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

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

On DATE the Achille Lauro , an NORP cruise liner , was attacked by a NORP terrorist commando . The passengers were held hostage for TIME and CARDINAL of them was killed .

Suspected of being one of the organisers of the attack , the applicant was charged with forgery , handling stolen goods , unlawful possession of a firearm , kidnapping , murder and assault . He and CARDINAL other defendants were committed to stand trial in ORG .

He was not officially informed of the criminal proceedings against him because the authorities were unable to trace him at the time of the trial . In his observations to the ORG , the applicant alleged that he had left the Achille Lauro before the attack by the commando and had stayed in GPE . The NORP authorities declared him a “ fugitive ” ( latitante ) and assigned a lawyer to represent him . He was tried in his absence .

In a judgment of DATE , the text of which was lodged with the registry on DATE , ORG found the applicant guilty of handling stolen goods , forgery and unlawful possession of a firearm . It gave him a prison sentence of DATE and imposed a MONEY fine . It acquitted him on the charges of kidnapping , murder and assault . It found , inter alia , that it had not been proved beyond all reasonable doubt that the applicant knew that the commando intended to hijack the vessel and kidnap the passengers .

On DATE the Genoa public prosecutor ’s office appealed against , inter alia , the applicant ’s acquittal on some of the charges . It argued that , as a senior member of the terrorist organisation behind the attack , the applicant ’s role could not have been confined to providing logistical support .

In a judgment of CARDINAL DATE , the text of which was lodged with the registry on DATE , ORG granted the appeal and sentenced the applicant to life imprisonment .

On DATE the judgment of CARDINAL DATE became final as the lawyer assigned to represent the applicant had not lodged an appeal with ORG .

On DATE ORG issued a warrant requiring the applicant ’s committal to serve his sentence . The document , which was drafted in NORP , stated that ORG judgment of CARDINAL DATE sentencing the applicant to life imprisonment was unappealable . It then set out the operative provisions of the judgment and , in particular , the legal classification in law of the offences of which the applicant had been found guilty , with a reference to the relevant provisions of LAW and special legislation that was applicable . ORG instructed all law - enforcement personnel to arrest the applicant . Since the applicant was not represented , ORG assigned a lawyer to his case . A copy of the committal warrant was served on him .

In the meantime , on DATE , the applicant had been arrested in GPE . On DATE he was extradited to GPE . He was taken to the NORP police headquarters ( questura ) , where he was served with a copy of the committal warrant of DATE . An interpreter translated it into LANGUAGE for him orally . The applicant and the interpreter signed a record of the proceedings at the police headquarters .

On DATE the applicant lodged an application to have the committal warrant set aside . He alleged that it had been drafted in NORP and that he had not been provided with a written translation into LANGUAGE , in breach of LAW ( a ) of the LAW , domestic law and the case - law of ORG and ORG . He stressed that , had he understood the document that had been served on him , he would definitely have taken the necessary steps to lodge an application for leave to appeal out of time under LAW within the statutory DATE time - limit . He would thereby have gained additional time in which to appeal to ORG and an opportunity to answer the charges that had been preferred against him .

ORG dismissed his application in an order of DATE . It observed that LAW provided : “ A person charged with a criminal offence who does not speak NORP is entitled to have the free assistance of an interpreter in order to understand the charge ... and the procedural steps to which he or she is a party ... ” In its judgment no . CARDINAL of DATE , ORG had held that that provision had to be construed broadly , that is to say as applying in all cases in which , without the assistance of an interpreter , a foreign defendant ’s right to take part in his or her trial would be compromised . However , the view expressed by ORG in its case - law was that neither the LAW nor LAW made it obligatory to provide a written translation of every document that was served on a foreign defendant . In the instant case , the committal warrant had been translated orally by an interpreter when it was served , and that was a sufficient basis for concluding that the applicant had understood its content .

The applicant appealed to ORG , arguing that a written translation should have been supplied in his case , added to which the record drawn up at the police headquarters did not indicate the interpreter ’s identity . It merely contained the signature of an unidentified person at the foot of the page .

In a judgment of DATE , which was lodged with the registry on DATE , ORG found that ORG had dealt with all the issues logically and correctly and dismissed the applicant ’s appeal .

The relevant passages from LAW and CARDINAL of LAW provide :

“ A person convicted in absentia ... may apply for leave to appeal out of time against the judgment if he is able to prove that he was not effectively notified [ of the judgment ] ... [ and ] on condition that there has been no negligence on his part or , if the judgment delivered in absentia has been served ... on his lawyer ... , that he has not deliberately refused to apprise himself of the steps taken in the proceedings .

An application for leave to appeal out of time must be lodged within DATE of the date ... on which the accused learned [ of the judgment ] , failing which it shall be inadmissible . ”


CASE OF CORDOVA v. ITALY (No. 2) [Extracts]

Violation of Art. 6-1;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

In DATE he worked as a prosecutor at the GPE public prosecutor 's office .

At an election meeting in GPE on DATE , Mr PERSON , a member of the NORP parliament , made the following speech :

“ I had heard of GPE because of the misdeeds of a prosecutor called GPE , who gave it its only claim to fame with the inquisition he conducted and is still conducting there , while being defamatory of the LOC . I will pursue my fight against those judges who are in cahoots [ collusi ] with the [ political ] parties , who just want to wage political battles instead of defending justice . ... I remember something unacceptable ... : out of a delusion of omnipotence and wish to dominate , this prosecutor sent CARDINAL carabinieri ... to seize the membership lists of ORG . Bugger off , GPE , bugger off [ GPE , vaffanculo ] ! You should not tolerate a judge spending your money for his own greater glory , just to assert himself . ”

At a second meeting , which took place in GPE on DATE , Mr PERSON made another speech , the following extracts of which are relevant to the present case :

“ The first town in GPE to do so , GPE nominated a candidate for the ' Miss GPE ' competition , thus creating a contrast with that ugly mug GPE , who has brought a complaint against me ... You know there are some complaints I am proud of , but I simply said something about this Mr GPE which he knows is true , that he is nicknamed ' bulldog ' [ mastino ] ; and I said he looked so much like an actor that he could play both the policeman and the police dog , and he brought a complaint against me ; I thought he did n't have much of a sense of humour , but I 'm not worried about the complaint , because if someone is happy to be nicknamed ' bulldog ' , and he really looks a bit like one , it 's hard to understand why he gets annoyed over one of my jokes ; but , to show how the national legal service take advantage of their power , he has brought a complaint against me , and I 've even been sent for trial . ”

As he considered that his honour and his reputation had been attacked by Mr PERSON 's remarks , the applicant lodged a complaint for aggravated defamation .

By an order of DATE , the NORP public prosecutor 's office committed Mr PERSON for trial before GPE and set the hearing date for DATE . On the latter date the applicant joined the proceedings as a civil party .

In a judgment dated DATE , the text of which was lodged with the registry on DATE , ORG gave Mr PERSON a suspended sentence of DATE imprisonment , and ordered him to compensate the applicant for the damage suffered , with quantum to be determined at a civil trial . It also awarded the applicant an immediate payment of MONEY ( MONEY ) to be offset against the total award of damages .

ORG began by stating that it had not considered it necessary to stay the proceedings in order to seek the opinion of ORG . It was clear simply on reading the charges that the remarks in issue had not been made in the exercise of parliamentary functions ; they were therefore not protected by the constitutional safeguard of parliamentary immunity ( Article CARDINAL § CARDINAL of the LAW ) . In relation to the merits of the case , ORG observed that , leaving aside the plainly vulgar and insulting expressions ( the word “ vaffanculo ” in particular ) , Mr PERSON 's allegations tended to depict the applicant as a self - regarding prosecutor who used his office and public money exclusively in pursuit of his own greater glory , and who did not serve the interests of justice but those of certain political parties . In the circumstances , there could be no doubt that Mr PERSON 's allegations were defamatory . Although , like any other citizen , he was entitled to criticise a member of the national legal service , he should do so in polite terms and refer to objective and precise facts , which he had not done . On the contrary , Mr PERSON had started a personal quarrel by alleging , in an entirely unspecific and unjustified manner , that the applicant had behaved unethically .

Mr PERSON appealed against that judgment . He applied for the proceedings to be stayed and the file to be remitted to ORG . That application was founded on LAW no . DATE ( as then in force ) , under which if a court rejects a defence based on the applicability of Article CARDINAL § CARDINAL of the LAW pleaded by CARDINAL of the parties , it is required immediately to forward a copy of the file to the legislative chamber to which the parliamentarian belongs . Once the file has been forwarded the proceedings are thereby stayed until the legislative chamber concerned has debated the issue . Such a stay may on no account last for more than a total of CARDINAL .

By a judgment of DATE , the GPE ORG upheld the first - instance decision . In relation to the application for a stay , it observed that ORG had already remitted the file to ORG , which had thus had an opportunity to debate the question of the applicability of Article CARDINAL § CARDINAL of the LAW . Moreover , the statutory time - limit of CARDINAL had long since expired .

Mr PERSON appealed on points of law .

By an order of DATE , ORG stayed the proceedings and ordered the file to be remitted to ORG . The question was first examined by ORG ( ORG le autorizzazioni a procedere ) , which proposed a finding that the facts on the basis of which Mr PERSON had been tried did not concern opinions expressed in the exercise of his functions , and that LAW was therefore not applicable .

On DATE , after a debate on the issue , ORG in plenary session rejected ORG proposal by CARDINAL votes to CARDINAL , with CARDINAL abstentions .

In a written submission dated CARDINAL DATE , the applicant , considering that the decision of ORG had wrongly encroached on the jurisdiction of the courts , requested ORG to raise a conflict of ORG powers before ORG .

By a judgment of CARDINAL DATE , the text of which was lodged with the registry on DATE , ORG quashed the judgments of the Reggio di ORG and ORG , declaring them null and void on the ground that the accused had been acting in the exercise of his parliamentary functions .

ORG observed that CARDINAL interests enshrined in the LAW were in conflict : on the one hand , the autonomy and independence of ORG , and , on the other , the right of all citizens to ask the courts to uphold their right to have their reputation protected . A resolution by which a legislative chamber recognised that a certain act or statement was covered by LAW halted all criminal , civil or administrative proceedings against the parliamentarian responsible for that act or statement , and therefore resulted in the first interest prevailing over the second . Such resolutions could not be quashed by the ordinary courts . However , the courts could raise a conflict of ORG powers before ORG if they considered that , in the particular circumstances of a given case , ORG had wrongly exercised its powers , arbitrarily encroaching on and restricting the institutional jurisdiction of the courts .

In the opinion of ORG , the resolution of ORG of DATE had been neither arbitrary nor manifestly unreasonable . Although it had widened the protection afforded by LAW to cover views expressed outside the ambit of parliamentary activities in the strict sense , a broad interpretation of the concept of “ parliamentary functions ” encompassing all politically inspired acts , even those occurring outside ORG , had often been adopted in the past , and was not per se manifestly contrary to the spirit of the LAW . ORG had thus been entitled to opt for such an interpretation without thereby exceeding its powers . Accordingly , ORG considered it unnecessary to raise a conflict of powers before ORG and quashed Mr PERSON 's conviction .

... [ The relevant domestic law and practice are set out in GPE v. GPE ( no . CARDINAL ) , also reported in this volume ]


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

On DATE the applicant ’s employer sent him a notice of termination of his employment with immediate effect for an alleged serious breach of work discipline .

On DATE the applicant challenged his dismissal before the Košice II District Court ( Okresný súd ) .

On DATE ORG decided the case and on DATE ORG ( PERSON súd ) quashed its judgment on appeal . The case was remitted to ORG for reexamination .

On DATE ORG decided the case again and on DATE ORG again quashed its judgment on appeal . It was held that ORG had failed to establish the relevant facts adequately and that its conclusions were therefore premature . The case was remitted to it for reexamination .

On DATE ORG judge in charge of the lawsuit requested that ORG remove her from the case as she felt biased as a result of the applicant ’s written submission of DATE in which he had expressed doubts as to her impartiality in a gross and offensive manner .

On DATE ORG disqualified the above ORG judge from dealing with the case and on DATE it was assigned to a new judge . As the second judge later ceased to be a judge , on DATE the case was assigned to a third judge .

On DATE the applicant extended his action by claiming also compensation in respect of wages lost as a consequence of his dismissal .

On DATE ORG ruled that the applicant ’s claim for lost wages necessitated the taking of further evidence and ruled that it would be determined in a separate set of proceedings which was later opened under a new file number ( see below ) . At the same time , ORG ruled that the termination of the applicant ’s employment was void .

On DATE ORG upheld the judgment of DATE on the defendant ’s appeal . No further appeal was available and the ruling concerning the validity of the applicant ’s dismissal became final and binding on DATE .

In the above part of the proceedings ORG held CARDINAL hearings whereas ORG held CARDINAL .

On DATE the applicant supplemented his claim for lost wages .

ORG heard the case on DATE and DATE . Following the latter hearing , on DATE , it dismissed the claim .

On DATE the applicant challenged the judgment of DATE by an appeal which is still pending .

On DATE the applicant lodged a complaint about the length of his proceedings with ORG ( Ústavný súd ) under LAW , as in force from DATE . He sought an order that ORG proceed with his action and pay him CARDINAL NORP korunas ( SKK ) by way of just satisfaction in respect of his nonpecuniary damage .

On DATE ORG declared the complaint admissible .

On DATE ORG found that in the proceedings concerning the validity of the applicant ’s dismissal ORG had violated his right under LAW to a hearing “ without unjustified delay ” , and his right under LAW to a hearing “ within a reasonable time ” . It found that the subjectmatter of the proceedings was not of a particular complexity ; that the applicant ’s conduct had been active and cooperative ; and that there was an unjustified period of inactivity on the part of ORG from DATE to DATE . ORG ordered that ORG proceed with the matter without delays and pay the applicant LAW by way of just satisfaction for his nonpecuniary damage only and that it did not have the function of affording redress in respect of possible pecuniary damage .

On DATE the applicant lodged a fresh constitutional complaint . He completed it on CARDINAL DATE in that he contested unjustified delays in the proceedings concerning the validity of the termination of his employment and the lost wages and claimed SKK CARDINAL in compensation for his nonpecuniary damage .

On DATE ORG declared the complaint admissible , having interpreted it as being aimed at the part of the proceedings after DATE , which concerned the claim for lost wages .

On DATE ORG found that in the given part of the proceedings ORG had violated the applicant ’s right to a hearing “ without unjustified delay ” and “ within a reasonable time ” . ORG ordered that ORG proceed with the matter without delays and awarded the applicant LAW in just satisfaction for his nonpecuniary damage . The applicant was also awarded the reimbursement of his legal costs .

In ORG view the matter was not legally or factually complex and no delays were imputable to the applicant . However , ORG was inactive without any justification DATE and DATE .


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

The applicant , Mr GPE , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by Mr Š. ORG , a lawyer practising in PERSON . The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE and DATE , respectively , the applicant was charged with the illtreatment and rape of his wife ( Articles CARDINAL and CARDINAL of LAW ) .

On DATE the applicant was indicted before ORG to stand trial on the above charges .

On DATE ORG found the applicant guilty of violence and rape ( ORG CARDINALa and CARDINAL of LAW ) and sentenced him to DATE and CARDINAL months’ imprisonment .

On DATE the ORG quashed the judgment on appeal and remitted the case to ORG for the taking of further evidence and reexamination .

Following the entry into force on DATE of the new Criminal Code , the offences of which the applicant was accused have been categorised as “ crimes ” .

The ORG has no information about the further course of the criminal proceedings .

On DATE the applicant was arrested on the above ill - treatment charge .

On DATE ORG in PERSON remanded the applicant in detention on the grounds that there was a risk that he might collude and continue to engage in criminal activities within the meaning of LAW § CARDINAL ( b ) and ( c ) of LAW of DATE ( “ the DATE ORG ” ) . Under that Code , the absolute maximum duration of detention , including both in the pre - trial phase of proceedings ( prior to the filing of the bill of indictment ) and during the trial ( after the bill of indictment was lodged ) , was DATE ( LAW ) . There was no separate time - limit for the duration of detention during the trial alone .

On DATE ORG found that the ground for detaining the applicant under LAW § CARDINAL ( b ) of the DATE ORG ( risk of collusion ) no longer applied .

On DATE ORG authorised the extension of the applicant ’s detention until DATE . It observed that on DATE a new Code of Criminal Procedure ( “ the DATE ORG ” ) had entered into force , which had entirely replaced the previous one . The new Code set new time - limits for the maximum duration of detention as a whole ( LAW ) , and also for detention during the trial ( LAW ) . However , criminal trials where the bill of indictment had been filed prior to DATE and proceedings concerning detention in such trials were to continue to be governed by DATE ORG ( LAW , CARDINAL and CARDINAL ) . ORG observed that in the applicant ’s case the bill of indictment had been filed on DATE and that , consequently , the DATE ORG applied . It held that the offence of which the applicant had been accused fell within the category of “ extremely serious crimes ” . Detention in connection with such offences could potentially last as long as DATE . The applicant ’s detention during trial could last up to CARDINAL of this period , that is to say until DATE .

On DATE a different bench of ORG again authorised the extension of the applicant ’s detention , until DATE . Relying on LAW ORG , the court held that the applicant ’s case was to be examined under the rules of the DATE ORG and found that the conditions for extending his detention under LAW were met .

On DATE ORG informed the applicant of the presiding judge ’s request that his detention be prolonged . The applicant was invited to comment on the request within DATE .

In a letter of DATE , delivered on DATE , the applicant asked for leave to consult the file prior to submitting his comments . In his letter of DATE , delivered on DATE , the applicant quoted the relevant constitutional and international legal provisions and objected that he had been detained after indictment for longer than the time permitted under LAW and DATE ORG and that , consequently , his continued detention was discriminatory , unlawful and unconstitutional . He also stated that he would submit further comments after he had consulted the file .

On DATE ORG sent ORG a request for a further extension of the applicant ’s detention . It transmitted to ORG the above - mentioned letters from the applicant on DATE .

In the meantime , on DATE , ORG had authorised the extension of the applicant ’s detention until DATE . Referring to LAW and CARDINAL of the DATE ORG , it determined the matter under DATE ORG and found that the conditions in LAW for extending detention were met . Lastly , ORG pointed out that on DATE the applicant would have been detained for DATE and that criminal matters involving detention should be dealt with as fast as possible .

On DATE ORG decided not to authorise the applicant ’s detention any further on the ground that it was no longer justified . On DATE the applicant was released .

On DATE and DATE the applicant applied for release .

ORG dismissed the applications on DATE .

On DATE the applicant lodged a complaint against that decision . ORG submitted the file to ORG on DATE .

On DATE ORG dismissed the applicant ’s complaint . The file was returned to ORG on DATE . ORG decision was served on the applicant and his counsel on CARDINAL and DATE respectively .

On DATE the applicant complained to ORG about delays in the proceedings concerning his applications for release of CARDINAL DATE and DATE . He relied on LAW and CARDINAL of LAW and LAW .

On DATE ORG declared admissible the complaint about delays in the proceedings before ORG . It found no unjustified delays in the proceedings before ORG .

On DATE the applicant complained under LAW and LAW CARDINAL § CARDINAL of the LAW that his procedural rights had been disregarded by ORG and by ORG in the proceedings leading to the latter ’s decision of DATE to extend his detention .

On DATE ORG declared admissible the complaint about the conduct of ORG . The decision stated that the latter was under an obligation to redress any shortcomings which might have occurred as a result of ORG conduct .

In a different decision of CARDINAL DATE ORG joined the proceedings concerning the applicant ’s above CARDINAL complaints as a single set .

On DATE the ORG delivered a judgment . It found that ORG had violated the applicant ’s rights under LAW and CARDINAL of LAW and LAW as a result of the protracted length of the proceedings concerning the applications for release filed on DATE and DATE . The overall period of DATE during which ORG had dealt with the request for release was unacceptably long . ORG awarded the applicant CARDINAL NORP korunas ( SKK ) as just satisfaction .

In the judgment ORG further held that ORG had infringed LAW and LAW and LAW in the proceedings leading to its decision of DATE . In particular , the applicant had been prevented from having his arguments examined and he had not been able to protect his rights in an appropriate manner before the decision to extend his detention had been taken . ORG awarded the applicant LAW as just satisfaction on that account .

Pursuant to LAW , international treaties on human rights and fundamental freedoms which have been ratified and promulgated in the manner required by statute take precedence over law .

All human beings are equal in dignity and rights ( LAW ) regardless of sex , race , colour , language , faith , religion , political affiliation or conviction , national or social origin , nationality or ethnic origin , property , birth or any other status . No one can be discriminated against , favoured or disfavoured on any of these grounds ( LAW ) .

Statutory restrictions on fundamental rights and freedoms must apply equally in all cases meeting given conditions ( LAW ) .

Pursuant to LAW , liberty of person is guaranteed and no one is to be prosecuted or deprived of liberty except for reasons and in a manner provided for by law . LAW permits a person ’s detention exclusively on grounds and for a period defined by law and on the basis of a court ’s decision .

Article CARDINAL guarantees persons accused of an offence time and facilities to prepare their defence and the right to defend themselves either in person or through counsel .

Under LAW , criminal liability for an act is assessed and the sentence is imposed pursuant to the law in force at the time when the offence was committed . PERSON enacted subsequently is to be applied where it is more favourable to the perpetrator .

In case no . III . ÚS DATE ORG addressed a detained person ’s complaint under , inter alia , LAW ) of LAW . The plaintiff challenged a ORG decision of DATE ( case no . CARDINAL Toš CARDINAL/CARDINAL ) , which had concluded that : ( i ) detained persons who had been indicted prior to the entry into force of DATE ORG were not entitled to have the duration of their detention as a whole or their detention during trial governed by the provisions of the DATE ORG ; and ( ii ) the detention during trial of such persons in the period subsequent to DATE could not exceed the period for which the DATE ORG provided in LAW . ORG decision indicated , among other things , that the principle that the accused should benefit from more lenient subsequent legislation applied , in accordance with LAW , exclusively in the sphere of substantive criminal law .

ORG dismissed the complaint on CARDINAL DATE . It found that ORG above interpretation and application of the relevant provisions of the CARDINAL ORG were in conformity with the LAW and the LAW .

Under DATE ORG , detention on remand was governed by the provisions of Articles CARDINAL et seq . A person charged with a criminal offence could be detained , inter alia , where there were reasonable grounds for believing that he or she would influence the witnesses or the co - accused or otherwise hamper the investigation ( LAW ( b ) ) or continue criminal activities , complete an attempted offence or commit an offence which he or she had prepared or threatened to commit ( LAW ( c ) ) .

The duration of detention was regulated by the provisions of Articles CARDINAL et seq . Detention on remand in the pre - trial phase of the proceedings and during the trial , taken together , could not exceed DATE . An extension could be authorised by ORG if it had been impossible to complete the proceedings earlier because of the complexity of the matter or for other important reasons and the release of the detainee would jeopardise the purpose of the proceedings . The total duration of the detention could not , however , exceed DATE or , in the case of offences qualified as extremely dangerous , DATE ( LAW ) .

The category of “ extremely dangerous offences ” was defined in LAW Law no . CARDINAL/CARDINAL Coll . , as amended ) and included rape .

The new Code of Criminal Procedure was enacted on DATE and its text was published in LAW . It entered into force on DATE . The duration of detention is regulated by ORG CARDINAL et seq .

The total duration of detention in the pre - trial phase of the proceedings and during the trial , taken together , can not exceed DATE where the case concerns a lesser crime ( prečin ) , DATE in the case of a crime ( zločin ) , and DATE in the case of an extremely serious crime ( obzvlášť závažný zločin ) ( LAW ) . Detention in the pre - trial phase of the proceedings and during the trial , taken separately , can last up to CARDINAL of the above periods ( Article CARDINAL § CARDINAL ) . As regards detention during the trial , the period is to be counted from the moment when the bill of indictment is filed ( Article CARDINAL § CARDINAL ) . If the detainee faces charges for more offences , the CARDINAL carrying the most severe potential penalty should be used as the basis for determining the maximum permissible duration of the detention ( Article CARDINAL § CARDINAL) .

The temporal application of DATE ORG is regulated by the provisions of Articles CARDINAL et seq . As a general rule , proceedings where the bill of indictment was filed prior to the entry into force of the DATE ORG should continue under DATE ORG ( LAW and CARDINAL ) . This includes proceedings in which the duration of and grounds for detention are examined ( LAW ) .

The provisions on the temporal application of the newly introduced DATE ORG initially gave rise to different interpretations by the benches of ORG . The criminal law section ( kolégium ) of ORG therefore adopted a standpoint indicating how LAW and LAW ORG should be interpreted ( case no . PERSON CARDINAL/CARDINAL , standpoint adopted on DATE and subsequently published in the Collection of standpoints of ORG and decisions of courts , no . CARDINAL/CARDINAL ) .

With reference to LAW , LAW and LAW , the criminal law section of ORG held that persons who had been indicted prior to the entry into force of the DATE ORG were not entitled to have the duration of their detention as a whole or the duration of their detention during trial governed by LAW and DATE ORG . LAW ORG clearly indicated that that had not been the intention of the legislature . That situation did not amount to unequal treatment as the persons concerned had been remanded in detention under a different legal regime , namely that governed by DATE ORG .

However , both categories of detained persons – those whose detention was governed by DATE ORG and those detained under the DATE CCP – should receive equal treatment as regards the duration of their detention during trial after the entry into force of the DATE ORG . In practical terms , the detention during trial of persons falling within the former category in the period after DATE should not last longer than CARDINAL , CARDINAL or DATE , depending on the nature of the offence in issue , as specified in LAW ORG . In that respect those persons were treated equally to the other category of detainees . For example , the detention during trial of persons who had been remanded and indicted , prior to DATE , for offences which the DATE LAW qualified as extremely serious crimes could not exceed DATE as from DATE . Detention of such persons after DATE was therefore not permissible .


CASE OF BENJAMIN AND WILSON v. THE UNITED KINGDOM

Ireneu Cabral Barreto;Nicolas Bratza;Scott Baker

The first applicant , Mr PERSON , was sentenced to life imprisonment for rape in DATE . His tariff period ( the minimum period of detention satisfying the requirements of retribution and deterrence ) was set at DATE and expired in DATE . His time in prison was characterised by periods of thought disorder , delusions and behavioural problems and the Secretary of ORG decided that he was in need of care and treatment in a secure hospital . In DATE , he was made the subject of a transfer direction and a restriction order under , respectively , sections CARDINAL and CARDINAL of LAW DATE ( LAW ) and transferred to ORG .

NORP In DATE , the Secretary of ORG decided , following consultation with the trial judge and the Lord Chief Justice , that the first applicant should be regarded as a “ technical lifer ” ( that is a person who was suffering from a mental disorder which influenced him to a significant extent at the time of the offence although the court had not made a hospital order on sentencing ) .

In DATE , the first applicant was transferred to ORG . On DATE , his case for discharge was considered by ORG which found that it was not satisfied that the first applicant did not any longer require treatment in a hospital for mental illness .

When his case was reviewed most recently , on DATE , the ORG recommended his discharge . The Secretary of ORG accepted the recommendation and the first applicant was discharged .

The second applicant , PERSON , was sentenced to life imprisonment for buggery of a young girl in DATE . The court had before it psychiatric evidence to the effect that he suffered from mental illness . Expert psychiatric evidence recommended that he should be made subject to a hospital order coupled with a restriction order without limit of time under sections CARDINAL and CARDINAL of ORG . Due to an absence of any beds in hospitals providing the level of security that the trial judge considered necessary , the judge felt unable to make the orders and passed , instead , a discretionary life sentence . The judge commented that the second applicant could later be transferred to hospital if his condition required it . His tariff period was set at DATE and expired in DATE .

In DATE , the second applicant was transferred to hospital under LAW DATE ( later replaced by LAW ) . In DATE , the applicant returned to prison and there were several other transfers to and from hospital in subsequent DATE . In DATE , the second applicant was transferred to ORG under sections CARDINAL and CARDINAL of the DATE Act . In DATE , following consultation with the trial judge and the Lord Chief Justice , the Secretary of ORG decided that the second applicant should be regarded as a “ technical lifer ” .

On DATE the ORG considered the second applicant 's case for discharge and found that they were not satisfied that he no longer required treatment in hospital for mental illness . His case was reviewed most recently on DATE when the ORG again did not recommend discharge .

By decisions of the Secretary of ORG for ORG communicated to the applicants in DATE and DATE , the Secretary of ORG refused to certify the applicants as eligible for review by the discretionary lifer panels empowered by LAW CARDINAL to order their release on licence . Leave to apply for judicial review of the decisions was granted on DATE .

On DATE ORG , granting the application , made a declaration that the Secretary of ORG 's policy not to certify discretionary life prisoners under paragraph CARDINAL of Schedule CARDINAL to the Criminal Justice Act DATE ( “ the DATE LAW ) on the ground that they had been transferred to hospital under LAW was unlawful ( [ DATE ] Q.B. CARDINAL ) .

On appeal , on DATE , ORG reversed ORG decision in part . It considered that , although the applicants were existing life prisoners within the meaning of the paragraph CARDINAL of Schedule CARDINAL , their discharge nevertheless remained subject to the procedure laid down in section CARDINAL of the CARDINAL Act . The rights to a hearing under the CARDINAL Act were conferred only on persons who were solely subject to that Act , and not on those who were mental patients ( [ DATE ] Q.B. CARDINAL ) .

The applicants were informed by letter of CARDINAL DATE that ORG had refused leave to appeal .

Under section CARDINAL of LAW DATE ( “ the DATE LAW ) , the Secretary of ORG may transfer a person serving a sentence of imprisonment to hospital if he is satisfied that the person is suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment , and that the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment , and , in the case of psychopathic disorder or mental impairment , that such treatment is likely to alleviate or prevent a deterioration of the condition . A transfer under LAW is called a “ transfer direction ” , and has the same effect as if a hospital order had been made under LAW ( CARDINAL ) of LAW ( that is , where a court convicts a person and , instead of sentencing him , orders his detention in hospital ) .

At the same time as making a transfer direction , the Secretary of ORG may also make a “ restriction direction ” under section CARDINAL of LAW . A restriction direction has the same effect as a restriction order made by a court under LAW of LAW on conviction , save that because the person was not given a hospital order by the court , the Secretary of ORG must consent to his discharge from hospital , as well as to the granting of leave of absence or transfer to another hospital .

A transferred life prisoner subject to restriction directions can be discharged from hospital in CARDINAL possible ways . Each can be initiated only by the Secretary of ORG .

( CARDINAL ) Section CARDINAL ( CARDINAL ) of the DATE Act gives the Secretary of ORG power , if he thinks fit , by warrant to discharge the patient either absolutely or subject to conditions .

( CARDINAL ) Section CARDINAL of the CARDINAL Act provides that where the Secretary of ORG is notified by the responsible medical officer , and other registered practitioner or ORG that the person no longer requires treatment in hospital for mental disorder , or that no effective treatment for the disorder can be given in the hospital , the Secretary of ORG may remit the person to a prison or to a different institution , or he may exercise any power of releasing or discharging him which would have been exercisable if he had been so remitted .

( CARDINAL ) Under LAW of LAW ,

“ ( CARDINAL ) Where an application to a ORG is made by a restricted patient who is subject to a restriction direction , or where the case of such a patient is referred to such a tribunal , the tribunal -

( a ) shall notify the Secretary of ORG whether , in their opinion , the patient would , if subject to a restriction order , be entitled to be absolutely or conditionally discharged under LAW ... ; and

( b ) if they notify him that the patient would be entitled to be conditionally discharged , may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital .

( CARDINAL ) NORP If in the case of a patient not falling within subsection ( CARDINAL ) below-

( a ) the tribunal notify the Secretary of ORG that the patient would be entitled to be absolutely or conditionally discharged ; and

( b ) within DATE beginning with the date of that notification the Secretary of ORG gives notice to the tribunal that the patient may be so discharged ,

the tribunal shall direct the absolute or , as the case may be , the conditional discharge of the patient .

( CARDINAL ) NORP If , in the case of a patient who is subject to a transfer direction under LAW above , the tribunal notify the Secretary of ORG that the patient would be entitled to be absolutely or conditionally discharged , the Secretary of ORG shall , unless the tribunal have made a recommendation under subsection ( ORG ) above , by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital , there to be dealt with as if he had not been so removed . ”

Section CARDINAL of the CARDINAL Act ( which relates to restricted patients under section CARDINAL of LAW ) provides that the tribunal must direct conditional discharge if they are satisfied that he is not suffering from mental illness or disorder of a type which makes it appropriate for the person to be detained in a hospital for medical treatment , or that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment , and they believe that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment .

In DATE , the ORG Secretary announced that life sentence prisoners who had been transferred to hospital would normally be discharged under section CARDINAL of the DATE Act rather than sections DATE ( CARDINAL ) or CARDINAL ( CARDINAL ) . This enables release on life licence with life - long control rather than the possibility of eventual absolute discharge by the Secretary of ORG . The policy was found to be lawful in the case of NORP v. Secretary of ORG for ORG ex parte PERSON ( DATE ) .

Section CARDINAL of LAW DATE provides that where a discretionary life prisoner has served his tariff ( that is , the “ punishment ” part of his sentence ) , and ORG is satisfied that it is no longer necessary for the protection of the public that he should be detained and has directed his release , it is the duty of the Secretary of ORG to release him . Under LAW CARDINAL , which is a transitional provision to the CARDINAL Act , the Secretary of ORG can apply the provisions of section CARDINAL to discretionary life prisoners who were sentenced before section CARDINAL of the DATE Act came into force on DATE by issuing a certificate that , if the DATE Act had been in force when the person was sentenced , section DATE would have been applied .

On DATE LAW came into force in GPE and GPE . Section CARDINAL provides as relevant :

“ ( CARDINAL ) It is unlawful for a public authority to act in a way which is incompatible with a Convention right .

( CARDINAL ) Sub - section ( CARDINAL ) does not apply to an act if –

( a ) as the result of CARDINAL or more provisions of primary legislation , the authority could not have acted differently ; or

( b ) in the case of CARDINAL or more provisions of , or made under , primary legislation which can not be read or given effect to in a way which is compatible with Convention rights , the authority was acting so as to give effect to or enforce those provisions . ”


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

The applicants , PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in PERSON , GPE . They are represented before the ORG by Mr T. Atanesyan , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , Representative of GPE at ORG .

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

The applicants jointly owned a house which measured QUANTITY m and was situated at CARDINAL FAC , GPE . It appears that they also enjoyed a right of lease in respect of the underlying plot of land .

On DATE the Government adopted Decree no . PERSON , approving the expropriation zones of the immovable property ( plots of land , buildings and constructions ) situated within the administrative boundaries of LOC of GPE to be taken for the needs of the State for the purpose of carrying out construction projects , covering a total area of QUANTITY m. FAC was listed as one of the streets falling within such expropriation zones .

On DATE the Government decided to contract out the construction of CARDINAL of the sections of FAC DATE which was to be renamed FAC – to a private company , ORG

On DATE PERSON and ORG signed an agreement which , inter alia , authorised the former to negotiate directly with the owners of the property subject to expropriation and , should such negotiations fail , to institute court proceedings on behalf of the ORG , seeking forced expropriation of such property .

It appears that ORG unsuccessfully attempted to organise a valuation of the applicants ' house in order to offer them compensation for the purpose of expropriation , since the applicants created obstacles .

On an unspecified date ORG instituted proceedings against the applicants on behalf of the ORG . Referring to , inter alia , Government Decree no . PERSON , the plaintiff sought to oblige them to allow a valuation of their house , to terminate their ownership of the house through payment of compensation based on the results of such valuation , and to have them evicted .

On an unspecified date the applicants lodged a counter - claim with the ORG and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան ) in which they contested the constitutionality of Government Decree no . CARDINAL It appears that this counter - claim was not admitted on the ground that ORG was not competent to decide upon the constitutionality of Government decrees . The applicants further requested the court to put into motion the procedure for testing the constitutionality of the above Decree , which was similarly rejected .

It appears that at some point the value of the applicants ' house was estimated at CARDINAL by a valuation company .

On DATE ORG granted the claim of ORG , terminating the applicants ' ownership in respect of the house , awarding them the NORP dram ( ORG ) equivalent of CARDINAL and ordering their eviction . The court based its findings on ORG and CARDINAL of LAW , while the amount of compensation was determined on the basis of the above valuation report .

On DATE the applicants lodged an appeal .

On DATE ORG ( ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան ) granted the claim of ORG on the same grounds as FAC .

On DATE the applicants lodged an appeal on points of law . In their appeal they argued , inter alia , that the deprivation of their property was unlawful and contravened LAW .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) dismissed the applicants ' appeal .

On DATE the relevant enforcement proceedings were instituted .

On DATE the applicants signed an agreement with ORG on termination of their ownership in respect of the immovable property situated on a plot of land to be taken for ORG needs and payment of compensation . According to this agreement , which was concluded for the purpose of implementation of construction projects envisaged by Government Decrees nos . PERSON and ORG , the applicants agreed to give up their ownership of the house and their lease of the underlying plot of land in favour of ORG for a compensation in the net total amount of AMD CARDINAL,CARDINAL,CARDINAL and to vacate the LOC by DATE .

For a summary of the relevant domestic provisions see the judgment in the case of PERSON and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

Section CARDINAL provides that the parties are entitled to reach a friendly settlement in the course of enforcement proceedings .

According to LAW § CARDINAL ( CARDINAL ) , the bailiff shall terminate the enforcement proceedings if the creditor and the debtor have reached a friendly settlement which has been approved by a court .


The applicant , Mr ORG , is a NORP national who was born in DATE and lives in GPE . The respondent Government are represented by Mr P. Laptev , Representative of GPE at ORG .

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

On DATE the applicant ’s mother , PERSON , offered her private house to ORG , a NORP era local self - government body , because the latter had earlier provided her with CARDINAL flats in town .

On DATE PERSON brought a civil action to have the offer declared null and void . She submitted that at the time of the transaction she had suffered from a mental disease and her perception of reality had been distorted . The applicant and the new owner of the house , PERSON , were joined to the proceedings as third parties .

According to the applicant , between that date and CARDINAL DATE , the ORG of GPE fixed CARDINAL hearings . On QUANTITY occasions the hearing was adjourned because the defendant and/or third persons failed to appear .

On DATE PERSON died , according to the information supplied by the Government . The proceedings were suspended pending the determination of her legal successor .

On DATE ( there is an apparent clerical error in the ORG ’s information where DATE is indicated as DATE ) the court designated the applicant as her legal successor in the proceedings . On DATE ( on DATE , according to the applicant ) it appointed an expert to carry out a post - mortem forensic examination of the mental state of the late PERSON .

On DATE the proceedings were resumed .

On DATE the Vyborgskiy District Court of GPE granted the action and held that the offer had been null and void . No appeal was lodged against the judgment and the court proceeded with the determination of the amount of damage .

On DATE the ORG of GPE quashed , by way of supervisory - review proceedings , the judgment of DATE and remitted the case for a new examination by a differently composed bench . The judgment was quashed because it had been made in the absence of the defendant .

The applicant complained to various authorities , including the Prosecutor General ’s office and GPE prosecutor ’s office , about unreasonable delays in the proceedings . On DATE the GPE prosecutor ’s office responded that prosecutors were not competent to review judges’ compliance with procedural time - limits .

On DATE the Convention entered into force in respect of GPE .

On DATE the presiding judge granted a request of a third party for additional property documents and the applicant ’s request for summoning a new witness . The proceedings were accordingly adjourned .

On DATE the hearing was adjourned as no response to the request for additional property documents had been received . The applicant , according to him , had a conflict with the presiding judge . He was fined for contempt of court .

On DATE the presiding judge was ill .

On DATE the defendant ’s representative and the third party ’s lawyer did not appear .

On DATE the defendant and the third party did not appear .

On DATE the hearing was adjourned . According to the applicant , it was so because the court registry had not prepared the case file . According to the Government , the presiding judge was ill .

On DATE the hearing was adjourned because the applicant had lodged a complaint with ORG office and the case - file was forwarded there .

On DATE the presiding judge was absent . The applicant alleges that she was attending a training course . The Government indicate that she was unavailable because she was taking part in the hearing of another case .

On DATE the court granted PERSON request and joined him to the proceedings as a co - defendant . The hearing was adjourned because PERSON E. ’s lawyer was absent for a valid reason .

On DATE the court granted PERSON request to carry out an expert evaluation of the enhancements to the contested house . The proceedings were suspended for the time - period required for the examination . According to the applicant , he challenged the presiding judge ; the challenge was dismissed .

On DATE GPE dismissed the applicant ’s complaint about the court ’s decision to order the expert evaluation .

On an unspecified date the expert evaluation was ready and the proceedings resumed .

On DATE the court joined the applicant ’s claims against Mr E. to the proceedings and severed the action of ORG against the applicant and his relatives into separate proceedings .

On DATE the parties were heard ; the proceedings were adjourned at the applicant ’s request .

On DATE the Vyborgskiy ORG of GPE dismissed the applicant ’s action and confirmed the validity of the offer made by PERSON in DATE .

On DATE ORG , on the applicant ’s appeal , upheld the judgment of DATE .

LAW DATE ( in force at the material time ) provided that civil cases were to be prepared for a hearing DATE after the action was submitted to the court . In exceptional cases , this period could be extended for DATE . Civil cases were to be examined DATE after the preparation for the hearing was completed .


The applicant [ Mr PERSON ] is a NORP national who was born in DATE and lives in GPE ( GPE ) . He was represented before the ORG by PERSON , of ORG .

summarised as follows .

DATE the applicant was a judge in the former GPE ( GPE ) and , in particular , President of ORG ( Vorsitzender des Strafsenats des Bezirksgerichts ) of GPE from DATE .

In a decision of DATE ORG of the former GPE allowed him to be admitted as a member of the Bar from CARDINAL DATE .

In a decision of DATE ORG disbarred him under section CARDINAL ) of the DATE Act on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge ( Gesetz zur Prüfung von Rechtsanwaltszulassungen , ORG and ORG ehrenamtlicher Richter — “ the ORG ” — see “ Relevant domestic law ” below ) on the ground that he had violated the principles of humanity and the rule of law ( da er gegen Grundsätze der PERSON hat ) .

ORG accused him , in particular , of having in QUANTITY cases sentenced to DATE imprisonment persons accused of having merely expressed the wish to leave the former GPE to institutions and organisations of the ORG ( GPE ) , such as the ORG ’s ORG , ORG and a NORP second channel ( ZDF ) television programme .

ORG also accused him of having imposed a sentence of DATE and CARDINAL months’ imprisonment for aiding illegal border - crossing ( PERSON ) and CARDINAL of DATE and DATE for incitement to subversion ( staatsfeindliche PERSON ) .

In a judgment of CARDINAL DATE ORG ( Landgericht ) acquitted the applicant of the charge of administering justice perversely ( PERSON ) .

In a decision of DATE ORG Special Section for Matters relating to Lawyers ( ORG ) upheld the applicant ’s disbarment .

In a decision of DATE ORG Special Section for Matters relating to Lawyers ( ORG für ORG ) dismissed an appeal by the applicant .

In the opinion of ORG , there was a serious violation ( beachtlicher ORG ) of section CARDINAL(CARDINAL ) of the LAW mentioned above where a lawyer , in his previous duties as a judge , had adopted an extreme construction ( bei exzessiver Auslegung und Interpretation ) of the relevant provisions of the former GPE ’s criminal code or the code of criminal procedure to the disadvantage of an accused or had started a prosecution showing contempt for human beings ( menschenverachtende GPE ) even though in the eyes of the law his conduct had not been so culpable as to constitute perverse administration of justice ( GPE ) .

ORG held that in the present case the applicant , while in the high - ranking position of president of a criminal division , had for DATE voluntarily taken part in decisions , which , at least as a whole ( in der Gesamtschau ) , had shown contempt for human beings and had been contrary to justice . The applicant had applied laws which had been contrary to the rule of law , to the former GPE ’s LAW and to the international conventions to which the former GPE had been a party . In all cases , hearings had been held in camera in a kind of secret trial and heavy prison sentences had been imposed on citizens who merely wished to leave the former GPE , which often meant the destruction of their personal and social lives .

In the opinion of ORG , those criticisms were still valid because the applicant had flagrantly violated human rights by taking part in politically - motivated criminal justice ( politische NORP ) for DATE , thus assisting the apparatus of ORG repression . Failure to penalise that would have met with the incomprehension , not only of the victims but also of the population in general and would have undermined the confidence of the public , especially people from the former GPE ( for whom politically - motivated criminal justice still remained a painful memory ) , in the integrity of the legal profession . ORG held that even though the applicant had practised the profession of lawyer for DATE without fault , that had been too short a period to allow the applicant ’s interest in practising his profession to override the public interest in confidence in the integrity of the legal profession .

In a decision of CARDINAL DATE ORG ( Bundesverfassungsgericht ) , sitting as a bench of CARDINAL members , declined to accept the applicant ’s constitutional appeal for adjudication .

In the opinion of ORG the appeal was not of fundamental constitutional importance , since it had already decided the issue of the constitutionality of LAW on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge . The disbarment of lawyers who , because of their participation in acts manifestly contrary to justice committed under the regime of ORG ( PERSON an eklatanten ORG ) , were not worthy of confidence and were a burden for the administration of justice , was in accordance with LAW ) .

ORG added that both the interpretation of that section by ORG — which had looked beyond the simple fact of the former judge ’s involvement in politically - motivated criminal justice ( GPE politischem ORG ) in that it had also examined the actual application of the law and had held that for the offence to be made out the judge must have adopted an extreme construction and application of the relevant provisions at the material time , to the detriment of the accused — and its application of the section in the present case had also been in accordance with LAW .

As to the applicant ’s submissions that the courts had not sufficiently taken into account the conditions under which the former - GPE ’s court system had been functioning and that it had been impossible for him to act differently at the time , ORG held that the applicant should have raised and supported those arguments in the ordinary courts , which he had failed to do . In that connection , he should , in particular , have pleaded in the relevant courts the actual circumstances which had led him to take part in politically - motivated trials , and explained whether and under what conditions he could have withdrawn and what would have been the consequences for him had he departed from the habitual practice in criminal cases and had acted in favour of the accused .

B. Relevant domestic law

Article CARDINAL of LAW ( Einigungsvertrag ) of DATE provided that the former GPE ’s administrative decisions remained in effect but could be set aside if they were incompatible with the principles of the rule of law ( mit rechtstaatlichen Grundsätzen unvereinbar ) .

NORP reunification itself took effect on DATE .

Section CARDINAL(CARDINAL ) of the Act of DATE on the verification of admissions as a member of the ORG and appointments as a notary or a lay judge provides :

ORG to become a member of the Bar granted by ORG of the former GPE or by admission to ORG before DATE shall be struck down where before his admission as a member of the Bar the lawyer concerned behaved in a way that made him unworthy to practise the profession of lawyer , having violated the principles of humanity or the rule of law , particularly as a member of or unofficial collaborator with the ORG security services . ”

( “ FAC . DATE durch ORG in das GPE oder durch den Minister PERSON der GPE ausgesprochene GPE zur GPE werden mit Wirkung für die ORG zurückgenommen , wenn sich PERSON LOC schuldig gemacht hat , das ihn unwürdig erscheinen läßt , den FAC auszuüben , weil er gegen LOC PERSON oder der Rechtsstaatlichkeit insbesondere i m FAC einer GPE als hauptamtlicher oder inoffizieller ORG verstoßen hat . ” )


CASE OF ASSOCIATION RHINO AND OTHERS v. SWITZERLAND [Extracts]

Violation of Art. 11;Pecuniary damage - award

Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The facts of the case , as presented by the parties , can be summarised as follows .

The applicant association was set up in GPE in DATE , under Articles CARDINAL et seq . of ORG . The name “ Rhino ” was an acronym for CARDINAL different NORP slogans , “ PERSON des habitants dans les Immeubles Non Occupés ” ( Return of residents to vacant buildings ) , and “ LOC dans les Immeubles que PERSON ” ( “ Let ’s carry on living in the buildings we occupy ” ) .

According to its constitution , the association pursued the following aims :

“ The aim of the ORG shall be to provide its members with affordable and community - based housing , in accordance with the association - based tenancy system devised by the LAW project . In particular it shall foster management based on economic and ecological solutions .

The Association shall endeavour to remove any buildings that it occupies from the real - estate market and from speculation .

The ORG shall also have the aim of promoting voluntary housing schemes ; it shall establish the requisite contacts in order to inform and encourage other association - based projects .

The Association shall foster the opening and maintaining on its premises of open areas for social or cultural activities . ”

In CARDINAL of the buildings that it occupied , the association also housed an inexpensive restaurant and occasionally organised various cultural events .

DATE most of the flats in the CARDINAL buildings subsequently occupied by the members of the association had remained empty , as their then owners were not intending to rent them out again .

On DATE CARDINAL individuals occupied CARDINAL flats in those CARDINAL buildings .

Following the occupation of their flats , the owners requested ORG of the GPE of GPE to order the eviction of the squatters , and CARDINAL orders to that effect were issued on DATE . However , the eviction was never carried out , notwithstanding a ORG judgment of CARDINAL DATE , which invited the ORG d’Etat ( cantonal government ) to enforce ORG orders . The cantonal authorities did not act upon that judgment , invoking a local policy of tolerating the presence of unlawful occupiers ( squatters ) provided the owners did not have a building or renovation permit . Confronted with a serious housing shortage in the GPE area , that policy was directed against the practice of owners who left property vacant for speculative gain and police assistance was thus denied when it would result in leaving the property vacant .

DATE the owners , who had given up seeking the ORG eviction , entered into various negotiations with the association with a view to selling it their properties . Attempts in DATE , DATE , DATE and DATE to negotiate the sale of CARDINAL or CARDINAL buildings , or to agree on a long - term lease , were unsuccessful , as the amount offered by the association was insufficient for the owners .

In DATE the owners applied for building permits with a view to renovating the buildings . The applicant association and some of the squatters challenged the applications , but their various cases were declared inadmissible for lack of locus standi . The building permits were thus granted and entered into force on DATE .

On DATE ORG ordered the occupied buildings to be vacated as work was scheduled to begin on DATE . An appeal was lodged against the eviction order . In a judgment of CARDINAL DATE , ORG for the GPE of GPE took the view , in substance , that the property owners had to bring proceedings as a priority before the civil courts to secure their rights , and that a law - enforcement measure would only be justified if the interests at stake and the seriousness of the damage incurred by them required immediate intervention that was impossible to obtain in a timely manner from the civil courts . The court further took the view that the owners had accepted the situation and had refrained from immediately exercising their right , such that the occupation was no longer causing a breach of public order .

In its judgment of DATE , ORG dismissed the public - law appeals by the owners and confirmed in substance that the unlawful occupation no longer constituted a breach of public order , on account of the time that had elapsed and the negotiations conducted by the parties , and that the owners had to take their claims to the civil courts .

On DATE , in parallel with the eviction proceedings , the owners of the occupied buildings requested ORG of the GPE of GPE to order the dissolution of the applicant association and the assignment of its assets to the ORG , invoking the fact that it pursued an unlawful aim , in the sense that it prevented them from exercising their rights as property owners .

ORG , in a judgment of DATE , ordered the ex nunc dissolution of the association .

Following an appeal , ORG of GPE upheld the dissolution order on DATE but gave it an ex tunc effect , and the association was thus deemed never to have existed . It referred the case back to the court below for the appointment of a liquidator and a public body to receive the association ’s assets .

On DATE the association lodged a public - law appeal and an ordinary appeal with ORG , primarily seeking the setting - aside of ORG judgment and the dismissal of the dissolution action . On DATE , the owners of the buildings brought claims for possession before ORG .

ORG upheld the decision of the court below by CARDINAL judgments given on DATE . In the judgment on the ordinary appeal , it took the following position on the complaint under LAW :

“ CARDINAL As regards the aims actually pursued , the applicant association refers to the commentary by GPE ( n. CARDINAL on Articles CARDINAL of LAW ) , which provides that in the event of unlawful acts being committed by the decision - making bodies of an association in the pursuit of its lawful aim , it is under LAW , paragraphs CARDINAL , of LAW ( action for damages ) and not under LAW thereof ( dissolution of the association ) that action should in general be taken . The applicant , however , overlooks the fact that the present case precisely does not concern such a situation but rather a situation of compatibility between the acts of the association ’s decision - making bodies and its aims ( see the above - cited commentary , p. CARDINAL ) .

Furthermore , the applicant association claims that the inhabitants have occupied the buildings at issue for a long time as a result of the tolerance of the authorities and the owners and that they should thus be regarded as having a tacitly - granted lease . That argument is , however , contradicted by the observations of ORG , which found , in a manner that binds ORG ( Article CARDINAL paragraph CARDINAL ( c ) and Article CARDINAL paragraph CARDINAL , of ORG ) , that the members of the applicant association have been occupying the buildings without authorisation and refuse to vacate them , resisting any eviction .

CARDINAL Similarly , the applicant ’s view that the owners should have sought to fulfil their aim by another remedy ( action invoking the constitutional guarantee of the right to property , actions to establish property rights ) is irrelevant , since the dissolution of the applicant association , that is to say the primary occupier of the buildings according to the decision appealed against ( p. CARDINAL , point CARDINAL ) , is in any event a legally admissible means of putting an end to the occupation . The question whether there would be other means apart from that CARDINAL is unimportant in the present case .

CARDINAL The applicant association further alleges that , in the present case , there has been no breach of an ‘ LOC right , but possibly of a mere ‘ subjective’ right . However , it disregards the fact that property is also protected against an occupation such as that in issue here by rules of objective law ( LAW , LAW , Criminal Code , etc . ) . Moreover , the present case can not be compared with that cited by the applicant association – premises of a club built in breach of an obligation not to erect DATE since that had nothing to do with the aim of the association .

CARDINAL Referring to PERSON ( PERSON , PERSON , p. CARDINAL ) , the applicant association further claims that to order the dissolution of an association whose activity is illegal , the illegality has to be permanent . The question whether this criterion is decisive may remain undecided , as in the case of the applicant association it is , in any event , satisfied .

CARDINAL In this context , the applicant refers to other aims in its constitution and complains about the failure to apply to its case LAW on partial nullity . The question whether that provision ( in combination with LAW ) is in fact applicable to situations under LAW is a matter of debate in legal writings ( answered in the affirmative by GPE , ORG CARDINAL/CARDINAL I p. CARDINAL n. CARDINAL and PERSON bernois , n. CARDINAL on Articles PERCENT CARDINAL Civil Code ; and in the negative by ORG , PERSON bâlois , CARDINALrd edition , n. CARDINAL on LAW ; PERSON , ORG II/CARDINAL , CARDINALrd edition , n. CARDINAL ; PERSON , ORG , GPE DATE , p. CARDINAL ) . ORG has settled the matter in the affirmative , at least for other legal entities ( ORG CARDINAL II CARDINAL concerning a foundation and ORG CARDINAL II CARDINAL concerning a cooperative entity ) . The question can , however , remain undecided in the present case . ORG examined this question and arrived at the conclusion that the applicant association ’s unlawful aim was predominant in comparison with its other constitutional aims , because the association had been set up above all with that aim in mind . The applicant association has not disputed this , but has merely asserted that its other aims are ‘ essential’ . Moreover , it does not claim that the conditions of LAW paragraph CARDINAL of LAW are met , in particular that the association would nevertheless have been constituted without the constitutional clause that is null and void ; it has simply claimed that it ‘ could continue to operate’ even in the absence of the constitutional aim that has been declared unlawful , but that is not decisive for the purposes of LAW , paragraph CARDINAL , of LAW .

CARDINAL In this context , the applicant association further criticises , referring to GPE ( PERSON bernois , n. CARDINAL on Articles PERCENT CARDINAL Civil Code ) , the order for its dissolution ex tunc . Since it has , for DATE , interacted with other private persons , entered into contracts , conducted negotiations and acted before the courts , only a dissolution ex nunc would be appropriate .

ORG quite rightly ordered its dissolution ex tunc , as the association has pursued its unlawful aim since its foundation ( see GPE , loc . cit . , n. CARDINAL ) . As to the consequences for the legal relations created in the meantime , it will be for the liquidator to decide .

The applicant association has , lastly , invoked a violation of LAW ( freedom of association ) , LAW ( restriction of fundamental rights ) and LAW ( freedom of association ) .

CARDINAL Since the applicant complains of an improper application of federal law that , it also alleges , has breached one of its rights under the LAW or the LAW , the applicant is in fact invoking , as it has itself observed by referring to PERSON ( ORG civile , vol . DATE , p. CARDINAL n. CARDINAL ) , a violation of federal law . This complaint therefore falls within the context of the ordinary appeal .

CARDINAL Article CARDINAL ORG secures , in particular , everyone ’s right to freedom of assembly and freedom of association ( paragraph CARDINAL ) . The exercise of that right is , however , subject to restrictions , which , being prescribed by law , constitute measures that are necessary , in a NORP society , for national security or public safety , for the prevention of disorder or crime , for the protection of health or morals , or for the protection of the rights and freedoms of others ( paragraph CARDINAL , first sentence ) .

ORG , based on a decisive statutory provision ( LAW ) , ordered the applicant association ’s dissolution on account of its unlawful constitutional aim ( breaching , among other things , the guarantee of the right to property under LAW , paragraph CARDINAL , of the LAW ) and on account of its unlawful activity ( occupation of property belonging to third parties ) . Those CARDINAL situations are not covered by the guarantee of the right to freedom of assembly and association ( Article CARDINAL , paragraph CARDINAL , ORG ) , but fall within the admissible restrictions to that right ( LAW , paragraph CARDINAL , ORG ; see the judgment of ORG DATE in the case of PERSON ( ORG ) and Others against GPE , concerning the dissolution of a political party and the right to freedom of assembly and association ) . The fact that in the case of the dissolution of a political party it was necessary , as the applicant alleged , to adopt particular restraint or lay down strict demands is correct ( see judgment of CARDINAL DATE , cited above ; PERSON , ORG , GPE DATE , n. CARDINAL on Article CARDINAL ORG with references concerning the relationship with freedom of expression under Article CARDINAL ORG ) , but it is not decisive in the present case as the applicant association , in spite of a certain political component in its aim and the implementation thereof , is not a political party and , moreover , there is not a sufficiently close connection with freedom of expression ” .

On DATE the date on which the judgment was served , the Head of ORG of GPE invited the owners to explain the fact that they had not yet made use of their building permits . The owners replied that the work could not be carried out without evicting the squatters , which they had been trying to do for DATE without success .

On DATE the Head of the ORG ordered the owners to carry out the necessary work to remedy the state of degradation of the buildings and to ensure that they were sufficiently habitable and maintained . The work was to begin within DATE , failing which it would be undertaken by the authorities at the ORG expense . The owners repeated that the work could not be carried out without the buildings being evicted .

In a judgment of CARDINAL DATE ORG of the GPE of GPE appointed a liquidator , who took various measures , in particular the freezing of post - office and bank accounts , the termination of the contract of employment of the association ’s secretary and a request for the restitution of fees already paid to the lawyers of the applicant association .

On DATE the eviction proceedings were suspended by ORG because the occupiers , acting individually , undertook to recognise the existence of rent - based lease agreements between themselves and the owners .

On DATE the owners recovered possession of their occupied properties , initiating CARDINAL simultaneous decisions : CARDINAL , an on - the - spot police check of the ORG identity , and the other , an order to begin the renovation work , addressed to the owners , which enabled them to recover possession with police assistance .

A number of occupiers appealed against the eviction decision to ORG for construction - related matters . Its decision to declare the appeals inadmissible was upheld by ORG and by ORG in a judgment of CARDINAL DATE .

Articles CARDINAL of LAW of DATE govern legal entities . The relevant provisions for the present case read as follows :

Article CARDINAL

“ The governing bodies express the will of the legal entity .

They bind the legal entity by their legal decisions and by other relevant actions .

The governing officers are also personally liable for their wrongful acts . ”

LAW of assets )

“ On dissolution of a legal entity , and unless otherwise provided by law , the constitution , the founding charter or the governing bodies , the assets of a dissolved legal entity pass to the public body ( ORG , GPE , ORG ) to which the entity was affiliated according to its object .

Such assets must be used as far as possible for their original purpose .

Where a legal entity is dissolved on account of having an immoral or unlawful object , the assets pass to the public body even where otherwise provided . ”

Articles DATE to CARDINAL of LAW lay down rules for associations . Article CARDINAL reads as follows :

“ CARDINAL . Associations with a political , religious , scientific , cultural , charitable , social or other non - commercial purpose acquire legal personality as soon as their intention to exist as a corporate body is apparent from their constitution .

The constitution is produced in writing , containing the necessary provisions as to the purpose , resources and organisation of the association . ”

Article CARDINAL of ORG provides for the dissolution of an association by judicial decision . This provision reads as follows :

“ Dissolution shall be ordered by the court , at the request of the competent authority or an interested party , where the association ’s purpose is unlawful or immoral . ”


The applicants , Mr István Mázsa and Mr PERSON , are NORP nationals , who were born in DATE and DATE , respectively , and live in GPE and GPE , GPE . They are represented before the ORG by PERSON , a lawyer practising in GPE , GPE . The respondent Government are represented by Mr PERSON , Deputy ORG - Secretary , ORG .

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

In DATE the applicants instituted proceedings before the ORG seeking damages from a company and its board members . On DATE the court allowed their action . On appeal , on DATE the ORG modified the first - instance judgment and reduced the amount of damages awarded . This judgment became final .

The judgment was not executed .

On DATE the defendants requested ORG to re - open the case as the final judgment had been based on false information . On DATE the court accepted their request and ordered the case to be re - opened .

On the ORG appeal , on DATE ORG annulled the first - instance order and remitted the case to ORG , holding that the defendants had failed to append the documents cited in their request .

Subsequently , ORG again ordered the re - opening of the case . The ORG appeal against this order was dismissed on DATE by ORG .

On DATE ORG annulled the final judgment of DATE and ordered the defendants to pay a reduced amount of damages to the applicants .

On the appeals of both parties , on DATE ORG modified parts of the first - instance judgment of CARDINAL DATE in so far as they concerned the applicants and upheld the final judgment of DATE .

A copy of the decision of DATE was received , with a view to its despatch , at ORG on DATE . It was posted by registered mail at ORG on DATE . On DATE , DATE it was received at ORG with a view to its delivery .

The Government have submitted the avis de réception attached to the letter containing the decision . They maintain that the handwritten date of service appearing on the avis de réception is DATE . A letter sent by ORG corroborated that the decision was served on the applicants’ lawyer on DATE .

The applicants have submitted a copy of the decision which was allegedly stamped on arrival at their lawyer ’s office on DATE , DATE .

The Government submit that no postal delivery takes place on DATE in GPE .


The applicant , Mr PERSON GPE and PERSON , are NORP nationals who were both born in DATE and live in GPE . They were represented before the Court by Ms K. Moskalenko and Mr M. Rachkovskiy , lawyers practising in GPE .

s , may be summarised as follows .

The applicants are the parents of Mr PERSON , a journalist writing for the PERSON newspaper , who was killed in his office on DATE by a bomb explosion .

On DATE the applicants were granted the victim status in the criminal case concerning their son ’s assassination .

The investigation charged CARDINAL officers of ORG and CARDINAL civilian with intentional murder of Mr GPE . It was alleged that the plot had been designed to put an end to PERSON publications about corruption in ORG . The newspaper and another wounded journalist , but not the applicants , constituted themselves as civil parties in the criminal proceedings .

On DATE ORG of ORG acquitted the defendants of all charges .

On DATE ORG of ORG of the Russian Federation quashed the acquittal and remitted the matter for a new examination by a different formation .

The second trial began on DATE . On DATE ORG of ORG again pronounced an acquittal .

On DATE ORG of ORG upheld the acquittal in the final instance .


The applicant , a NORP national born in DATE , lives in LOC ( GPE ) . He is represented before the ORG by PERSON , a lawyer practising in PERSON .

On DATE the applicant entered GPE by virtue of the Agreement concluded on DATE between the Government of ORG and ORG on the recruitment of NORP workers . The applicant was granted the appropriate work and residence permits . On DATE he was granted a residence permit of unlimited duration .

The applicant was first employed by a company in GPE . Thereafter he worked in various restaurants .

The applicant ’s wife entered GPE in DATE with the couple ’s CARDINAL children born in GPE in DATE , DATE and DATE . She holds a permanent residence permit .

On DATE the applicant was arrested and detained pending trial on suspicion of being implicated in a case of drug trafficking .

By a judgment of DATE , which subsequently became final , ORG ( ORG ) convicted the applicant of illegal drug trafficking and sentenced him to CARDINAL years’ imprisonment . The applicant ’s accomplice was convicted of illegal drug trafficking and attempted importation of narcotics and sentenced to DATE and CARDINAL months’ imprisonment . The court found that the applicant who was not a drug addict , had bought together with his accomplice , a co - national , QUANTITY of heroin for the price of MONEY . In DATE a third person supplied them with CARDINAL samples of respectively QUANTITY of heroin . Not being satisfied with the quality , they refused to buy a larger amount . DATE further negotiations took place with the same person and with the same result . As from DATE the applicant ’s accomplice sold several times altogether QUANTITY of heroin in quantities of QUANTITY . According to the court , the applicant and his accomplice acted in a professional way to the detriment of the health and life of numerous drug addicts .

Since DATE the applicant served his sentence in the ORG prison . He was granted day parole release and worked for a private enterprise in PERSON . On DATE the ORG ordered the applicant ’s release on probation . The applicant was released on DATE . He was employed by the private enterprise until DATE .

After having heard the applicant on several occasions , ORG ordered the applicant ’s expulsion on DATE and invited him to leave GPE within DATE . The decision to expel the applicant was based on Sections CARDINAL and CARDINAL of LAW ) according to which an alien is to be expelled when he has been sentenced to a minimum of DATE imprisonment and serious reasons of public safety and order justify his expulsion . ORG pointed out that the applicant had been convicted of drug offences , sentenced to DATE imprisonment and it considered that his expulsion had to be ordered on general preventive grounds having the objective of deterring other aliens . Furthermore , the applicant ’s personal conduct when committing the offences indicated a specific risk of re - offending . ORG noted that the applicant ’s wife lived for DATE in GPE and was granted a residence permit . However , a medical examination did not show that she suffered from psychiatric health problems , as was alleged by the applicant . The couple ’s CARDINAL children were of full age and sufficiently independent to organise their life without their father . ORG concluded that the applicant ’s expulsion was justified by the public interest , which had greater importance than the applicant ’s personal interest to stay in GPE .

Following the partial dismissal of his objection ( Widerspruch ) , the applicant brought the case before ORG ( Verwaltungsgericht ) .

On DATE ORG dismissed the applicant ’s claim to have the expulsion order revoked . The court considered that the applicant ’s conviction of drug trafficking and his term of emprisonment of DATE reflected a serious breach of public order . The applicant had direct and narrow connections with drug dealers and the drug scene . He had acted in a professional manner as was shown by the quantity of the heroin and the fact that in DATE he and his accomplice twice refused to accept offers to buy heroin because of its unsatisfactory quality . This also proved that the applicant had a profound knowledge of drugs and did not accept bad quality . Furthermore , the heroin was sold in quantities of TIME during a longer period and the deals were concluded generally in the restaurants in which the applicant was employed . Finally it had to be taken into account that the applicant did not make his confession until very late in the proceedings , namely when he realised that he had no other choice . For that reason , his sentence was relatively more severe than that of his accomplice . The court added that there was no doubt that offences such as illegal heroin trafficking , because of the danger they present for the health of the users and the widespread drug - related criminality , constituted a particularly serious threat to public safety and justified the expulsion of aliens who contravened the laws on drugs for the purpose of deterring other aliens . The court found that the applicant ’s conduct which gave rise to his conviction was evidence of a genuine and sufficiently serious risk that he might commit further drug offences . Furthermore , there was no indication of exceptional circumstances that would justify non - expulsion . The court noted that the applicant had been integrated into GPE after having lived there for DATE with his wife and other close members of his family , and that he had been legally employed there for DATE . The court considered , however , that a foreign national could be denied the right to the protection of his marriage on the basis of general preventive grounds if he had committed drug offences . The applicant ’s case was therefore not different from that of other aliens who after a long stay had to leave the country for having committed serious offences .

Moreover , ORG found that the interference with the applicant ’s right to respect for his private and family life , as guaranteed by LAW , did not infringe the principle of proportionality . The measure complained of was not disproportionate to the seriousness of the offences committed by the applicant and was thus justified under paragraph CARDINAL of this provision .

On DATE the applicant filed a request for leave to appeal ( Antrag auf Zulassung der Berufung ) .

On DATE ORG ( ORG ) dismissed this request and on DATE rejected the applicant ’s request to reconsider this decision .

On DATE a panel of CARDINAL judges of ORG ( Bundesverfassungsgericht ) declined to accept the applicant ’s constitutional complaint for adjudication and on DATE declined to accept for adjudication the applicant ’s constitutional complaint against the communication of ORG of DATE .

In the meantime , on DATE , ORG had informed the applicant that he would be expelled to GPE if he did not to leave GPE before DATE .

On DATE the applicant filed an objection against this decision . He submitted that he had not committed any offence after his conviction in DATE . His personal conduct did thus not indicate any specific risk to the requirements of public order and safety . Furthermore , his wife suffered from serious psychiatric health problems and needed his help . According to him , his expulsion could not be justified only on the basis of general grounds of prevention .

On DATE the applicant applied for an interim injunction ( einstweilige Anordnung ) requesting to stay his expulsion pending the administrative proceedings .

On DATE ORG dismissed the request . It confirmed the decision to expel the applicant to GPE reaffirming that the applicant ’s personal interest to stay in GPE did not outweigh the public interest to expel him .

On DATE ORG dismissed the applicant ’s request for leave to appeal ( Antrag auf PERSON ) .

On DATE the applicant filed a constitutional complaint against this decision and applied for an interim injunction . These proceedings are still pending .