...

( CARDINAL ) ... The proceedings shall be continued at the request of either of the parties .

( CARDINAL ) If the proceedings were stayed for DATE , the proceedings shall be discontinued ( megszűnés ) [ by force of law ] on the final date of that period . No request for reinstatement can be submitted in this respect . ”


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

On DATE the applicant , a journalist , published an article in a column entitled “ Opinion ” of a national DATE paper . The subject of the article was the quality of a well - known NORP wine variety , a product of PERSON , a ORG - owned corporation , which was , in the applicant ’s view , bad and its popularity with NORP consumers unjustified . The article contained the following passage :

“ On CARDINAL out of QUANTITY occasions , it is a product of PERSON , available below CARDINAL [ NORP forints ] per bottle , that represents the world ’s best wine region , ORG ... [ and that could make me cry ] . Not only because of the taste – although that alone would easily be enough for an abundant cry : sour , blunt and over - oxidised stuff , bad - quality ingredients collected from all kinds of leftovers , grey mould plus a bit of sugar from GPE , musty barrel – but because we are still there ... : CARDINAL of NORP drink [ this ] shit with pride , even devotion ... our long - suffering people are made to eat ( drink ) it and pay for it at least twice ( [ because we are talking about a ] ORG - owned company ) ; it is being explained diligently , using the most jerk - like demagogy from both left and right , that this is national treasure , this is how it is supposed to be made , out of the money of all of us , and this is very , very good , and we even need to be happy about it with a solemn face . This is how the inhabitants ( subjects ) of the country are being humiliated by the skunk regime through QUANTITY of alcoholised drink .

And once again , I would remind everybody of how people were whining back then , saying that foreigners were coming to destroy [ T. ] , buy up the market and make everything multinational and alien - hearted ; and then it turned out that those foreigners made gorgeous wine , just like some lucky , resolute and very talented NORP family wineries , that they tried to make [ T. ] world - famous again , because this was their business interest ( profit , ugh ! ) ; while we as a community are trying to destroy their achievements using ORG money , lest something finally could be a success . ... ”

T. Zrt filed a criminal complaint against the applicant . On DATE the Budapest II / III ORG convicted him of defamation ( rágalmazás ) . The court held that the criticism expressed in the applicant ’s article went beyond the boundaries of journalistic opinion and amounted to stating a fact susceptible of harming the reputation of the producer of the wine variety in question . The court refrained from imposing a sentence for DATE .

On appeal , on CARDINAL DATE ORG reversed this judgment , holding that the incriminated statement was a value judgment and that therefore the applicant was to be convicted for libel ( becsületsértés ) under LAW of LAW . The court held that although the applicant was entitled to express his opinion about the wine in question , by characterising it as “ shit ” – an expression unduly insulting – he had infringed the producer ’s right to a good reputation . The court reduced the sanction to a reprimand .

On DATE ORG upheld the applicant ’s conviction and sentence .


CASE OF ERNST AND ANNA LUGHOFER v. AUSTRIA

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

The applicants ' farm was the object of land consolidation proceedings ( PERSON ) instituted by LOC ( PERSON ) on DATE .

On DATE ORG held a hearing at which the farmers concerned could express their wishes ( PERSON ) and on CARDINAL DATE ORG ordered the provisional transfer of the properties concerned , inter alia , land owned by the applicants . In DATE ORG issued a consolidation plan ( Zusammenlegungsplan ) . The applicants appealed , claiming that they had not received adequate land in exchange for their parcels AK DATE . On DATE the ORG ( ORG ) dismissed the applicants ' appeal after an oral hearing held in private , but in the presence of the parties and their lawyer .

On DATE the applicants filed a complaint with ORG ( Verwaltungsgerichtshof ) against the above decision . They also asked the ORG to hold an oral hearing .

On DATE ORG dismissed the complaint , rejecting at the same time , in accordance with LAW ) no . CARDINAL of LAW , the applicants ' request for an oral hearing .

Section CARDINAL ( CARDINAL ) of ORG ( Agrarverfahrensgesetz ) provided as follows :

" Land Reform Boards take their decisions after an oral hearing in the presence of the parties . "

It is the constant practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise .

By virtue of legislation enacted in DATE ( ORG no . CARDINAL , p. CARDINAL ) , hearings before ORG are now public .

Pursuant to LAW ( ORG ) , proceedings consist essentially in an exchange of written pleadings . If CARDINAL of the parties so requests ORG may hold a hearing which is in principle held in public ( Sections CARDINAL ( CARDINAL ) no . CARDINAL and DATE ( CARDINAL ) ) .

Section CARDINAL ( CARDINAL ) of LAW provides that ORG is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time - limit . Section CARDINAL ( CARDINAL ) no . CARDINAL , which was added to the LAW in DATE , provides however :

" Notwithstanding a party 's application ... , ORG may decide not to hold a hearing where ...

it is apparent to the ORG from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that an oral hearing is not likely to clarify the case further . "


Violation of P1-1;Just satisfaction reserved;Preliminary objection dismissed (victim)

The first CARDINAL applicants and the fourth applicant 's late mother owned agricultural land in GPE . In DATE ORG began the building of a school on adjoining land . While the works were under way , it became apparent that an additional plot of land would be needed to complete the construction .

By a decree issued on CARDINAL DATE , ORG authorised ORG to take possession , under an expedited procedure , of QUANTITY m. of land belonging to the applicants for a maximum period of DATE with a view to expropriating it in the public interest . The land was recorded on the cadastral register as “ partita ” no . DATE , folio no . CARDINAL , parcel no . CARDINAL .

On DATE ORG took physical possession of the land and started the building works .

The case file shows that the school was not completed until DATE , by which time the authorised period of possession had expired .

The applicants say that they waited in vain for DATE for their land to be formally expropriated and for compensation .

By a writ served on CARDINAL DATE the applicants brought an action in damages against ORG before ORG . They submitted , inter alia , that the authorities were in possession of their land illegally as the authorised period had expired without any formal expropriation or the payment of compensation .

NORP The respondent council argued , in particular , that the action in damages was time - barred .

On DATE ORG dismissed the objection raised by the council that the action in damages was time - barred , finding that the council had not stated when the works had been completed . Referring to ORG case - law on constructive expropriation ( occupazione acquisitiva ) , ORG said that the applicants ' right of property had been extinguished on completion of the public works . However , since the transfer of property had been linked to the unlawful taking of possession of the land , the applicants were entitled to damages calculated on the basis of the market value of the land , namely CARDINAL NORP lire ( MONEY per sq . m. ) , which , with index - linking to the date the judgment was delivered , came to MONEY , plus interest .

On DATE ORG appealed against that judgment . It submitted in particular that the applicants ' right to damages was time - barred .

In a judgment of DATE , ORG allowed ORG appeal and declared that the applicants ' right to damages was time - barred .

ORG held that the works had been completed on DATE . As that was after the expiry of the DATE period stipulated by the Prefecture in its expedited possession order , it followed that the possession of the land was by then unlawful . However , under the constructive - expropriation rule , as established by the courts , ORG had acquired ownership of the land from the date the building works were completed . Since the council had acquired the property unlawfully , the applicants were entitled to seek damages ; however , in the instant case , the applicants ' right to damages was time - barred because the DATE limitation period had started to run from the date of completion of the works .

On DATE the applicants appealed to ORG . They argued that the retrospective application of the constructive - expropriation rule established by ORG in DATE , coupled with the retrospective application of a limitation period , infringed both their right of property and the non - discrimination principle , as guaranteed by LAW . Up to DATE , landowners had retained ownership throughout the period of unlawful occupation of their land . Accordingly , although a DATE limitation period applied to actions in damages , the fact that the effects of the unlawful occupation were permanent meant that the landowner was entitled to seek damages at any time , as the occupation of the land remained unlawful . However , after DATE , owners deprived of their land by the authorities lost ownership from the date the works were completed and the limitation period started to run from that point . The applicants also contested the applicability of the DATE limitation period , arguing that ORG decisions on the issue were conflicting .

In a judgment of DATE , lodged at the registry on CARDINAL DATE , ORG dismissed the applicants ' appeal . As regards which limitation period was applicable , it observed that on DATE the full court of ORG had resolved that issue finally , holding that the DATE period must apply . In the instant case , the applicant 's right to damages was therefore time - barred . As to the complaint that the retrospective application of the constructive - expropriation rule and the DATE limitation period was unconstitutional , since it infringed the applicants ' right to the peaceful enjoyment of their possessions and the non - discrimination principle , ORG held that it was manifestly ill - founded .

This statute governs the expedited expropriation procedure , which permits authorities to start building before expropriation . Once a scheme has been declared to be in the public interest and the plans adopted , the authorities may make an expedited possession order , for a limited period not exceeding DATE , in respect of the land to be expropriated . The order will lapse if physical possession of the land is not taken within DATE after its issue . After the land has been possessed , a formal expropriation order must be made and compensation paid .

During DATE , a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order . The NORP courts were confronted with cases in which the landowner had de facto lost use of the land as it had been possessed and building works in the public interest had been undertaken . The question arose whether the mere fact that works had been carried out meant that the owner had also lost title to the land .

There was a substantial divergence in the decisions of ORG over the effects of carrying out building works in the public interest on land where possession had been taken unlawfully . Unlawful possession means possession that is unlawful from the start , in other words obtained without authority , or that is initially authorised but subsequently became unlawful , either because the authority is quashed or because possession continues beyond the authorised period without an expropriation order being made .

Under CARDINAL line of case - law , the owner of land that had been possessed by the authorities did not lose ownership after completion of the works in the public interest . However , he could not request reinstatement of the land ; his only remedy was to bring an action in damages for wrongful possession . No limitation period applied to such actions as the unlawful nature of the possession was continuing . The authorities could at any time issue a formal expropriation order . If they did so , the action in damages was transformed into a dispute over the compensation for expropriation , with damages for the loss of enjoyment of the land being due only for the period prior to the making of the expropriation order ( see , among other authorities , the judgments of ORG nos . CARDINAL of DATE ; CARDINAL of DATE ; and DATE and CARDINAL of DATE ) .

Under a second line , the landowner did not lose property in the land and could request its reinstatement if the authorities had acted other than in the public interest ( see , for example , ORG judgments nos . DATE and CARDINAL of DATE ) .

NORP Under a third line , an owner dispossessed by the authorities automatically lost title to the land as soon as it had been altered irreversibly , that is to say on completion of the works in the public interest . He was entitled to claim damages ( the sole authority is ORG judgment no . CARDINAL of DATE ) .

In a judgment of CARDINAL DATE , ORG , sitting as a full court , resolved the conflict between the case - law authorities and adopted the third solution . In so doing , it established the constructive - expropriation rule ( accessione invertita or occupazione acquisitiva ) . Under the rule , the public authorities acquire title to the land from the outset before formal expropriation if , after taking possession of the land and irrespective of whether such possession is lawful , the works in the public interest are performed . If , initially , the land is possessed without authority , the transfer of property takes place when the works in the public interest are completed . If the taking of possession was authorised from the outset , property is transferred on the expiry of the authorised period of possession . In the same judgment , ORG stated that , on a constructive expropriation , the owner is entitled to compensation in full as the acquisition of the land has taken place without title ( sine titulo ) . However , compensation is not paid automatically : the owner must lodge a claim for damages . In addition , the right to compensation is subject to a DATE limitation period that applies to actions in tort ; the starting - point is the date the land is irreversibly altered .

Initially , it was held that no limitation period applied , since possession of the land without title was a continuing unlawful act ( see paragraph CARDINAL above ) . In its judgment no . DATE , ORG stated that the right to compensation was subject to a DATE limitation period ( see paragraph CARDINAL above ) . Subsequently , ORG said that a DATE limitation period should apply ( judgments nos . DATE ) . On CARDINAL DATE the full court of ORG decided the issue finally , holding that the limitation period is DATE and starts to run from the date the land is irreversibly altered .

Recent developments in the case - law show that the mechanism whereby carrying out building works in the public interest operates to transfer property in the land to the authorities is subject to exceptions .

In its judgment no . CARDINAL of DATE , the PERSON stated that there was no constructive expropriation where resolutions of the authorities and an expedited possession order had been quashed by the administrative courts , as otherwise the judicial decision would be devoid of purpose .

In judgment no . DATE , ORG , sitting as a full court , said that the authorities did not acquire ownership of the land if their resolutions and the declaration that expropriation was in the public interest were deemed to have been null and void from the outset . In such cases , the owner retained title to the land and could claim restitutio in integrum . In the alternative , he could seek damages . The unlawful nature of the possession in such cases was continuing and no limitation period applied .

In judgment no . DATE , ORG , sitting as a full court , said that there was no transfer of property where the declaration that expropriation was in the public interest had been annulled by the administrative courts . In such cases , therefore , the constructive - expropriation rule did not apply . The owner , who retained ownership of the land , was entitled to claim restitutio in integrum . If he brought an action in damages , that entailed a waiver of his right to restitutio in integrum . The DATE prescription period started to run from DATE when the decision of the administrative court became final .

In judgment no . CARDINAL of DATE , ORG followed the decision of the full court and held that there was no transfer of property by constructive expropriation where the declaration that the building works were in the public interest was deemed to have been invalid from the outset .

In this judgment , ORG was called upon to decide firstly whether the constructive - expropriation rule was compatible with LAW . The court declared that question inadmissible on the ground that it had jurisdiction to examine statutory provisions only , not rules established by the courts . Secondly , it held that the application to an action for compensation of the DATE limitation period laid down by DATE of LAW for claims in tort was compatible with LAW . The fact that the authorities had become owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under LAW , since the public interest in the preservation of works for the public good outweighed the individual 's interest in the right of property .

Under ORG case - law on constructive expropriations , compensation in full , that is to say damages for the deprivation of the land , is due to the owner in consideration for the loss of ownership caused by the unlawful taking of possession .

The Finance Law of DATE ( LAW no . CARDINAL of DATE ) superseded that case - law by providing that the compensation payable on constructive expropriations could not exceed the amount due on formal expropriations . In judgment no . CARDINAL of DATE , ORG declared that provision unconstitutional .

Under Finance Law no . DATE , which amended the provision that had been declared unconstitutional , compensation in full can not be awarded for dispossessions effected before DATE . In such cases , compensation can not exceed such amount , plus PERCENT , but without applying the PERCENT reduction , as would have been payable on a formal expropriation ( CARDINAL of the sum of the market value plus the income from the land , PERCENT ) . In a judgment no . CARDINAL of DATE , ORG held that that provision was compatible with LAW . However , in the same decision , it said that compensation in full , up to the market value of the land , could be claimed where the dispossession and deprivation of the land were not in the public interest .

The Government maintained that the applicants no longer had an interest in pursuing the application and asked the ORG to dismiss it .

The Government said that CARDINAL parcels of land had been expropriated from the applicants by the PERSON authorities . The land forming the subject matter of the application covered QUANTITY m. and was entered on the cadastral register as parcel no . CARDINAL ; the land concerned by the other expropriation had a surface area of QUANTITY m. On DATE the applicants reached a settlement agreement with ORG at the end of the proceedings concerning that other parcel of land . The ORG maintained that the sum paid by the authorities pursuant to that agreement also included compensation for the loss of the CARDINAL sq . m. of land forming the subject matter of the application .

In support of their case , the Government referred to the recitals of the settlement agreement , in which it was stated that at the origin of the agreement was the taking of possession DATE with a view to building a covered market – of CARDINAL sq . m. of the PERSON and GPE estate , registered on the cadastral plan as folio no . CARDINAL , parcels nos . CARDINAL , CARDINAL and CARDINAL .

The applicants contested the ORG 's submission , arguing that the settlement agreement related only to the QUANTITY m. of land expropriated for the building of a market . They said that , along with other parcels , parcel no . CARDINAL had been included in the DATE order authorising possession of the QUANTITY m. of land by mistake , as the entire plot had already been used for the building of the school . That error had ORG consequently also appeared in the recitals to the settlement agreement . The applicants invited the ORG to examine side by side the settlement agreement and the report lodged on DATE by the expert appointed by ORG in connection with the dispute over the land intended for the building of a market . They said that that would enable the ORG to see that the settlement agreement did not relate to the CARDINAL sq . m. of land forming the subject matter of the application .

The ORG has examined the settlement agreement and the expert 's report of DATE .

On DATE report , the expert stated that the land originally belonging to the applicants could be divided into CARDINAL sections in the light of the changes that had been made :

( i ) a first section that had not been expropriated ;

( ii ) a second section of QUANTITY m. corresponding to parcel no . CARDINAL which had been used for a school ;

( iii ) a third section of QUANTITY m. corresponding to other parcels of land forming the subject matter of the litigation for which the expert had been appointed . Possession of that section had been taken on DATE , a market and a road had been built on it and gardens planted .

Although parcel no . CARDINAL is indeed referred to in the recitals to the settlement agreement , that same agreement also states that the compensation paid by the authorities relates to other parcels of land – all recorded on folio no . CARDINAL of the cadastral register – with a total surface - area of QUANTITY m.

Having perused those documents , the ORG considers that the Government have not shown that the amount paid to the applicants pursuant to the settlement agreement related to the land forming the subject matter of the application .

ORG Consequently , the ORG 's preliminary objection must be dismissed .

The applicants complained that they had been deprived of their land in circumstances that were incompatible with the requirements of LAW No . CARDINAL , which provides :

“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions . No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law .

The preceding provisions shall not , however , in any way impair the right of a ORG to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties . ”

The applicants asked the ORG to declare that the application of the constructive - expropriation rule in the instant case did not comply with the requirement of lawfulness .

They referred to the notion of a legal norm and observed that the constructive - expropriation rule was an anomaly in the NORP legal system . It was considered by the domestic courts as being an expression of the “ living law ” , yet did not have the same effects as statutory provisions as , firstly , it was not binding on the courts and , secondly , its constitutionality could not be reviewed . Even if they were to accept the idea that the rule constituted a legal norm , the applicants , referring to the ORG v. GPE case ( judgment of DATE , Series A no . CARDINAL-A ) , observed that it had to be accessible , its effects had to be foreseeable and it had to be compatible with the principle of the rule of law .

In that regard , the applicants maintained that the uncertainties and changes in the case - law to which the constructive - expropriation rule had given rise , combined with the way in which it had been applied in their case , amounted to a violation of the principle of the rule of law . In their submission , it had been impossible for them to foresee that their right of property would be considered by the courts to have been extinguished . Furthermore , by the time ORG established in DATE that the DATE limitation period had to apply , the applicant 's case had been pending for DATE . Moreover , ORG judgment of DATE , which finally resolved the issue of which limitation period should apply , was delivered when the applicants ' appeal on points of law was pending .

The applicants went on to observe that constructive expropriations were effected not after proceedings in due form but following the physical taking of possession by the authorities . The latter became owners of the land and thus extinguished the landowners ' right of property despite the unlawful nature of their conduct . The applicants pointed out that the onus was on the landowner if he wished to obtain compensation , as he was required to make a claim for damages . Moreover , a ceiling had been placed on the measure of damages by the finance laws , such that landowners could no longer obtain reparation in full for the loss sustained .

Referring to the ORG 's report , the applicants also argued that the deprivation of their land contravened the principle that a fair balance should be struck .

The applicants concluded by requesting the ORG to find that there had been a violation of LAW No . CARDINAL .

The Government reiterated their observations before the Commission in which , referring to ORG judgment no . CARDINAL of CARDINAL , they had maintained that the situation complained of by the applicants was compatible with LAW No . CARDINAL .

In their memorials lodged with ORG , the Government observed that constructive expropriation was provided for “ by law ” , even though not set out in any statutory provision . As a principle established by the case- law , the constructive - expropriation rule formed part of NORP positive law but , unlike statutory provisions , there was no need for it to come into force formally as it was formulated over the course of time and the courts were not bound to apply it . The Government contested the ORG 's view that the constructive - expropriation rule was not in existence at the time possession of the land was taken , that is to say before ORG judgment no . DATE . The Government maintained that the rule had , at the material time , already been established by the courts .

The ORG maintained that CARDINAL conditions had to be satisfied for a transfer of property by constructive expropriation to be lawful : the works had genuinely to be in the public interest ; the landowner had to have access to the courts for review of the public - interest issue ; and compensation had to be paid for the deprivation of the property .

The Government noted that the applicants had not suggested that either of the first CARDINAL conditions had not been satisfied . As to the third , the ORG maintained that the applicants had received compensation as part of the settlement agreement concerning the expropriation of another parcel of land ( see paragraphs CARDINAL - CARDINAL above ) . The Government consequently considered that the applicants were seeking to obtain unjust enrichment through the ORG .

The Government concluded by asking the ORG to declare the application unfounded .

In its report , the ORG expressed the view that the applicants had been deprived of their land through the retrospective application of the constructive - expropriation rule and that their right to compensation had been declared time - barred as a result of the retrospective application of the relevant limitation period . Having found that no compensation had been paid to the applicants , it considered that that finding sufficed for it to conclude that there had been a violation of LAW No . CARDINAL .

The ORG reiterates that LAW No . CARDINAL contains CARDINAL distinct rules : “ the first rule , set out in the first sentence of the first paragraph , is of a general nature and enunciates the principle of the peaceful enjoyment of property ; the second rule , contained in the second sentence of the first paragraph , covers deprivation of possessions and subjects it to certain conditions ; the third rule , stated in the second paragraph , recognises that GPE are entitled , amongst other things , to control the use of property in accordance with the general interest ... The CARDINAL rules are not , however , ' distinct ' in the sense of being unconnected . The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule ” ( see , among other authorities , the PERSON and Others v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , pp . CARDINAL , § DATE , partly following the terms of the ORG 's analysis in the PERSON and PERSON v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ; see also the GPE v. GPE judgment of DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE , and GPE v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § DATE , ORG CARDINAL-II ) .

The ORG notes that it is common ground that there has been a deprivation of possessions .

NORP In order to determine whether there has been a deprivation of possessions within the meaning of the second rule , the ORG must not confine itself to examining whether there has been dispossession or formal expropriation , it must look behind the appearances and investigate the realities of the situation complained of . Since the ORG is intended to guarantee rights that are “ practical and effective ” , it has to be ascertained whether that situation amounted to a de facto expropriation ( see the GPE and PERSON judgment cited above , pp . DATE , § CARDINAL ) .

The ORG notes that in the present case ORG held , in a decision that was final and in which it applied the constructive - expropriation rule , that there had been a transfer of property in favour of ORG ; as a consequence of that decision the applicants were deprived of the possibility of obtaining damages . In those circumstances , the ORG finds that the effect of the judgment of ORG was to deprive the applicants of their possessions within the meaning of the second sentence of the first paragraph of LAW No . CARDINAL ( see ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-VII ) .

In order to be compatible with LAW No . CARDINAL , such an interference must be “ in the public interest ” , “ subject to the conditions provided for by law and by the general principles of international law ” and must strike a “ fair balance ” between the demands of the general interest of the community and the requirements of the protection of the individual 's fundamental rights ( see the PERSON and PERSON judgment cited above , p. CARDINAL , § CARDINAL ) . Furthermore , the issue of whether a fair balance has been struck “ becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary ” ( see PERSON cited above , § DATE , and ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-I ) . Accordingly , the ORG does not consider it appropriate to base its decision solely on the finding that the applicants received no compensation .

The ORG reiterates that the first and most important requirement of LAW No . CARDINAL is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful . The rule of law , CARDINAL of the fundamental principles of a democratic society , is inherent in all the Articles of the Convention ( see PERSON cited above , § DATE ) and entails a duty on the part of the ORG or other public authority to comply with judicial orders or decisions against it .

The ORG does not consider it necessary to decide in the abstract whether the role in the continental - law system of a rule , such as the constructive - expropriation rule , established by the courts is comparable to that of statutory provisions . However , it reiterates that the requirement of lawfulness means that rules of domestic law must be sufficiently accessible , precise and foreseeable ( see the PERSON v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , pp . CARDINAL , § DATE , and the PERSON and Others v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) .

In that connection , the ORG observes that the case - law on constructive expropriations has evolved in a way that has led to the rule being applied inconsistently ( see paragraphs CARDINAL above ) , a factor which could result in unforeseeable or arbitrary outcomes and deprive litigants of effective protection of their rights and which , as a consequence , is inconsistent with the requirement of lawfulness .

The ORG also notes that , under the rule established by ORG in its judgment no . DATE , every constructive expropriation follows the unlawful taking of possession of the land . The unlawfulness may exist at the outset , if the taking of possession is unauthorised , or arise subsequently , if the authorities remain in possession beyond the authorised period . The ORG has reservations as to the compatibility with the requirement of lawfulness of a mechanism which , generally , enables the authorities to benefit from an unlawful situation in which the landowner is presented with a fait accompli .

It notes , finally , that compensation for deprivation of property is not paid automatically by the authorities , but must be claimed by the landowner within DATE . That may prove to be inadequate protection .

DATE . In any event , the ORG is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the LAW .

In the instant case , the ORG notes that , pursuant to the constructive - expropriation rule , ORG held that the applicants had been deprived of their land from DATE . That transfer of property to the authorities therefore occurred during the period of possession without title ( sine titulo ) , automatically , following completion of the public works . ORG considers that that situation could not be regarded as “ foreseeable ” as it was only in the final decision , the judgment of ORG , that the constructive - expropriation rule could be regarded as being effectively applied . On that point , the ORG refers to the evolution of the case - law ( see paragraphs DATE above ) and to the fact that a case - law rule does not bind the courts as regards its application ( see paragraph CARDINAL above ) . The ORG consequently finds that the applicants did not become certain that they had been deprived of their land until DATE , when ORG judgment was lodged with the registry .

Secondly , the ORG observes that the situation in issue enabled the authorities to derive a benefit from taking possession of land which they had held without title since DATE .

Furthermore , the ORG notes that ORG applied the DATE limitation period from the date of completion of the works ( DATE ) . As a result , the applicants were denied the possibility that had , in principle , been available to them of obtaining damages .

The ORG considers that such interference can only be described as arbitrary and consequently is not compatible with LAW No . CARDINAL .

Accordingly , there has been a violation of LAW No . CARDINAL .

Article CARDINAL of the ORG provides :

“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”

The applicants claimed MONEY ( ITL ) for pecuniary damage – the value of the land as assessed in an expert 's report of DATE plus interest and index - linking from DATE . In the alternative , they sought ORG DATE the value of the land as assessed in an expert 's report of DATE plus interest and index - linking from DATE . The applicants stated that they would be willing to accept the conclusions of a further expert valuation if the ORG were minded to seek CARDINAL .

DATE . As regards non - pecuniary damage , the applicants claimed ORG CARDINAL each .

The applicants sought reimbursement of ORG CARDINAL for the costs incurred before the national courts and of ORG CARDINAL for the costs incurred in the proceedings before the ORG and the ORG .

The Government made no observations on that point .

The ORG considers that the issue of the application of Article CARDINAL is not ready for decision and should be reserved having regard to the possibility of an agreement between the respondent ORG and the applicants ( Rule CARDINAL § § CARDINAL and CARDINAL of the Rules of Court ) .


CASE OF YUSUPOVA AND ZAURBEKOV v. RUSSIA

Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);No violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

The first applicant was married to PERSON , born in DATE . They had CARDINAL sons – PERSON , born in DATE , GPE , born in DATE , GPE , born in DATE ( the second applicant ) , and ORG , born in DATE , and lived in GPE , GPE .

DATE and DATE PERSON worked as a crane operator at ORG ( временный отдел внутренних дел Октябрьского района г. Грозного , “ the Oktyabrskiy VOVD ” ) under a short term employment contract .

On DATE the Oktyabrskiy VOVD informed PERSON GPE that his contract could not be extended due to lack of funds and invited him to collect his salary DATE .

On DATE around TIME and the second applicant arrived at FAC . The former entered the premises of the PERSON to get his wages , while the latter waited in the car in front of a security barrier CARDINAL – QUANTITY from the main entrance .

After having waited for a while , the second applicant enquired twice about his father with the officers at the barrier , who told him to wait . TIME , when it got dark , the second applicant again enquired about his father and the police officers responded that there were “ no civilians left ” on the premises of the VOVD . The second applicant then returned home .

The applicants have had no news of ORG since .

NORP Since DATE the applicants have repeatedly applied in person and in writing to various public bodies , including the Oktyabrskiy VOVD , district and city military commander ’s offices , prosecutors at various levels , special police units in GPE ( отряды милиции особого назначения ) , ORG of ORG ( ORG по Чеченской PERSON службы безопасности , “ ORG of the ORG ” ) , local and regional administrative authorities and the Special Envoy of the NORP President for Rights and Freedoms in GPE ( ORG представитель PERSON по обеспечению прав и свобод человека и гражданина PERSON ) . In their letters to the authorities the applicants referred to the facts of their relative ’s disappearance and asked for assistance and details of an investigation . Most of these enquiries remained unanswered , save for formal responses by which the ORG requests were forwarded to various prosecutor ’s offices .

On DATE , in the morning , the applicants and other relatives visited the Oktyabrskiy VOVD and enquired about PERSON . The first applicant ’s sister - in - law and another relative were admitted onto the premises of the PERSON and talked to PERSON , the Head of the Oktyabrskiy VOVD . The latter said that he was unaware of ORG whereabouts , that there had been no grounds for his detention and that there was no such person among the detainees kept in LOC . He added that PERSON had left the LOC of the PERSON after he had received his salary .

The first applicant ’s sister - in - law also managed to look through an attendance register ( журнал регистрации посетителей ) in which she found an entry to the effect that PERSON had entered the building at TIME on DATE . There was no entry confirming that PERSON had ever left the Oktyabrskiy VOVD .

During DATE after PERSON disappearance the first applicant talked to several people who had allegedly seen her husband on the premises of FAC on DATE . In particular , the first applicant met a police officer PERSON , who told her that PERSON had assisted him in repair work DATE and had then gone to the accounting office to receive his salary , having promised to come back , but had never returned . The first applicant also talked to CARDINAL workers who told her that they had been engaged in repair work on the VOVD premises on DATE and had seen PERSON enter the ORG TIME , but had not seen him leave .

The first applicant talked to a representative of the military prosecutor of GPE who promised to find out whether her husband was being held at the military base of GPE . DATE the representative informed the first applicant that he had only been able to search for her spouse at the military units , and PERSON was not detained there . The official further stated that he had had no access to other branches of the armed forces and therefore had been unable to check at ORG ( ORG разведывательное управление ) , or the locations of a special fast deployment team ( специальный отряд быстрого реагирования ) and a special police unit .

According to the first applicant , while searching for her husband she had found out that a number of persons had been ill - treated by officers of FAC or had disappeared after having been detained there .

On DATE the Oktyabrskiy VOVD commenced an inquiry into PERSON disappearance .

On DATE the Oktyabrskiy VOVD decided to dispense with criminal proceedings in the absence of evidence that any crime had been committed against PERSON .

On DATE the ORG prosecutor ’s office ( прокуратура г. ORG ) quashed the above decision and opened criminal case no . DATE . In DATE the first applicant found out that this criminal case had been instituted in connection with her husband ’s murder .

According to the applicants , after the investigation had been opened the first applicant had regularly visited the PERSON prosecutor ’s office to enquire about the measures taken . In the applicants’ submission , PERSON , the Prosecutor of ORG , and PERSON , the investigator in charge , had told the first applicant to stay at home , as they themselves would visit her there . They had also promised to bring police dogs to search for her husband , but had never done so . In reply to the first applicant ’s request to have certain PERSON officers questioned before they left for their permanent place of residence in another region of GPE , PERSON had answered that it would be easier to interrogate the officers there .

On DATE , after their secondment had finished , PERSON and PERSON left GPE for their permanent place of residence .

By letters of CARDINAL and DATE the prosecutor ’s office of GPE ( прокуратура Чеченской республики , ) referred the first applicant ’s applications to the PERSON prosecutor ’s office .

On DATE ORG of the ORG informed the first applicant that their officers had not detained her husband and had no information about his whereabouts . The first applicant ’s application had been transmitted to the PERSON prosecutor ’s office .

At some point in DATE the first applicant received information to the effect that her husband had been kept at the military base of GPE . According to the first applicant , in response to her request to verify this information , PERSON . , the then investigator in charge , stated that he was “ afraid of going to PERSON , as he himself “ might disappear there ” .

On an unspecified date in DATE another investigator of the PERSON , PERSON . , told the first applicant that according to the information he had , PERSON was dead . He refused to provide any further explanation however .

On DATE ORG referred the first applicant ’s application to the military prosecutor of military unit DATE ( военная прокуратура DATE ) .

By a decision of DATE the first applicant was declared a victim in criminal case no . DATE . The applicant submitted a copy of this decision .

On DATE criminal case no . DATE was joined with CARDINAL other cases opened in connection with the disappearance of residents of PERSON at various times in DATE .

In a letter of DATE the prosecutor ’s office of GPE informed the first applicant that the criminal investigation into the murder of their relative had been instituted under LAW of LAW , as “ there [ was ] no such criminal offence as ‘ LAW in the NORP LAW ” and therefore criminal cases in connection with disappearances were , as a general rule , opened under the said Article .

In the applicants’ submission , the investigation into their relative ’s disappearance had been discontinued and resumed on several occasions . The respective decisions had never been served on any of them , and they had only been notified of them when the first applicant visited the PERSON prosecutor ’s office . According to the first applicant , in breach of superior ORG orders the investigating body had never interrogated the officers in charge of the Oktyabrskiy VOVD .

Referring to the information provided by ORG , the Government submitted that , on DATE , criminal proceedings under LAW of LAW ( murder ) had been instituted in connection with PERSON disappearance . The preliminary investigation in this case had been suspended due to a failure to establish those responsible on DATE , CARDINAL DATE , DATE , DATE and DATE , DATE and DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL DATE and DATE , and then resumed on CARDINAL DATE , DATE , DATE , DATE and DATE , CARDINAL DATE and DATE , DATE , DATE , DATE and DATE , DATE , DATE and DATE respectively . On the latest occasion the investigation had been stayed on DATE and then resumed on DATE . According to the ORG , the case was now being investigated by the PERSON prosecutor ’s office under the supervision of ORG .

The Government further submitted that the first applicant had been questioned on DATE , DATE and DATE . According to them , there was no evidence in the transcripts of the first applicant ’s interview that she had ever made statements to the effect that her husband had been kept at the military base in GPE . They further submitted that the first applicant had been granted the status of victim on DATE . The authorities had also questioned the second applicant on DATE and his sister on an unspecified date .

In the ORG ’s submission , in DATE the authorities had questioned over CARDINAL officers of the law - enforcement agencies of ORG who at the relevant time had been serving at FAC . The Government disclosed the names of some of the witnesses and indicated some of the dates on which witness statements had been obtained , but did not produce copies of transcripts of witness interviews . According to the Government , the officers had been shown PERSON photograph for identification . They had stated that the applicants’ relative had never been held in the temporary isolation unit of ORG . Officer PERSON , who at the material time had been the acting head of LOC , had made positive reference to the applicants’ relative and stated that during the search the investigators had obtained information to the effect that PERSON could have been killed by members of illegal armed groups for refusing to collaborate with them . Officer PERSON had stated that on DATE of PERSON disappearance he had seen the latter walking outside the territory of LOC in the direction of a local market . The Government also submitted that the investigating authorities had twice questioned officer NORP , who had taken the decision of CARDINAL DATE to dispense with criminal proceedings in connection with ORG disappearance ( see paragraph CARDINAL above ) , but did not specify which statements officer NORP had made .

According to the ORG , the investigating authorities had also seized and examined documents from the Oktyabrskiy VOVD pertaining to the relevant period , in particular financial documents concerning payments by the Oktyabrskiy VOVD to PERSON , and registers of persons held in its temporary isolation unit in DATE . The Government did not submit copies of these documents or apprise ORG of their contents .

In the ORG ’s submission , the investigating authorities had also sent a number of queries to the law - enforcement agencies of the various regions of GPE . They had obtained information to the effect that no criminal proceedings had ever been brought , nor had any special measures ever been taken , against PERSON and that he had never been arrested or detained by any of them . The authorities had also taken a number of steps aiming at establishing ORG whereabouts .

In DATE , when the application was communicated to them , the Government were invited to produce a copy of the investigation file in criminal case no . DATE opened in connection with the disappearance of the applicants’ relative . Relying on information obtained from ORG , the ORG replied that the investigation was in progress and that the disclosure of the documents would be in violation of LAW since the file contained information of a military nature and personal data concerning the witnesses . At the same time , the Government suggested that a ORG delegation could have access to the file at the place where the preliminary investigation was being conducted , with the exception of “ the documents [ disclosing military information and personal data concerning the witnesses ] , and without the right to make copies of the case file and to transmit it to others ” . In DATE the ORG reiterated its request and suggested that Rule CARDINAL § CARDINAL of ORG be applied . In reply , the Government again refused to produce the investigation file for the aforementioned reasons .

On DATE the application was declared partly admissible . At that stage the ORG once again invited the ORG to submit the investigation file and to provide information concerning the progress of the investigation . In DATE the Government informed ORG latest dates on which the investigation had been suspended and reopened and produced a copy of the decision of DATE by which the investigation had been resumed . PERSON of GPE , which had been staffed with police personnel of GPE . The decisions went on to say that on DATE PERSON had arrived , along with the second applicant , at FAC for his wages and “ entered the territory of the Oktyabrskiy VOVD unimpeded , following which he did not return , that is to say , went missing ” .

The Government did not furnish the ORG with any other documents from the case file .

For a summary of the relevant domestic law see ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .