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

The applicants , Mr PERSON and PERSON ( the second applicant ) , are NORP nationals who were born in DATE and DATE respectively and live in PERSON . They were represented before the ORG by Mr PERSON , and subsequently by PERSON GPE , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the applicants acquired from a third party a plot of land with a surface area of QUANTITY . m ( of which QUANTITY . m was classified as agricultural land ) and a house situated on it located in the municipality of PERSON , settlement ORG . Relevant excerpts from the local development plan were appended to the contract .

According to the relevant local development plan which was adopted on DATE almost the entire property in question was designated for the construction of a ring road .

In DATE or DATE the second applicant ’s health significantly deteriorated . In addition , the applicants’ grandchild had a stroke . Consequently , they decided to sell part of their property in order to pay for the medical treatment of the second applicant and their grandchild . They also wanted to finance their son ’s higher education . However , a number of potential buyers , having learnt about the lack of possibilities to develop the land , lost interest in the property .

On DATE the applicants requested the Mayor of PERSON to clarify whether the ring road would be constructed and informed him about their difficult financial situation and unsuccessful attempts to sell part of their property to pay off their debts .

On DATE the Mayor informed them that the construction of the ring road was not foreseen in the municipality investment plan . He further pointed out that due to the scale of the construction and the character of the ring road , its construction would most likely be financed from the budget of the regional governor or the Government . In those circumstances , the GPE ’s budget could not bear the expenses related to the acquisition of the ORG land .

Subsequently , the applicants made an enquiry with ORG .

On DATE they were informed that the construction of the ring road as part of the regional road no . CARDINAL was still expected ; however , due to limited financial resources no date for that construction had yet been fixed . Furthermore , the applicants were informed that there were no immediate plans to purchase the properties designated in the local development plan for the construction of the ring road . Lastly , ORG requested the Mayor of PERSON to consider providing the applicants with an alternative plot of land .

On DATE , in reply to that latter request , the Mayor informed the applicants that he was unable to offer them an alternative plot of land .

Subsequently , the applicants made a new enquiry with ORG . On DATE they were informed that no date for the construction of the ring road has been fixed , but that it would certainly not be constructed in DATE .

In reply to the applicants’ further query , on DATE the Mayor informed them that their requests for acquisition of their property had been examined by ORG on a few occasions . However , in view of the scope of the planned development of their land ( regional road ) , the GPE could not bear any expenses related to the acquisition of their property .

On DATE the applicants petitioned the ORG . On DATE the ORG informed them that since DATE he had monitored the legal status of properties which , according to the local development plans , had been designated for future public use ; however , they were put to such use only after DATE ( the so - called “ frozen plots ” ) . In particular , he challenged before the ORG section CARDINAL § CARDINAL of the DATE LAW which had restricted the ORG possibility to receive compensation for reduction in the value of their properties and to acquire land or to exchange it in cases where the use of property was not feasible or significantly impaired , following the adoption of a local development plan . However , ORG held that the contested provision was compatible with LAW ( case no . K CARDINAL/CARDINAL ) . He further informed the applicants that provided that no further statutory extension of the validity of the old development plans was granted , they would be able to have recourse to section DATE LAW .

On DATE ORG informed the Mayor that it was not possible in DATE to finance the purchase of properties designated for the ring road .

On DATE the relevant local development plan expired .

On DATE the applicants requested the Municipality to provide them with information as to the future development of their land .

On DATE they were informed that no local development plan had been adopted in respect of their land . Since the development plan determined the future use of land , no development of the applicants’ property was allowed until such time as the relevant plan was adopted . Furthermore , the applicants were informed that according to the local development plan which was in force until DATE their land was designated for the construction of a regional road .

It appears that as of DATE GPE had not yet adopted a local development plan in respect of the applicants’ land .

From DATE to DATE questions of land development were governed by LAW on ORG .

On DATE the Law of DATE on ORG ( “ the DATE LAW ) entered into force .

Section CARDINAL of the DATE Act provided that in cases where the use of property in the previous manner , in connection with the adoption of a local development plan or its amendment , was no longer feasible or significantly impaired , the owner of such property was to be granted certain rights against the municipality . The owner could either ( CARDINAL ) claim compensation for the damage actually incurred , or ( CARDINAL ) claim that the property be acquired by the municipality , or ( CARDINAL ) that he / she be provided with an alternative property . Section CARDINAL of the CARDINAL Act was the first provision in the post - war period which provided for some compensatory measures in favour of the owners of properties who were negatively affected by the local development plans . However , section DATE of the CARDINAL Act stipulated that those provisions would be applicable only in respect of those local development plans that were adopted after the Act entered into force ( i.e. DATE ) .

Pursuant to section CARDINAL LAW , the development plans adopted before the date of its entry into force were to expire on DATE at the latest . Subsequently , in DATE and DATE the parliament extended the validity of the old development plans until DATE and DATE respectively .

The DATE Act was repealed by the Law of DATE on ORG ( “ the DATE LAW ) which entered into force on DATE . LAW of LAW stipulated that local development plans adopted before DATE remained valid , but only until DATE .

Section CARDINAL of the DATE Act afforded the owners concerned comparable rights against the municipality to those under LAW in cases where the use of property in the previous manner , in connection with the adoption of a local development plan or its amendment , was no longer feasible or significantly impaired .

In DATE the ORG made an application to ORG , challenging the constitutionality of section DATE read in conjunction with section CARDINAL of the CARDINAL Act . He alleged that those provisions contravened the constitutional principle of the rule of law , the principle of equality and the right of property . In particular , the ORG challenged the prohibition on filing claims provided by section CARDINAL of the DATE Act in respect of those owners who had been negatively affected by the development plans adopted before DATE .

On DATE ORG dismissed the ORG ’s application . In respect of the alleged breach of the constitutional right of property , ORG considered that the right of property was not absolute , and that in any event the presumption in favour of constitutionality of the impugned provisions had not been rebutted .


The applicant is an NORP national , born in DATE and living in GPE . He was the husband of PERSON .

He is represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE PERSON was killed in a terrorist bombing in GPE . The cars used for the bombing were stolen in GPE , GPE on DATE .

The NORP authorities conducted extensive inquiries but were unable to bring charges against any person . The files remain open . ORG ( ORG ) in GPE has conducted an inquiry into the theft of the vehicles and related offences which did not produce any results . However , there was no formal murder inquiry by the ORG .

On DATE ORG , a television station in GPE , broadcast a programme in which the adequacy of the ORG inquiry was discussed .


CASE OF STEC AND OTHERS v. THE UNITED KINGDOM

No violation of Art. 14+P1-1;Not necessary to examine victim status of third, fourth and fifth applicants

Anatoly Kovler;András Baka;Christos Rozakis;Dean Spielmann;Egbert Myjer;Javier Borrego Borrego;Jean-Paul Costa;John Hedigan;Josep Casadevall;Kristaq Traja;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Rait Maruste;Stanislav Pavlovschi

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

On DATE Mrs Stec injured her back at work and was unable to continue working . She was awarded Reduced Earnings Allowance ( REA – see paragraph CARDINAL below ) from DATE . On DATE she reached DATE and as from DATE her award of ORG was replaced by an award of Retirement Allowance ( RA – see paragraph CARDINAL below ) .

The applicant appealed against this decision on the ground of sex discrimination to ORG ( SSAT ) , which allowed her appeal on DATE , and the adjudication officer subsequently appealed to the ORG Commissioner ( “ the Commissioner ” ) .

The Commissioner joined PERSON case to those of the other CARDINAL present applicants , and also to that of PERSON . Having heard arguments on DATE , the Commissioner decided on CARDINAL DATE to refer the following questions to ORG ( ECJ ) :

“ CARDINAL . Does LAW permit a member ORG to impose unequal age conditions linked to the different pension ages for men and women under its statutory old - age pension scheme , on entitlement to a benefit having the characteristics of Reduced Earnings Allowance under a statutory occupational accident and disease scheme , so as to produce different DATE cash payments under that scheme for men and women in otherwise similar circumstances , in particular where the inequality :

( a ) is not necessary for any financial reason connected with either scheme ; and

( b ) never having been imposed before , is imposed for the first time DATE after the inception of the CARDINAL schemes and also after DATE , the latest date for the Directive to be given full effect under LAW ?

NORP If the answer to Question CARDINAL is Yes , what are the considerations that determine whether unequal age conditions such as those imposed in GPE for Reduced Earnings Allowance DATE are necessary to ensure coherence between schemes or otherwise fall within the permitted exclusion in DATE ?

NORP ... ”

In his order of reference the Commissioner observed :

“ On the main issue , it is apparent from the information before me ( and the adjudication officers so concede ) that the imposition after DATE of unequal age conditions on REA for the first time was not necessary to maintain the financial equilibrium or coherence ( in so far as that word is understood in a financial sense ) of the GPE social security schemes .

It is also apparent ( and on the information before me I so decide as a fact ) that such imposition was not necessary to enable GPE to retain the different pension ages under its old - age scheme . That difference had coexisted with the Industrial Injuries Scheme ... for DATE from DATE without it , and ORG could simply have been left as it was , or a non - discriminatory cut - off age adopted , without upsetting the pension system as it had always operated .

The real question therefore is the more difficult CARDINAL of whether a government which considers it a costly anomaly to go on paying a benefit such as ORG to people too old to work is permitted to impose a new cut - off at unequal ages , claiming the benefit of the exclusion in LAW ‘ possible consequences for other GPE having regard to what was said in the [ ECJ ’s ] judgment in PERSON , on the ground that the ages selected are the same as those for the pension , and ... the government take the view as a matter of policy that the income - replacement functions of ORG should be performed after pension age by the pension , plus the very much smaller ‘ Retirement Allowance’ instead . ”

The ECJ gave judgment on DATE ( see paragraph CARDINAL below ) . On DATE the Commissioner , following the ECJ ’s ruling , struck out the applicants’ cases where they were the appellants before him and allowed the appeals where the adjudication officers had been the appellants .

On DATE Mr PERSON suffered a work - related injury to his right hand , as a result of which he had to stop working . From CARDINAL DATE he received Special Hardship Allowance , which was converted to ORG from DATE . On DATE he reached DATE and from DATE , when he turned DATE , he received a statutory retirement pension . On DATE an adjudication officer reviewed the award of ORG and decided that , with effect from DATE , it should be replaced by an award of ORG , paid at PERCENT of the ORG rate .

NORP The applicant appealed on the ground that a woman in the same circumstances would have been treated as having retired on or before DATE and would have been entitled to a frozen rate of REA for life , a more valuable benefit . On DATE the Stockport SSAT dismissed his appeal , and PERSON appealed to the Commissioner , who referred the case to the ECJ ( see paragraphs CARDINAL above ) .

PERSON suffered a work - related injury to her neck on DATE . She was awarded Special Hardship Allowance from DATE and from DATE this was converted to an award of ORG . Her sixtieth birthday was on DATE and she received a retirement pension from DATE . It was decided on DATE , with effect from DATE , to freeze for life her award of REA at MONEY ( GBP ) DATE .

The applicant appealed to the Bolton SSAT on the ground that , had she been a man , she would have continued to receive unfrozen ORG . The SSAT allowed her appeal on DATE , and the adjudication officer appealed to the Commissioner , who referred the case to the ECJ ( see paragraphs CARDINAL above ) .

On DATE Mr ORG injured his back at work and was unable to continue working . He was awarded Special Hardship Allowance from DATE , converted to ORG from DATE . He reached DATE on DATE and received a retirement pension from DATE . On DATE an adjudication officer reviewed his award of ORG and decided that with effect from DATE it should be replaced by an award of ORG .

The applicant appealed to ORG , on the ground that a woman in his circumstances could have chosen to have been treated as retired from DATE , and so would have been entitled to frozen REA for life , a more valuable benefit than GPE . The SSAT allowed his appeal on DATE and the adjudication officer appealed to the Commissioner , who referred the case to the ECJ ( see paragraphs CARDINAL above ) .

Reduced Earnings Allowance ( REA ) is an earnings - related additional benefit under the statutory occupational accident and disease scheme which was put in place in DATE . Originally the benefit was known as Special Hardship Allowance , but it was recast and renamed by LAW DATE . At the time of the introduction of these applications , the relevant legislation was Part V of ORG DATE .

REA has , since DATE , been funded by general taxation rather than the ORG scheme . It is payable to employees or former employees who have suffered an accident at work or an occupational disease , with the purpose of compensating for an impairment in earning capacity . The DATE amount is based on a comparison between the claimant ’s earnings prior to the accident or disease and those in any actual or notional alternative employment still considered suitable despite the disability , subject to a maximum DATE award of GBP DATE . It is a non - contributory benefit , in that eligibility is not conditional on any or a certain number of contributions having been made to ORG .

Under more recent legislation the benefit is being phased out altogether and no fresh right to REA can arise from an accident incurred or a disease contracted on or after DATE . In addition , a succession of legislative measures after DATE attempted to remove or reduce it for claimants no longer of working age , in respect of whom the government considered any comparison of “ earnings ” to be artificial . Before these changes , there had been a continued right to REA notwithstanding the attainment of retirement age and ORG had been payable concurrently with the ORG pension .

The method chosen to reduce eligibility was to impose cut - off or limiting conditions by reference to the ages used by the statutory old - age pension scheme , namely CARDINAL for men and CARDINAL for women until DATE , then tapering up to eventual equality at CARDINAL in DATE ( Part II of ORG DATE , as amended by LAW DATE see paragraphs CARDINAL below ) .

Under the new provisions ( ORG Benefits Act DATE ) , all ORG recipients who , before DATE , had reached either ( a ) DATE , if a man , or DATE , if a woman , or ( b ) the date of retirement fixed by a notice , at DATE + for a man or CARDINAL + for a woman , would receive a frozen rate of REA for life . All other ORG recipients would cease to receive ORG , and would instead receive ORG ( GPE ) either on reaching ( a ) CARDINAL , if a man , or DATE , if a woman , or ( b ) the date of retirement fixed by a notice , at DATE + for a man or CARDINAL + for a woman or on giving up employment at CARDINAL for a man or CARDINAL for a woman .

NORP State retirement pensions are funded entirely from ORG , to which all employers and the majority of the working population , whether employed or self - employed , are liable to pay compulsory contributions . The individual ’s liability for such contributions ceases at “ pensionable age ” .

Men and women born before DATE attain pensionable age at DATE and CARDINAL respectively ( Schedule CARDINAL to LAW DATE ) . The present pension age for women was introduced in DATE by ORG . Prior to that , State pension age was DATE for both men and women . According to the government ’s Green and White Papers entitled respectively “ Options for Equality in State Pension Age ” ( Cm DATE , DATE ) and “ ORG ( ORG , DATE ) , the lower age for women was introduced in response to a campaign by unmarried women , many of whom spent much of their lives caring for dependent relatives , and also as part of a package to enable married couples , where the wife was usually younger than the husband and financially dependent on him , to receive a pension at the couples’ rate when the husband reached CARDINAL .

In the DATE ORG , the government pointed out that while , historically , women ’s entitlement to a ORG pension was frequently reduced because their traditional role of caring for the family in the home led to fragmented employment records , the number of women in employment had greatly increased in DATE : in DATE , PERCENT of employees were women , compared with PERCENT in DATE ( although the statistics did not differentiate , for example , between full- and part - time workers ) . Moreover , a home responsibilities provision , introduced in DATE , now helped those whose working life was shortened because of time spent caring for a child or sick or disabled person to build up entitlement to a basic pension , and the concession which allowed married women to pay reduced - rate ORG contributions , leaving them dependent on their husbands’ contributions , was withdrawn in DATE . LAW DATE had amended LAW DATE to make it unlawful for an employer to have different retirement ages for men and women . The view of the government , expressed in the White Paper , was that the preferential pension age for women had no place in modern society and it was proposed to equalise pensionable age for men and women .

It was decided to equalise at DATE , rather than a lower age , because people were living longer and healthier lives and because the proportion of pensioners in the population was set to increase . It was estimated that any move towards paying male ORG retirement pensions DATE would cost in the order of ORG MONEY per year gross ( representing additional pension payments to men DATE and lost income from ORG contributions from these men ) or a net sum of ORG MONEY per year ( when account was taken of savings on payment of other , ORG benefits to such men ) . It was decided to introduce the change gradually to ensure that women affected by the change and their employers had ample time to adjust their expectations and arrange their financial affairs accordingly .

NORP In order to bring male and female pensionable age into line with each other , therefore , section CARDINAL of the Pensions Act DATE , together with Schedule CARDINAL , provide for the pensionable age of women born between DATE and DATE to increase progressively . With effect from DATE , the pensionable age of men and women in GPE will begin to equalise , and by DATE both sexes will attain pensionable age at DATE .

According to information provided by the Government in DATE , men and women became eligible to receive an old - age pension at the same age in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE and GPE .

Women were entitled to receive a pension at a younger age than men in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE , GPE , GPE , “ the former GPE ” and GPE . Many of these countries were phasing in equalisation of pensionable age . This was to take place in GPE DATE ; in GPE by DATE ; in GPE DATE ; in GPE before DATE ; in GPE by DATE ; in GPE by DATE ; and in GPE by DATE .

Council Directive CARDINAL/CARDINAL/EEC of DATE ( “ the Directive ” ) concerns the progressive implementation of the principle of equal treatment for men and women in matters of social security . Article CARDINAL ) of the Directive prohibits all discrimination on grounds of sex , in particular as concerns the calculation of benefits . Such discrimination can be justified only under LAW , which provides that the Directive is to be without prejudice to the right of member GPE to exclude from its scope the determination of pensionable age for the purposes of granting old - age and retirement pensions and the possible consequences thereof for other benefits . Under LAW CARDINAL(CARDINAL ) , “ [ GPE shall periodically examine matters excluded under paragraph CARDINAL in order to ascertain , in the light of social developments in the matter concerned , whether there is justification for maintaining the exclusions concerned ” .

In case ORG The Queen v. Secretary of ORG , ex parte ORG ( “ ORG ” ) [ DATE ] ORG Reports ( ECR ) I-CARDINAL , the ECJ found that LAW must be interpreted not only as authorising the retention of a statutory pensionable age which differed according to sex , but also forms of discrimination affecting access to certain benefits which were “ necessarily linked ” to the difference in pensionable age . Inequality between men and women , with respect to the contribution periods required in order to obtain a pension of an identical amount , constituted such discrimination where , having regard to the financial equilibrium of the national pension system in the context of which it appeared , it could not be disassociated from the difference in pensionable age .

NORP In case C-CARDINAL/CARDINAL Secretary of ORG v. PERSON and Others [ DATE ] ECR I-CARDINAL , the ECJ held that the reasoning from the ORG decision extended to benefits linked to differential ORG retirement ages where “ such discrimination is objectively necessary in order to avoid disrupting the complex financial equilibrium of the social security system or to ensure consistency between retirement pension schemes and other benefit schemes ” .

In the present applicants’ case , C-CARDINAL/CARDINAL Hepple and Others v. Adjudication Officer [ DATE ] ECR I-CARDINAL , the ECJ applied the reasoning of PERSON and Others to find , first , that “ removal of the discrimination at issue ... would have no effect on the financial equilibrium of the social security system of GPE as a whole ” ( § CARDINAL ) . However , it went on to hold that it had been objectively necessary to introduce different age conditions based on sex in order to maintain coherence between the ORG retirement pension scheme and other benefit schemes , since ( § § DATE )

“ ... the principal aim of the successive legislative amendments ... was to discontinue payment of REA – an allowance designed to compensate for an impairment of earning capacity following an accident at work or occupational disease DATE to persons no longer of working age by imposing conditions based on the statutory retirement age .

Thus , as a result of those legislative amendments , there is coherence between ORG , which is designed to compensate for a decrease in earnings , and the old - age pension scheme . It follows that maintenance of the rules at issue in the main proceedings is objectively necessary to preserve such coherence .

That conclusion is not invalidated by the fact that ORG is replaced , when the beneficiary reaches retirement age and stops working , by ORG , the rate of which is PERCENT of ORG , since ORG is designed to compensate for the reduction in pension entitlement resulting from a decrease in earnings following an accident at work or occupational disease .

It follows that discrimination of the kind at issue in the main proceedings is objectively and necessarily linked to the difference between the retirement age for men and that for women , so that it is covered by the derogation for which LAW provides . ”


The applicant , Mr PERSON , is a GPE national , who was born in DATE and is currently detained in GPE .

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

On DATE the applicant pleaded guilty to CARDINAL offences : CARDINAL were of indecency with a child , CARDINAL of abducting a child and CARDINAL of indecent assault .

On DATE he was sentenced to DATE imprisonment for the offence of indecent assault , the sentences for the other offences being of lesser periods of custody all running concurrently . The sentencing judge also imposed an extended - sentence pursuant to section CARDINAL of LAW DATE , for a period of DATE extended licence . In his sentencing remarks the judge stated :

“ PERSON , you have pleaded guilty to these CARDINAL offences . They do vary , in my view , in their gravity , the really serious one , of course , is the last one , the indecent assault on young PERSON .

You say you were totally ( inaudible ) by alcohol at the time and you could n't remember what you were doing , and , the letter you have written to me shows refreshing honesty . Drink has been your ruination . ... [ S]omething has to be done , both to attend your alcoholism and your tendency , which seems to be increasing , to commit offences of this nature . ”

On DATE the applicant was released from custody on licence , having served CARDINAL his sentence of DATE . He was released to ORG where he was under the supervision of PERSON , a probation officer .

On DATE the applicant was recalled to prison for breach of his licence provisions . The applicant received his recall pack , containing the reasons for his recall , DATE after his recall . The reasons given were that he had breached his licence conditions by continuing to drink excessively ; failing to attend a programme designed to address his behaviour , and by grabbing a female worker 's arm and pulling her as well as generally making inappropriate comments of a sexual nature . The applicant challenged the bases for his recall stating that they were factually incorrect and instructed solicitors , PERSON , to represent him at ORG hearing set for DATE , DATE after he was re - detained .

From DATE to DATE the applicant 's solicitors contacted both ORG at ORG and ORG asking for disclosure ; there was little response .

On DATE the applicant 's oral hearing in front of ORG was deferred at his request because the statement of PERSON ( the female whose arm the applicant is alleged to have grabbed ) had been served on them that morning which not only mentioned a further witness to the assault , PERSON , but was also incorrect as to a material fact .

DATE and DATE ( the date of the deferred hearing ) requests for disclosure continued and , in DATE , produced the following statements : PERSON , a probation officer ; PERSON , a fellow sexual offender who witnessed the inappropriate comments ; PERSON ; PERSON ; PERSON , the hostel cook and a further statement from PERSON . Some of the statements were not signed or dated , and although a further witness PERSON came to light no evidence was forthcoming in response to requests . The applicant 's solicitors asked that some witnesses be called to give oral evidence , including PERSON ; in particular they asked that PERSON be called and that they be furnished with a list of his previous convictions . They received no response .

On DATE an oral hearing took place in front of a Panel of ORG . PERSON and PERSON were present as witnesses with PERSON standing - in for PERSON who was ill . The applicant decided to proceed nonetheless because he had already been detained for DATE .

On DATE ORG decided that the applicant should remain in custody . The decision was communicated to the applicant 's solicitors on DATE . The reasons given for the decision were :

“ CARDINAL . The panel considered all of the documents before it together with the evidence of the probation hostel manager , Mr PERSON , the evidence of PERSON , Senior Probation Officer , Assistant Probation Hostel Manager PERSON , the submissions by PERSON on behalf of the Secretary of ORG . You elected not to give evidence . ...

The panel was satisfied on the evidence before it that you have been reluctant or unable to comply fully with the conditions and restrictions placed on you in that , despite a formal warning and a final warning , you continued to drink excessively resulting on occasions in your admission to hospital and you have not complied with your licence conditions to address your alcohol - related offending behaviour .

The panel also accepts on a balance of probabilities that you did make comments of a sexual nature about a female hostel worker and that on DATE you did grab the arm of PERSON and pulled her towards you in a manner which she reported as feeling like a sexual act to her . The panel regards these actions as highly inappropriate and underline a serious lack of insight and judgment . The panel also noted that you failed to return to your hostel on a number of occasions by the curfew time .

The panel had regard to reports of ongoing concerns at your lack of motivation to address your alcohol and sexual - related offending behaviour and also noted the entrenched nature of your alcohol abuse which you yourself are reported to have described as having consumed your life . The panel further noted your description that your abuse of alcohol is the root cause of all your problems including your sexually abusive behaviour . ...

It is stated that you were refused admission to an ASRO programme meeting because you arrived in an inebriated state . You yourself accepted that you had been drinking . ...

Your index offences , the breaches of your licence , your inability to avoid excessive alcohol consumption when back in the community , the inappropriate sexual comments and grabbing PERSON arm , the need for you to start to undertake work on your alcohol and sexual - related offending behaviour all indicate to the panel that you continue to present considerable risk of harm to the public and especially young males and females . ... ”

The applicant 's solicitors instructed counsel concerning the possibility of seeking judicial review of the decision of ORG . The applicant stated that counsel advised that there was no merit in any claim .

Where a defendant falls to be sentenced for a violent or sexual offence the courts have the power to impose what is termed an “ extended - sentence ” provided by LAW of ORG now re - enacted in identical terms by CARDINAL of the Powers of ORG ) which reads ( so far as material ) as follows :

“ CARDINAL . ( CARDINAL ) This section applies where a court which proposes to impose a custodial sentence for a sexual or violent offence considers that the period ( if any ) for which the offender would , apart from this section , be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation .

( CARDINAL ) ORG to subsections ( CARDINAL ) to ( CARDINAL ) below , the court may pass on the offender an extended sentence , that is to say , a custodial sentence the term of which is equal to the aggregate of -

( a ) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ( “ the custodial term ” ) ; and

( b ) a further period ( “ the extension period ” ) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection(CARDINAL ) above .

( CARDINAL ) The extension period shall not exceed -

( a ) DATE in the case of a sexual offence ; and

( b ) DATE in the case of a violent offence .

( CARDINAL ) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence . ”

Release and recall of prisoners on licence is governed by Part III of the Criminal Justice Act DATE :

– release of prisoners on licence ( section CARDINAL ) ;

– recall of offenders sentenced to extended - sentences ( section DATE ) .

Prisoners , once released on licence , are liable to recall by the Secretary of ORG , either with a recommendation by ORG or , if it seems expedient in the public interest to recall the prisoner before such a recommendation is practicable , by the Secretary of ORG alone . ORG and the Secretary of ORG will normally exercise this power of recall following a recommendation by ORG responsible for the prisoner 's supervision ; it is not necessary for the prisoner to have committed an offence .

Review of the decision to recall is carried out by ORG . Where a prisoner is recalled by the Secretary of ORG without a recommendation by ORG , the Secretary of ORG must refer him to ORG . A prisoner serving an extended - sentence has the right to require the Secretary of ORG to refer his case to ORG upon recall : s. CARDINALA of LAW ( inserted by LAW ) . GPE the prisoner is entitled to DATE reviews of detention .

ORG is required to sit in a judicial capacity when hearing representations concerning recall decisions . An extended - sentence prisoner has no right to an oral hearing ; ORG retains discretion over the nature of the review they conduct . The common practice is that the representations will be considered on paper except where ORG are of the opinion that there are crucial issues which require an oral hearing . Nevertheless ORG advised ORG that they intended to implement oral hearings in the case of extended - sentence prisoners , bearing in mind that an extended - sentence prisoner who is recalled faces a much longer period in custody than an ordinary determinate sentence prisoner .

On DATE , in The Queen ( on the application of PERSON ) v. ORG and the Secretary of ORG for ORG ( DATE EWCA Civ DATE ) ORG considered the recall of a prisoner who had been sentenced to an extended - sentence and recalled to prison after release on licence due to alleged breaches of his licence and inappropriate conduct involving alcohol . Lord Justice PERSON held , firstly , that LAW applied to decisions relative to recall and continued detention :

“ CARDINAL . In short , when an offender is detained during the extension period of CARDINAL sentence , such detention must be subject to review by a judicial body . No court has ordered his detention during that period : prima facie the sentencing court took the view that he could be dealt with in the community during that period . ... In cases of extended sentences under LAW , it is the executive which decides upon an offender 's recall during the extension period , and because that detention has not been ordered by a court it must be supervised by a judicial body . Otherwise there is a danger of an arbitrary decision being made by the executive . As it happens it is so supervised , because section CARDINALA of the CARDINAL Act so provides through the mechanism of ORG ... ”

Secondly , he found that it was inconsistent with the LAW to place any burden of proof as to lack of dangerousness on the prisoner and held that section CARDINALA(CARDINAL ) of LAW DATE must be construed so that ORG was obliged to conclude that it was no longer necessary to detain the recalled prisoner unless the ORG were positively satisfied that the interests of the public require that he should be confined .

Thirdly , he concluded that ORG was entitled to consider hearsay evidence . While Article CARDINAL case - law referred to the necessity of oral hearings , it did not require that there should as a matter of course be cross - examination of witnesses to establish facts on which the ORG relied . Fairness would sometimes require this , however , and ORG had to take account of the extent to which allegations are disputed , and bear in mind the extent to which they have been fully tested in cross - examination , when deciding what weight to give to these factors . In the circumstances of the instant case , he found that the lack of possibility to cross - examine witnesses on certain disputed aspects of the applicant 's conduct was not unfair where ORG heard the applicant himself and the disputed matters were not key factors in their decision as to the risk which he presented .

Section CARDINAL ) of the LAW provides :

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


Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

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

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

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

NORP In DATE LAW ( GPE degli PERSON – “ the CA ” ) , an administrative authority responsible for auditing tax declarations , sought to ascertain the correctness of the income declared by the applicant for DATE . By an assessment dated DATE it found that the applicant had failed to declare an additional sum of MONEY ( MONEY ( ORG ) ) . It therefore ordered the applicant to pay tax on the aforementioned amount plus interest , and the sanction established by LAW no . CARDINAL/CARDINAL equal to the amount of tax payable on the additional amount of undeclared income .

The applicant appealed against the decision before ORG ( ORG – “ the ORG ” ) , an administrative body of contentious jurisdiction in fiscal matters , on the basis that he had been unable to make submissions to the CA , notwithstanding a request to that effect . On DATE the ORG upheld the applicant ’s appeal , declared the CA ’s findings inadequate and proceeded with a new tax assessment . It concluded that the applicant had to pay income tax on the higher ( unspecified ) amount , together with interest on that amount and the sanction established by CARDINAL of PERSON no . CARDINAL/CARDINAL in an amount equal to QUANTITY of the amount of tax payable on the additional income . This amounted to EUR CARDINAL in tax on the higher amount of income and a sanction amounting to ORG .

On DATE the applicant instituted proceedings before the ordinary courts , asking the judge ( Commissario della legge ) to declare the ORG ’s findings null and void on the basis , inter alia , that the decision had been ultra vires , as the ORG did not have the competence to proceed with the new tax assessment .

By a judgment of DATE the applicant ’s appeal was dismissed . However , having authority to look at all the reasons which could make a decision illegitimate , namely jurisdictional competence , an incorrect application of the law and acting ultra vires , the PERSON della legge declared the ORG ’s decision null and void on the grounds that the latter had wrongly upheld the argument that the applicant ’s submissions should have been heard . The case was remitted to the ORG for fresh consideration .

The applicant lodged an administrative appeal on DATE and by a decision of CARDINAL DATE , published on DATE , the administrative appeal judge quashed the first - instance court ’s decision and upheld the appeal . It considered that the ORG ’s decision had been null and void on grounds of non ultra petita , the latter not having had the competence to assess the matter but rather having been under the obligation to send it back to the CA . The administrative appeal judge remitted the case to the CA .

None of the parties having appealed against the judgment , it became final .

The remittal of the case required proceedings to be restarted before the CA . Despite a question to that effect , neither the applicant nor the Government have informed ORG progress of those proceedings following the lodging of the application in DATE .

Section CARDINAL of Law no . CARDINAL/CARDINAL ( “ the LAW ” ) , in so far as relevant , reads as follows :

“ The Personal Income Assessment Committee is the competent authority for the auditing of income received by physical persons and the imposition of any eventual administrative sanctions . ”

Section CARDINAL(CARDINAL ) of the PERSON provides that ORG is competent to rectify errors committed by ORG . Section CARDINAL(CARDINAL ) of the PERSON provides that a decision of ORG can be challenged before the ordinary courts on the basis of a violation or incorrect application of the law , lack of competence or abuse of power .

Section CARDINAL of the PERSON , regarding omission , incompleteness and false declarations , in so far as relevant , reads as follows :

“ If the declaration does not contain one or more assets from which income is derived , the monetary penalty may vary DATE and twice the amount of the tax due and the tax owed in respect of the income received from the undeclared assets .

... [ I]f , save for the above - mentioned provisions , an individual has declared a net income below that assessed , the penalty applicable may vary DATE and twice the amount of the tax due in respect of the undeclared amount . The sanction is increased by DATE if the difference between the assessed income and that declared includes income received from abroad , and is halved if the tax due in respect of the undeclared amount is CARDINAL of that assessed . ...

No administrative sanction is applicable if the taxpayer has committed a material error or omission or falsity in his or her declaration where there was no criminal intent ( dolo ) , in so far as well - founded reasons are presented . ”


PERSON , a commercial traveller of NORP nationality , resided at PERSON ( GPE ) at the material time .

On DATE the applicant arrived at GPE airport from GPE . The customs officers found QUANTITY of heroin in the suitcase of another passenger on the same flight , PERSON When asked whether he had been travelling with someone else , the latter pointed out the applicant . PERSON explained that they were both part of a group ; he was searched and , when nothing was found , released .

After further investigations , he was none the less suspected of being linked to PERSON , as a result of which he was arrested on DATE at GPE , on the train on which he was returning to GPE .

Mr Imbrioscia immediately sought the help of PERSON , who contacted a lawyer , PERSON

On DATE the applicant was questioned by the GPE district prosecutor ( GPE ) with the assistance of an interpreter . He stated that he had caught the plane at GPE because it was the cheapest way of travelling to GPE . By pure coincidence another person had also bought a ticket at PERSON for the same flight , but they had never sat next to each other during the trip . In addition , he denied that he had been involved in importing drugs into GPE . When he was advised that he was being remanded in custody , he requested that a lawyer be assigned to him as he did not know any lawyers in GPE .

He remained in custody in the building of the GPE district prosecutor ’s department .

On DATE PERSON wrote to Mr Imbrioscia offering to represent him . He returned the necessary authority to act to her after signing it .

On CARDINAL and CARDINAL DATE the police interrogated him without his lawyer being present .

On DATE he was questioned by a GPE district prosecutor and he asked to be confronted with PERSON , in order to prove his innocence .

On DATE PERSON withdrew as the applicant ’s lawyer . The available documents do not show to what extent she had participated in his defence , but it is apparent from the prison register that she never visited him .

On DATE Mr PERSON was officially assigned to act for Mr Imbrioscia and on DATE was given permission to visit him , which he did for the first time on DATE . On CARDINAL DATE the case file that had been sent to him for inspection on DATE was returned by him to the district prosecutor ’s office .

Mr Imbrioscia was questioned again by the district prosecutor on DATE . PERSON had not been invited to attend the interview and does not seem to have asked to be present , but he received a transcript of it . On DATE he visited the applicant .

On CARDINAL and DATE the district prosecutor and QUANTITY police officers went to PERSON to examine several witnesses , including CARDINAL travel agents .

On DATE Mr Imbrioscia ’s lawyer had a conversation with the district prosecutor , the subject of which is a matter of dispute . According to the judgment delivered by ORG ) on DATE ( see paragraphs CARDINAL - CARDINAL below ) , the district prosecutor told the lawyer that his client would be questioned again on DATE . Mr PERSON denies this and claims that the discussion centred on the applicant ’s detention .

In any event , he was not present on DATE when PERSON was questioned about the inconsistencies in his statements and disputed the findings of the inquiries made in GPE .

By a letter of CARDINAL DATE Mr PERSON acknowledged receipt of the transcripts of the ORG statements in PERSON and of the questioning on DATE ( see paragraphs CARDINAL and DATE above ) , and complained that he had not been invited to attend . He visited Mr Imbrioscia DATE .

Mr PERSON was , on the other hand , present on DATE when the applicant was informed that the preliminary investigation had been concluded and that he faced possible charges of heroin smuggling and forgery . Mr PERSON stated that he had had nothing to do with the matters of which he was accused under the first head and that he had acted in good faith as regards the second . His lawyer remained silent .

On DATE the district prosecutor ’s office committed Mr Imbrioscia and PERSON for trial in LOC ( Bezirksgericht ) for drug trafficking .

On DATE Mr PERSON visited his client in prison .

At the hearing on DATE the CARDINAL accused were again questioned about the facts , and their counsel made their submissions . PERSON also examined M.

The court convicted the applicant and his co - defendant of offences against the dangerous drugs legislation ( Betäubungsmittelgesetz ) . It sentenced Mr Imbrioscia to DATE imprisonment and banned him from residing in GPE for DATE ; his co - defendant was given a DATE prison sentence . The defendants were each ordered to pay CARDINAL the costs of the proceedings .

The court noted that the applicant had contradicted himself on several occasions - as to whether he knew PERSON first name and surname , whether he had sat next to him in the aeroplane and so on . Having regard to these inconsistencies , it considered that the accused ’s claim that he was innocent could no longer be taken seriously ( nicht mehr ernstgenommen werden kann ) .

PERSON , who was illiterate , had also made such contradictory statements that there were doubts as to his mental capacity ; he could not therefore be regarded as having been the organiser of the drug smuggling . On the last occasion he was questioned , on CARDINAL DATE , he had moreover stated that his co - defendant had been with him continuously and had told him when he should take delivery of the suitcase . Mr PERSON ’s role had therefore been to assist and supervise M.

The court found that the applicant had knowingly and willingly participated in committing the offence .

On DATE , after a hearing during which Mr Imbrioscia was again questioned by the judges , in Mr PERSON ’s presence , ORG ( Obergericht ) dismissed his appeal ( GPE ) . It upheld the sentence imposed by ORG ( see paragraph CARDINAL above ) and in addition ordered the applicant to pay the costs of the appeal proceedings .

As regards his lawyer ’s absence during the interviews it observed that the lawyer had been informed of DATE but had not attended , and that he had not put any questions at the last interview on DATE , which he had attended ( see paragraph CARDINAL above ) . Nor had the appellant shown how his defence had been adversely affected .

On the merits , the court followed the trial court ’s reasoning ; it considered it scarcely plausible that CARDINAL people who did not know each other should have travelled together from GPE to GPE and back via GPE and have stayed in GPE in the same hotel .

An application by PERSON to ORG ( Kassationsgericht ) for a declaration of nullity ( PERSON ) was dismissed on DATE .

With regard to the complaint based on the fact that no lawyer was present at the interviews , ORG referred to the case - law of ORG ( see paragraph CARDINAL below ) . The applicant had not alleged that he had asked to have his lawyer present and that his request had been rejected on irrelevant grounds ( unsachliche GPE ) ; his lawyer had , moreover , attended the interview on DATE and the hearing on DATE ( see paragraphs DATE and DATE above ) .

On CARDINAL DATE ORG dismissed a public - law appeal by the applicant against the judgments of CARDINAL DATE and DATE ( see paragraphs CARDINAL above ) .

ORG referred to its case - law concerning LAW para . CARDINAL of LAW of the GPE of GPE ( see paragraph CARDINAL below ) . It stressed that Mr Imbrioscia had not complained that a request to have his lawyer present had been arbitrarily rejected ; the lawyer had attended the last questioning and had been sent the transcripts of the previous ones . There had therefore been no infringement of the defence rights guaranteed to Mr Imbrioscia under LAW and the Convention .

At the material time LAW was worded as follows :

" During the investigation counsel for the defence must be granted access to the file in so far as the purposes of the investigation are not thereby jeopardised . He can not be refused the right to inspect reports by experts or transcripts of interviews at which he is entitled to be present .

The investigating law officer may give counsel leave to attend personal interviews with the person charged .

Once the investigation is concluded , counsel for the defence shall have unrestricted access to the file . "

According to ORG case - law , the second paragraph of this provision permits the prosecuting authorities to refuse to allow a lawyer to be present on the first occasion when a suspect is questioned without giving reasons , but requires them to give reasons if they intend to exclude the lawyer from subsequent interviews .

The practice in GPE is that the lawyer does not generally attend when his client is interrogated by the police , but he is usually sent the transcripts .

The first CARDINAL paragraphs of the LAW cited above were amended on DATE and now provide :

" During the investigation access to the file must be granted to the person charged and to his defence counsel on request , if and in so far as the purposes of the investigation are in no way thereby jeopardised . The right to inspect documents already communicated to the person charged as well as experts’ reports and the transcripts of investigation interviews which counsel for the defence has been given leave to attend can not be refused .

The investigating law officer must give counsel for the defence an opportunity to attend examinations of the person charged if the latter so wishes and if the purposes of the investigation are not likely to be jeopardised . Members of the cantonal Bar must be admitted to examinations once the person charged has made his first statement to the investigating law officer or if he has been in custody for DATE . A defence counsel who attends an examination must be able to put questions to the person charged that are likely to throw light on the case . "


CASE OF L'ÉRABLIÈRE A.S.B.L. v. BELGIUM [Extracts]

Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Civil rights and obligations);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

Members of the applicant association include its founding members and any person admitted by a simple majority of the general meeting or by CARDINAL majority of the administrative board . The published list of the applicant association ’s founding members and administrators shows that they all reside in the above - mentioned municipalities .

On DATE GPE , a cooperative society , applied to the delegated official of the province of GPE for planning permission to expand the class CARDINAL and CARDINAL technical landfill site at “ LOC ” . An increase of CARDINAL of the site ’s original capacity was sought . The preamble to the planning permission set out all the circumstances leading to its approval .

On DATE the municipality of PERSON wrote to the applicant association informing it that GPE had been granted planning permission on DATE and that the applicant association could apply to the ORG d’Etat for judicial review .

On DATE the applicant association lodged an application for judicial review of the decision of the delegated official and requested that it be stayed . The applicant association based its arguments primarily on instruments such as ORG Directive CARDINAL/CARDINAL/EEC of DATE on the assessment of the effects of certain public and private projects on the environment , ORG CARDINAL/CARDINAL/EC of DATE on the landfill of waste , the decree of CARDINAL DATE on environmental impact assessment in GPE and LAW of DATE .

In that application , which was CARDINAL pages long , the applicant association stated as follows under the heading “ The facts ” :

“ The statement of facts is set out in sufficient detail in the reasons for the impugned decision . The impugned decision was notified to the applicant in a letter of DATE , which was received on DATE . ”

The impugned decision was attached to the application for judicial review as exhibit no . CARDINAL .

Relying on LAW ( CARDINAL ) of the Regent ’s decree of CARDINAL DATE laying down the rules of procedure in ORG of the ORG d’Etat , the opposing party argued that the application for judicial review should be declared inadmissible because it did not include a statement of the facts .

By an order of DATE , the ORG d’Etat dismissed the request for the impugned decision to be stayed . It pointed out that the statement of the facts should have been sufficiently thorough and accurate for the factual circumstances of the dispute to be understood merely from reading that document . It concluded that the documents attached to the request for the decision to be stayed could not be deemed to equate to a statement of the facts .

In its pleadings in reply , and in its final pleadings , the applicant association argued that in the context of an application for judicial review , the statement of the facts did not constitute an admissibility criterion , unlike the statement of the facts in the request for the decision to be stayed . It added that the very short statement of the facts did not compromise the conduct of the proceedings since the opposing party was well aware of the facts , had not misunderstood the scope of the submissions and was familiar with the facts constituting the basis thereof .

By a judgment of DATE , the ORG d’Etat declared the applicant association ’s application for judicial review inadmissible . It considered that because the application did not contain a statement of the facts , it simply referred back to the impugned decision and contained a clarification as to the date of its notification . The statement of the facts , as submitted by the applicant association , was non - existent rather than incomplete . The fact that the opposing party might have been familiar with the background to the case was irrelevant in assessing whether or not the application for judicial review , which was supposed to provide the ORG d’Etat and the legal adviser ( auditeur ) responsible for investigating the case with sufficient information , contained a statement of the facts satisfying the official requirements . Lastly , the ORG d’Etat noted that no new or additional applications and no procedural documents had subsequently been filed within the statutory time - limits to rectify the omissions in the application for judicial review .

The PERSON d’Etat had dealt with an earlier application for planning permission concerning the same subject in a judgment of DATE on an urgent application and in a judgment of CARDINAL DATE on the merits , delivered by the same judges who had delivered the judgment of CARDINAL DATE . The legal adviser in all CARDINAL cases had been the same .


O`LOUGHLIN AND OTHERS v. THE UNITED KINGDOM

The applicants are , save for certain relatives of PERSON who are NORP citizens , NORP nationals and represented by PERSON , a solicitor practising in GPE . They are relatives of persons who were killed , or victims themselves of injuries caused , by bomb explosions in GPE and GPE . The names and details of the applicants are contained in the case - file .

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

On DATE , CARDINAL car bombs exploded without warning in GPE , killing CARDINAL people and injuring over CARDINAL . At TIME , CARDINAL car bombs exploded within TIME of each other at CARDINAL locations in GPE , namely FAC , FAC and FAC . The fourth car bomb exploded TIME in GPE .

The NORP authorities conducted extensive investigations . It was discovered that the cars used for the bombing were stolen in GPE DATE . ORG ( ORG ) conducted an investigation into the theft of the cars and related offences which did not produce any result . No murder inquiry was begun in GPE . Authorities on both sides of the border held suspicions that the events were carried out by loyalist paramilitaries .

In DATE , ORG broadcast a documentary “ Hidden Hand – the Forgotten Masssacre " which raised concerns as to whether elements of the GPE security forces were involved in the bombings . It alleged that the bombers included not CARDINAL suspects ( members of the ORG including PERSON and PERSON ) but named in addition CARDINAL planners , PERSON , PERSON and a loyalist killer known as the PERSON , not named for legal reasons , all of whom were former or serving members of the ORG . It was suggested that despite much early information in the investigation , the trail ran cold at ORG headquarters in GPE . Enquiries into suspects had to be made through the ORG who did not report back . There was no evidence that the ORG had ever bothered to question or arrest the suspects . The programme included interviews inter alia with PERSON , an army officer who had in DATE been working undercover for ORG and MICARDINAL , PERSON , a senior army information officer in DATE and various explosives experts and suggested that the organising of the GPE bombings had been beyond the limited loyalist expertise at the time and that they must have had assistance . It was further suggested that military intelligence had infiltrated the loyalist structures , that certain loyalists were working closely with intelligence in operations including acts of cross - border terrorism and that some of the explosive used in the GPE bombings had been provided from security force sources

Following the programme , relatives of the victims obtained from the NORP Minister of ORG a commitment that the PERSON investigation into the bombings would be reviewed and any new evidence referred to in the documentary would be examined . In the PERSON investigation which followed , police obtained the co - operation of the ORG and attended interviews of suspects in GPE , including PERSON , PERSON and PERSON . Interviews were also conducted with PERSON and PERSON but they declined to make a statement and did not offer any evidence to support the allegations made during the programme .

On DATE , ORG issued a press release setting out conclusions reached in the review . It cast doubt on the credibility of the documentary .

In DATE , the relatives obtained the services of a solicitor and counsel , who reviewed the material and advised that there was insufficient evidence of any allegation of ORG wrongdoing to be advanced in respect of the bombings themselves . They advised that further evidence would have to be obtained and that such evidence could only be obtained by some form of public inquiry . They also advised that there was sufficient basis to lodge a complaint with ORG that the ORG had failed to conduct a murder inquiry into matters connected with the bombings in GPE and GPE . An application , no . CARDINAL , PERSON the GPE brought by CARDINAL of the relatives of the victims was rejected by ORG on DATE for failure to comply with DATE time - limit ( that is , the complaint had not been introduced within DATE of the programme which had made the applicant aware of the alleged failure of the GPE authorities to co - operate with the NORP authorities’ inquiry ) .

On DATE , ORG appointed a ORG whose terms of reference included considerations of the needs and concerns of victims of major outrages including those of the GPE and GPE bombings . In DATE , ORG recommended a private judicial inquiry .

In DATE , allegations by PERSON , a former ORG who had served DATE in prison for the murder of PERSON , were made public . He named persons allegedly involved in bombings and shootings , including the GPE and GPE bombings and suggested that collusion between loyalist paramilitaries and certain elements in the security forces was taking place in DATE . NORP police officers interviewed him in DATE and he made a statement .

In DATE , ORG agreed to establish a non - statutory ORG . Mr Justice PERSON was eventually appointed to head the inquiry and issue a report to the Government , after which a committee of ORG would decide whether any further steps should be taken . The inquiry was informal , did not sit in public and had no legal powers .

In DATE , the inquiry report ( " ORG " ) was made public . The inquiry had heard evidence , inter alia , from PERSON , PERSON , PERSON and NORP police officers involved in the investigations . PERSON named PERSON as the main organiser of the bombings and had claimed that explosives for all CARDINAL bombs had been supplied by a named ORG officer . ORG had also named PERSON , a ORG officer , as assembling the GPE bombs . He did not claim that ORG or intelligence contacts assisted PERSON and PERSON in planning the bombings . Written evidence before the inquiry included materials from the ORG who had carried out a number of interviews at the request of the NORP police , including PERSON , a constable in ORG who owned the farm allegedly central to the activities of the group named by PERSON , ORG and the ORG officer named by ORG as supplying explosives . They had all rejected the allegations .

In his statement to ORG of ORG , Mr Justice PERSON stated that the inquiry was satisfied that it had received all relevant documentation from sources within the ORG . As regarded elsewhere , he noted that from the early stages the inquiry had received assurances of co - operation from ORG and ORG ( GPE ) . From its dealings with the ORG / ORG , the ORG had received a considerable amount of information , including records of the questioning in DATE of ORG officers suspected of participating in attacks on NORP civilians as well as ballistics evidence . There had been considerable delay in obtaining information from the Secretary of ORG for GPE . The inquiry was told that this was because there were CARDINAL files of possible relevance in ORG alone , while files in ORG could be counted in the CARDINAL . The teams examining these files were stated to have finished at DATE . On DATE , a CARDINAL page letter was sent by the Secretary of ORG containing the promised information . An appendix of CARDINAL pages gave details of the structure and control of intelligence gathering at the relevant time . No copies of original documents had been provided . Further requests for specific information did produce some additional information in a similar form .

" Correspondence with ORG undoubtedly produced some useful information ; but its value was reduced by reluctance to make original documents available and the refusal to make other information available on security grounds . While the Inquiry fully understands the position taken by ORG on these matters , it must be said that the scope of this report is limited as a result . "

The inquiry summarised its conclusions as follows :

" The facts , circumstances , causes and perpetrators of the bombs :

The GPE and GPE bombings were carried out by CARDINAL groups of loyalist paramilitaries , CARDINAL based in GPE and the other in the area around GPE / GPE . Most , though not all of those involved were members of the ORG ( ORG ) . It is likely that the bombings were conceived and planned in GPE , with the ORG element providing operational assistance .

The bombings were primarily a reaction to LAW in particular to the prospect of a greater role for ORG in the administration of GPE – though there were other specific events in DATE and DATE which might have influenced the attacks .

The loyalist groups who carried out the bombings in GPE were capable of doing so without help from any section of the security forces in GPE , though this does not rule out the involvement of individual ORG , GPE or NORP army members . The GPE bombing in particular bears all the hallmarks of a standard loyalist operation and required no assistance .

It is likely that PERSON at GPE played a significant part in the preparation for the attacks . It is also likely that members of the FAC and ORG either participated in , or were aware of those preparations .

The nature , extent and adequacy of the PERSON investigation , including the co - operation with and from the relevant authorities in GPE and the handling of evidence , including the scientific analyses of forensic evidence :

The PERSON investigation failed to make full use of the information which it obtained . Certain lines of inquiry that could have been pursued in this jurisdiction were not pursued . There were other matters , including the questioning of suspects , in which the assistance of the ORG should have been requested , but was not .

The ORG was not equipped to conduct an adequate forensic analysis of the explosions . This was because the importance of the preservation , prompt collection and analysis was not appreciated . The effect of this was that potentially vital clues were lost .

Although the investigation teams had in their opinion no evidence upon which to found a prosecution , there is no evidence that they sought the advice of the Attorney General , in whose name criminal prosecutions were at that time still being brought . Had the Attorney General reviewed the file , it is likely that advice would have been given as to what further direction the investigation might take .

The reasons why no prosecution took place , including whether and if so , by whom and to what extent the investigations were impeded :

A number of those suspected for the bombings were reliably said to have had relationships with ORG and/or ORG Special Branch officers . It is reasonable to assume that exchanges of information took place . It is therefore possible that the assistance provided to the PERSON investigation team by the security forces in GPE was affected by a reluctance to compromise those relationships , in the interests of securing further information in the future . But any such conclusion would require very cogent evidence . No such evidence is in the possession of the Inquiry . There remains a deep suspicion that the investigation into the bombings was hampered by such factors , but it can not be put further than that .

There is evidence which shows that the informal exchange of information between the PERSON on the border and their ORG counterparts was extensive . There is some evidence to suggest that some PERSON officers , unwittingly or otherwise , may have been giving information to the members of ORG . The ORG has found no evidence to support the proposition that such exchanges in some way facilitated the passage of the GPE and GPE bombers across the border . Similarly , no basis has been found for concluding that the PERSON investigation was in any way inhibited because of a fear of exposing such links .

The Inquiry has examined allegations that the PERSON investigation was wound down as a result of political interference . No evidence was found to support that proposition . However , it can be said that the Government of DATE showed little interest in the bombings . When information was given to them suggesting that the NORP authorities had intelligence naming the bombers , this was not followed up . Any follow - up was limited to complaints by the Minister for ORG that those involved had been released from internment .

The issues raised by the ‘ Hidden Hand’ TV . documentary broadcast in DATE :

There is no evidence that any branch of the security forces knew in advance that the bombings were about to take place . This has been reiterated by the current Secretary of ORG for GPE and is accepted by the Inquiry . If they did know , it is unlikely that there would be any official records . Such knowledge would not have been written down ; or if it was , would not have been in any files made available to the Secretary of ORG . There is evidence that the Secretary of ORG of the day was not fully informed on matters of which he should have been made aware . On that basis , it is equally probable that similarly sensitive information might be withheld from the present holder of that office .

The Inquiry believes that within a short time of the bombings taking place , the security forces in GPE had good intelligence to suggest who was responsible . An example of this could be the unknown intelligence that led ORG sources to tell their ORG counterparts that CARDINAL of the bombers had been arrested on CARDINAL May and detained . Unfortunately , the Inquiry has been unable to discover the nature of this and other intelligence available to the security forces in GPE at that time .

As is made clear in the ORG , there are grounds for suspecting that the bombers may have had assistance from members of the security forces . The involvement of individual members in such an activity does not of itself mean the bombings were either officially or unofficially state - sanctioned . If CARDINAL accepts that some people were involved , they may well have been acting on their own initiative . Ultimately , a finding that there was collusion between the perpetrators and the authorities in GPE is a matter of inference . On some occasions an inference is irresistible or can be drawn as a matter of probability . Here , it is the view of the Inquiry that this inference is not sufficiently strong . It does not follow even as a matter of probability . Unless further information comes to hand , such involvement must remain a suspicion . It is not proven . "

In DATE , hearings on the report took place before ORG of ORG on ORG , ORG Women ’s Rights . ORG issued its final report on DATE , making a number of recommendations , inter alia , that ORG be set up in respect of identified concerns about the PERSON investigation ( the reason it was wound down in DATE and did not pursue certain leads ) and missing documentation from police , intelligence and ORG files . As regarded external issues of collusion , the ORG noted that PERSON Justice PERSON had requested assistance from the GPE and GPE authorities and that he was furnished with a CARDINAL page summary of any relevant information on the GPE and GPE bombings which had resulted from a trawl of their files . ORG had invited former and current ministers and officers from GPE and GPE to make oral or written submissions to elaborate on this document and any other relevant matters but these invitations were declined . It stated :

" ORG wishes to express its grave disappointment at the response received to these invitations . An examination of GPE and GPE records from the time in question would be necessary for any examination of this area . However , neither the ORG nor Mr Justice PERSON were afforded the co - operation which the gravity of the atrocity required . ”

It took the view that the information received by it had reinforced suspicion of collusion between security forces and loyalist groups in GPE and that further extensive investigation was required . It noted the self - evident problems that arose since potentially relevant information and witnesses were outside the jurisdiction and access to these sources in GPE and GPE were vital . It concluded that a Public Tribunal of Inquiry in GPE or GPE was required , presided over by a judge of international standing and with powers to summon witnesses and compel disclosure of documents , and that in the event of a lack of co - operation from GPE in that respect ORG should consider instituting proceedings before the ORG in GPE .

Meanwhile , the lawyers acting for the relatives in " Justice for the Forgotten " discovered that the inquests into the death of those who had died in the bombings in DATE had been adjourned . In DATE the GPE agreed that the inquests should proceed once the inquiry report had issued . The inquests took place in DATE and issued findings of unlawful killing .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a sentence of CARDINAL imprisonment . ORG ( “ the Government ” ) were represented by PERSON and PERSON , former ORG and former acting Representative of GPE at ORG respectively .

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

On DATE the applicant was arrested on suspicion of rape and remanded in custody .

On DATE the ORG convicted the applicant of rape and sentenced him to DATE imprisonment .

On DATE the applicant was transferred to correctional colony IKCARDINAL of ORG , LOC ( ORG ИК-CARDINAL PERSON по PERSON области ) to serve his sentence . The parties submitted the following accounts of conditions in IKCARDINAL .

The applicant was held in units nos . CARDINAL and CARDINAL of the correctional colony . On several occasions he was also held in punishment units nos . CARDINAL and CARDINAL of the disciplinary unit .

Unit no . CARDINAL was a dormitory which measured QUANTITY m , including a sleeping area of CARDINAL sq . m , a canteen and a sanitary unit . Unit no . CARDINAL was a dormitory measuring QUANTITY m and including a sleeping area of CARDINAL sq . m , a canteen , a washroom and a toilet . Unit no . CARDINAL housed from CARDINAL inmates , and unit no . CARDINAL housed from CARDINAL inmates . During the daytime the applicant could move freely within the unit ’s local zone .

Punishment units nos . CARDINAL and CARDINAL measured CARDINAL and QUANTITY . m respectively . They housed respectively CARDINAL inmates including the applicant . Since the applicant was engaged in labour he spent most of the day outside the unit . He could also take TIME outside walks after work .

The windows of the punishment units measured CARDINAL by QUANTITY , and the windows of the dormitories measured CARDINAL by QUANTITY They were not covered with metal blinds and had no other arrangements preventing the access of daylight .

All premises were equipped with CARDINAL filament lamps and CARDINAL security lights .

The punishment units , bathhouse and canteen were equipped with natural and extractor ventilation . The sleeping areas of the units had natural ventilation .

All premises were sufficiently heated . The average temperature in the sleeping areas of the units was maintained at QUANTITY , and in the punishment units at QUANTITY .

The punishment units were equipped with lavatories separated from the living area by QUANTITY . The dormitories were equipped with lavatory rooms equipped with cold and hot water taps and lavatory booths separated from one another by QUANTITY .

The applicant had at all times been provided with an individual bed and bedding ( a mattress , a blanket , a pillow , CARDINAL bed sheets and a pillow slip ) .

The applicant could take a shower once DATE . He was given food in accordance with the established norms . The quality of the food was monitored on a regular basis by the medical staff of the facility . The applicant could receive food parcels from relatives and buy food at the facility ’s shop .

The punishment units were equipped with dining tables and benches , and the dormitories had canteens where the inmates took their meals .

Regular disinfections and disinfestations were carried out in the facility .

Punishment unit no . CARDINAL was half the size indicated by the Government and housed CARDINAL inmates . Unit no . CARDINAL was shared by CARDINAL inmates . The artificial lighting in the colony ’s LOC was insufficient and often non - existent on account of electricity cuts . The heating was also insufficient . There was no ventilation . The dimensions of the windows indicated by the Government were incorrect . There were no hot water taps in the facility . The food was of poor quality and inadequate in quantity . The bedding was never changed .

On DATE the applicant requested the police to secure his property during his pre - trial detention . On DATE he made the same request to the court .

The court established the following .

The applicant did not indicate any particular individual or legal entity to be entrusted with securing his property . He further refused to have the property secured on a commercial basis . The police made a considerable effort to find a person who would be in the best position to secure the applicant ’s property . In particular , they contacted the applicant ’s brother , the municipal maintenance company and persons identified as P. , PERSON and NORP , but for various reasons the attempts proved unsuccessful .

As a result , on DATE , the applicant ’s property and belongings were entrusted to ORG , a person who lived in the applicant ’s flat with the applicant ’s permission .

Later PERSON disappeared , and the prosecutor ’s office failed to discover his whereabouts .

On an unspecified date the applicant informed the police of his other belongings located in different places . However , the applicant did not provide any documents certifying that he was the owner of the belongings in question . The court established , however , that a person identified as Zh . agreed to keep the applicant ’s car . NORP provided a list of the applicant ’s belongings which were kept at her place , and the applicant did not object to the above persons being left in charge of his belongings .

The final decision was given by ORG on DATE .

LAW of DATE lays down a minimum standard of QUANTITY of personal space for male convicts in correctional colonies .


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

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

On DATE the applicant arrived in GPE from GPE . On DATE he was granted a permanent residence permit . He was not considered to be a refugee but a person “ otherwise in need of protection ” . He was granted NORP citizenship on DATE .

On DATE , PERSON , a woman born in DATE , and CARDINAL children , allegedly born in DATE , DATE , DATE , DATE , DATE and DATE , respectively , applied for residence permits at ORG in GPE , on the grounds that they were the wife and children of the applicant .

PERSON was interviewed at ORG on DATE and DATE . She could not give a precise date of her alleged marriage with the applicant , only that it had been in DATE . No marriage certificate was submitted . She claimed that they had never thought that it was important to have their marriage registered . At the request of the interviewer , PERSON agreed to a bone age test of the CARDINAL eldest children . This test , which was performed by a radiologist at ORG . CARDINAL on DATE , showed that all the children tested were DATE .

In a letter to ORG of DATE , the applicant claimed that his marriage to PERSON had not been registered as the war between GPE and GPE had made it impossible to visit the relevant authorities .

On DATE ORG ( Migrationsverket ) rejected the applications for residence permits . It found that the marriage between the applicant and the woman had not been registered in GPE and considered that the CARDINAL eldest children had to be considerably DATE . Moreover , falsified documents and incorrect statements had been submitted by the woman and the children . ORG referred , inter alia , to their identity cards , all with the same registration and page numbers and containing information which was inconsistent with the claim that the marriage had not been registered . It stated that it could not be ascertained from the information submitted whether the applicant and the woman belonged to the same family , to different families or were in any way related . Noting that it was up to the persons requesting a residence permit to submit full and correct information , ORG concluded that the woman and the children had failed to show that they were related to the applicant .

PERSON and the children appealed to ORG ( Utlänningsnämnden ) . They submitted a marriage certificate , according to which the applicant and the woman had been married on DATE . They argued that there had been a misunderstanding regarding the question whether the marriage had been registered or not ; the applicant and PERSON had only meant that the marriage certificate was missing . Furthermore , the applicant requested that a new bone age test be performed .

On DATE ORG informed the applicant that the NORP authorities would not perform a new bone age test . However , he was invited to pay for a test himself and submit the test results . The applicant subsequently replied that he did not intend to have a new medical investigation performed .

On DATE ORG rejected the appeal . It noted that the applicant and PERSON , during the investigation at ORG , had stated that they had not been able to register their marriage with the NORP authorities due to the war between GPE and GPE . However , in their appeal , they had stated that the marriage had in fact been registered but that they had misunderstood the question put to them and had had the impression that the fact that they did not have a certificate meant that no registration had been made . ORG found their statements contradictory and concluded that the explanation given in the appeal was no more credible than the information given at first instance . It further stated that NORP identity documents had a low value as evidence and , as such , did not prove the identity of the holder . In conclusion , the ORG considered that the documents submitted did not prove the alleged identities and family ties . Moreover , the age of the CARDINAL eldest children had not been confirmed .

On DATE PERSON and the children filed new applications with ORG in GPE . On DATE the ORG held a third interview with her and also briefly interviewed the children . She stated that the marriage certificate had been obtained in DATE but had not been available at the time of her second interview at the ORG . She had not obtained it earlier as the applicant had told her that it was not necessary for the first interview .

On DATE the new applications for residence permits were rejected by ORG , which found that no new circumstances had emerged .

In an appeal to ORG , new documents were submitted , including a certificate issued by ORG in GPE on DATE . The certificate stated that , according to a marital contract issued by ORG , the applicant and PERSON had been married on DATE .

On DATE ORG rejected the appeal . Notwithstanding the certificate from ORG , it found no reason to change its previous decision .

On DATE the applicant submitted yet another application to ORG on behalf of his alleged family members . In a letter of DATE , the ORG requested that the applicant contact the family in order to make an appointment at a NORP embassy abroad for an interview and to prove their identities . On DATE the application was dismissed as the requested information had not been provided within the prescribed DATE period and the application had not been pursued .


Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

In DATE , ORG and LANGUAGE ( PERSON ) , a ORG body responsible , inter alia , for motorway construction , expropriated CARDINAL plots of land belonging to the applicants in GPE in order to build ORG . A committee of experts assessed the value of the land and the sum so fixed was paid to them when the expropriation took place .

Following the applicants ' requests for increased compensation , on CARDINAL DATE ORG of First Instance awarded them additional compensation of MONEY ( TRL ) ( MONEY ( EUR ) ) , plus interest at the statutory rate applicable at the date of the court 's decisions , running from DATE .

On DATE ORG upheld the judgment of DATE .

On DATE the decision of ORG was served on the applicants .

On DATE the administration paid the applicants TRL CARDINAL ( approximately EUR CARDINAL ) in additional compensation together with interest .

The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , § § CARDINAL - CARDINAL ) .


JUSUFOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

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

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

The applicant was a manager and co - owner of ZZ ORG ( “ the company ” ) .

On DATE PERSON “ the defendant ” ) took heavy construction machinery through property ( “ the property ” ) which the company used for its own purposes ( it had constructed a hard standing for car parking and a waste container ) . The defendant caused damage to the fence and the concrete hard standing .

On DATE the applicant , represented by PERSON , brought , in his own name , an action for disturbance of possessions ( смеќавање на владение ) . He claimed to have had the last peaceful enjoyment of the property and fence , which had been disturbed by the defendant . He requested ORG to prevent the defendant from creating further disturbance and to order him to reinstate the property to its previous state . The applicant based his claim on sections CARDINAL - CARDINAL of the Ownership and other LAW ( “ LAW ” , see “ Relevant domestic law ” below ) .

On DATE ORG Instance dismissed the applicant ’s claim for lack of standing to bring such an action . It based its decision , inter alia , on his statement that the property had been adjacent to the company ’s main building and that the company had constructed the fence and the concrete hard standing DATE . The applicant further stated that the company had actually possessed and used the property ever since . Lastly , he maintained that he had title to the property , even though it was irrelevant to the subject matter of the case . The court ruled that the company , as a distinct legal entity , had been in possession ( владение ) of the property and that accordingly it had been the only person entitled to seek its protection . It held that the applicant had not had possession of the property and accordingly lacked the requisite standing to seek protection under LAW .

On DATE the applicant appealed , claiming that the first - instance court ’s approach had been too formalistic and that it should instead have taken into consideration the fact that he had title to the property . In DATE context , he presented a non - certified copy of a sales contract of DATE under which he had allegedly obtained the title , and a receipt slip for the price .

On DATE ORG dismissed the applicant ’s appeal and confirmed the lower court ’s decision . Relying on sections CARDINAL ( direct possession ) and CARDINAL of the Act , it reiterated that the applicant lacked the requisite standing to bring the proceedings . In this connection , it observed that the company had the actual possession of the property . It also dismissed the applicant ’s argument that he had title to the property , since the dispute concerned enjoyment of possessions ( владение ) .

Under LAW of the LAW , an owner or a purported owner is entitled to request that disturbance , which does not concern seizure of a property , of his of her ownership is brought to an end . The owner is also entitled to claim damage under the general compensation rules .

Section CARDINAL § § CARDINAL and CARDINAL of the LAW provides that every person who has control of a property , directly or through a representative , can claim to have possession ( владение ) of it ( direct possession ) . A person who has control of a property through another person who enjoys direct possession on the basis of a contract or another legal act can also claim to have possession of that property ( indirect possession ) .

Section CARDINAL § CARDINAL of the LAW provides that a possessor ( владетелот ) or a holder of a proprietary right is entitled to protect his or her possession from disturbance or deprivation .

Section CARDINAL of the LAW provides that a possessor whose possession has been unlawfully disturbed or seized is entitled to request the court to establish that the disturbance or seizure has taken place , to order reinstatement and to proscribe any such further or similar actions . Court protection is offered in special proceedings according to the last peaceful possession , regardless of the conduct of the possessor and whether the disturbance was lawful and in the public interest .

Under section CARDINAL § CARDINAL of the LAW , a person in indirect possession of a property can seek judicial protection of possession if the person in direct possession has not availed him or herself of it .

Under LAW , a court decides upon a claim as submitted before it .