SOFIANOPOULOS, SPAÏDIOTIS, METALLINOS and KONTOGIANNIS v. GREECE

The applicants , Mr PERSON , Mr PERSON , Mr PERSON and Mr NORP , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively and live in GPE and in GPE . They were represented before the ORG by Mr PERSON GPE , a lawyer practising in GPE .

Law no . CARDINAL/CARDINAL , on the compulsory production of identity cards , provided that in order to facilitate identity checks identity cards must record the bearer ’s religion . LAW no . CARDINAL/CARDINAL , on the evidential value of identity cards , required identity cards to record the bearer ’s religion , among other information . The situation was changed by PERSON no . DATE , which concerned relations between the ORG and its citizens , the introduction of a new type of identity card and other measures ; section CARDINAL provided that it was not compulsory to record a person ’s religion on his or her identity card , this being done only at the bearer ’s request . However , PERSON no . DATE was never applied , as the Minister of the ORG extended the application of Legislative Decree no . CARDINAL . Law no . CARDINAL/CARDINAL once again made it compulsory to record religion on identity cards .

By its decision no . CARDINAL of CARDINAL DATE the authority responsible for personal data protection ( “ the authority ” ) ruled that recording certain information , including the bearer ’s religion , on identity cards constituted processing of personal data which was incompatible with PERSON no . ORG on the protection of individuals with regard to processing of personal data ( epexergasia dedomenon prosopikou charactira ) . The authority then invited ORG to take the necessary steps to ensure that a note indicating the bearer ’s religion would be neither requested nor authorised by the services responsible for issuing new identity cards . It referred to ORG Convention for the protection of individuals with regard to automatic processing of personal data . It expressed the view that , regard being had to the purpose of data processing , namely , in the present instance , checking people ’s identities , the following information was not necessary : fingerprints , the name and forename of the spouse , sex , occupation , nationality , home address and religion . With regard to religion , the authority pointed out that this information concerned a matter of individual conscience and was therefore not indispensable for establishing identity . It also took the view that the individual ’s consent did not necessarily make the processing of all this information legitimate , since such consent could not have the effect of authorising processing which was illegitimate in itself or contrary to the aim pursued or the principle of necessity .

On DATE an association , ORG , stated in the press : “ Recording religion on identity cards , even on a voluntary basis , is contrary to the fundamental provisions of the LAW , which guarantee freedom of religion ” .

By a joint decision of DATE ORG and Public Order established the type of the new identity card and the information it should contain , which no longer included religion .

On DATE , CARDINAL DATE and CARDINAL DATE the applicants asked ORG to set aside the joint decision of DATE on the ground that it did not include religion in the information to be recorded in identity cards ; they alleged an infringement of the freedom of religion , guaranteed by LAW .

The hearing in the case , and in a number of similar cases , took place on DATE before ORG sitting as a full court . At the beginning of the hearing the applicants challenged for bias those judges who , as members of ORG , had publicly spoken out against recording religion on identity cards .

CARDINAL judges declared that they were members of the association and CARDINAL others pointed out that PERSON no . CARDINAL/CARDINAL barred judges from revealing , even of their own accord , whether they belonged to it .

By its interlocutory decision no . CARDINAL the full court of ORG dismissed the challenge for bias . It noted that the judges in question had not taken any part in publication of the declaration by the association ’s executive committee and had accordingly not adopted any position on the matter . Furthermore , the declaration had been published in the press during the judicial vacation and without the knowledge of the judges challenged . On the other hand , by its decision no . CARDINAL/CARDINAL , the full court ruled that the president of the association , who was a member of ORG , should be excluded from the hearing .

In its judgment no . CARDINAL/CARDINAL ORG held by a majority that , whether it was voluntary or compulsory , recording religion in identity cards would breach LAW . It ruled in the following terms :

“ Freedom of religious conscience , which protects the individual ’s religious beliefs against any state interference , includes , among other things , an individual ’s right not to reveal his faith or his religious beliefs and not to be obliged to act or refrain from acting in such a way that it is possible to conclude that he has such beliefs . No state authority or organisation has the right to interfere in the field of an individual ’s conscience , which is inviolable , according to LAW , or seek to discover his religious beliefs , or oblige him to reveal his religious beliefs through external signs . An individual ’s voluntary disclosure of his beliefs to the authorities with a view to the exercise of certain specific rights conferred by law for the purposes of protecting freedom of religion ( for example , the right to be exempted from military service as a conscientious objector , or from religious education lessons or other obligations imposed on schoolchildren , such as attending mass or prayers , or to establish a place of worship or religious association ) is another matter . Consequently , the obligation to record religion on identity cards ... would breach LAW ... The positive aspect of freedom of religion ( manifestation of beliefs ) consists in the right for everybody to manifest his religion or beliefs without hindrance either alone or in community with others and in public or private in so far as he does not offend against public order or morals and subject to the restrictions laid down in the fourth paragraph of LAW . However , that freedom does not include the right for individuals to manifest their religion or their religious beliefs by recording them , if they wish to do so , in public documents such as identity cards . Not only does LAW not confer such a right on persons entitled to freedom of religion ... , but it prohibits the recording , even on a voluntary basis , of religion or religious beliefs in identity cards as a means of manifesting or proving them . The effect of any other interpretation would be to infringe the freedom of religion ... of those NORP who do not wish to manifest their religious beliefs in that manner and to do away with the ORG ’s religious neutrality with regard to exercise of that individual right ... When NORP refuse to record their religion or religious beliefs in their identity cards their refusal is noted by a public authority in a public document which can be shown to any authority or service or to private individuals for the identification of the bearer , and they are obliged to reveal , indirectly and almost publicly , CARDINAL aspect of their thoughts on religious matters . At the same time , they distinguish themselves , against their will and by interference of the public authorities , from those NORP who disclose their religious beliefs by recording them in their identity cards . Moreover , the recording of religion in identity cards opens the way to positive or negative discrimination and thus creates the risk of interference with religious equality , guaranteed by LAW . ”

As regards the complaint of a violation of LAW , ORG held that , because recording religion was contrary to LAW , it should be rejected , since international conventions ratified by law prevailed over legislation but not the LAW .

LAW provides :

“ CARDINAL . The dominant religion in GPE is that of ORG . ORG , which recognises as its head Our Lord PERSON , is indissolubly united , doctrinally , with FAC of GPE and with any other ORG in communion with it ( omodoxi ) , immutably observing , like the other Churches , the holy apostolic and synodical canons and the holy traditions . It is autocephalous and is administered by ORG , composed of all the bishops in office , and by the standing ORG , which is an emanation of it constituted as laid down in GPE and in accordance with the provisions of LAW of DATE and LAW DATE .

LAW provides :

“ CARDINAL . Freedom of conscience in religious matters is inviolable . The enjoyment of personal and political rights shall not depend on an individual ’s religious beliefs .

There shall be freedom to practise any known religion ; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law . The performance of rites of worship must not prejudice public order or public morals . Proselytism is prohibited .

NORP The ministers of all known religions shall be subject to the same supervision by the ORG and to the same obligations to it as those of the dominant religion .

No one may be exempted from discharging his obligations to the ORG or refuse to comply with the law by reason of his religious convictions .

No oath may be required other than under a law which also determines the form of it . ”

Articles CARDINAL and CARDINAL of ORG Convention for the protection of individuals with regard to automatic processing of personal data , adopted in GPE on DATE and ratified by GPE through PERSON no . DATE , provide :

“ Quality of data

Personal data undergoing automatic processing shall be :

a. obtained and processed fairly and lawfully ;

b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes ;

c. adequate , relevant and not excessive in relation to the purposes for which they are stored ;

d. accurate and , where necessary , kept up to date ;

e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored . ”

“ Special categories of data

Personal data revealing racial origin , political opinions or religious or other beliefs ... may not be processed automatically unless domestic law provides appropriate safeguards . The same shall apply to personal data relating to criminal convictions . ”


The applicants , whose names appear in the appended list , are CARDINAL NORP associations and CARDINAL NORP nationals . They were represented before the ORG by Mr NORP PERSON , PERSON and PERSON , lawyers practising in GPE .

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

The applications were lodged by the guardians of persons in a vegetative state , by associations whose membership consists of , inter alia , relatives of severely disabled people , doctors , psychologists , and lawyers assisting such persons and by ORG , a human - rights defence organisation .

In DATE ORG , a CARDINAL-year - old woman , was a victim of a road - traffic accident in which she suffered a head injury and a fractured vertebra and fell into a coma . She was subsequently diagnosed as being in a vegetative state with spastic tetraplegia and loss of all higher cognitive functions .

In DATE ORG was placed under the guardianship of her father . In DATE her father began court proceedings , seeking authorisation to discontinue his daughter ’s artificial nutrition and hydration and alleging that this would have been his daughter ’s wish given her personality and the ideas she had expressed about life and human dignity before her accident . The authorisation was refused twice at first instance and on appeal , in DATE and DATE . In DATE ORG quashed the first decision of ORG dismissing the appeal and remitted the case for fresh consideration , observing that ORG father ’s request could not be granted in the absence of specific evidence as to the wishes expressed by his daughter before the accident . On DATE ORG quashed the second decision of ORG and , in its order remitting the case , stated that the judicial authority could authorise the discontinuation of artificial nutrition if the person concerned was in a persistent vegetative state and if there was evidence that such person would have opposed medical treatment if he or she had been in possession of all his or her faculties .

In a decision of DATE ORG , after rehearing the case , granted the authorisation requested by ORG father on CARDINAL grounds , namely , that ORG vegetative state was irreversible and that there was clear , consistent and convincing evidence that the request accurately reflected the will of the represented person in so far as this could be inferred from her lifestyle , her beliefs and the views she had expressed on human dignity before becoming unconscious .

On DATE ORG rejected applications lodged by ORG in DATE alleging a conflict between the various branches of ORG power . It found that the judges who had examined the case had not issued a legislative precedent and had not therefore usurped the prerogatives of ORG .

Lastly , on DATE , ORG dismissed an appeal on points of law by the GPE public prosecutor ’s office against ORG decision of DATE , on the ground that the public prosecutor did not have capacity to act in the proceedings . That decision rendered the contested judgment final .


Violation of Article 5 - Right to liberty and security

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in Gdańsk . He is currently serving a prison sentence in FAC .

On DATE the ORG ( Sąd Rejonowy ) remanded the applicant in custody until DATE in view of the reasonable suspicion that he had committed the offences with which he was charged and the risk that he would obstruct the investigation . The applicant was suspected of acting in an organised criminal group , illegal possession of weapons and several offences of armed robbery . The court considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings , given the risk that he might induce witnesses to give false testimony The court also stressed the severity of the likely sentence and that the applicant had been wanted by the police since DATE .

The applicant ’s detention was repeatedly extended by decisions of ORG ( PERSON ) and ORG ( Sąd Apelacyjny ) . Appeals and applications by the applicant for release and for the preventive measure to be varied were unsuccessful . In their decisions the courts relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged , on their serious nature and the complexity of the case .

Once the length of the applicant ’s detention had reached the statutory DATE maximum laid down in LAW of LAW ( Kodeks Postępowania Karnego ) , the first - instance court no longer had jurisdiction to extend it . Consequently , it was ORG which issued further extensions . In its first extension decision , on DATE , ORG relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and on the considerable complexity of the case . The court also held that the risk that the applicant and other co - accused would obstruct the investigation was justified . It did not however refer to any reasons justifying its allegations .

On DATE the ORG gave judgment . The applicant was convicted as charged and sentenced to DATE imprisonment .

The applicant and several other co - accused appealed . The applicant was kept in detention pending appeal for DATE .

On DATE the ORG quashed the first - instance judgment and remitted the case for re - examination to the first - instance court .

On DATE the ORG extended the applicant ’s detention until DATE . The applicant remained in detention until his further conviction .

On DATE the ORG again convicted the applicant and sentenced him to CARDINAL years’ imprisonment .

On an unspecified date the applicant appealed against this judgment .

On DATE the ORG of Appeal gave judgment apparently upholding the applicant ’s conviction .

The applicant twice lodged a complaint that his right to a trial within a reasonable time had been breached under LAW June CARDINAL on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) .

On DATE the ORG left the complaint unexamined because the applicant had failed to pay court fees . On DATE the same court rejected the applicant ’s second complaint for a procedural mistake ( the applicant had failed to specify the circumstances justifying his claim as required by LAW ) .

The applicant produced an envelope in which he had received an application form from the ORG . The envelope had been sealed with sticky tape but there was no “ censored ” stamp on it or any other mark that could mean that the applicant ’s correspondence had been interfered with .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .


Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - reserved;Non-pecuniary damage - reserved

David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives on LOC .

NORP The applicant owned an area of land in GPE , GPE , measuring approximately QUANTITY . m.

On DATE , by means of a President ’s declaration made by virtue of LAW , it was declared that the land was required for a public purpose and was thereby being expropriated . According to the Government the site was to be protected as a nature reserve .

Following the issue of the relevant permit dated DATE , in DATE the boundary of the plot was fenced with a chain - link fence , but no other use has ever been made of the property to date . According to an architect ’s report submitted by the applicant the site had been abandoned and allowed to deteriorate . It was completely neglected and not looked after in any way . In consequence the land had been vandalised and the watercourses on the land contaminated by leakages from a nearby pig farm . According to the applicant the land had become a dumping site . The Government contested the veracity of this allegation .

The said fencing incorporated an area of land which was effectively larger than that covered by the declaration . In consequence , in relation to this additional land ( hereinafter Land B for ease of reference ) measuring QUANTITY . m the applicant claimed that there had been a de facto expropriation which was not in accordance with the law .

The entirety of the land was part of LOC , which recognised the site as a salt marsh of ecological importance . Nevertheless , ORG policies authorise development in the area subject to specific conditions .

NORP The applicant contended that although the site was declared a Special Conservation Zone in DATE , in DATE when it was taken there existed no public purpose . In the meantime she was prevented from developing the land in accordance with the relevant policies , since any permit requests she made were refused on the basis of the supposed expropriation .

To date , the Commissioner of Lands had not issued a “ notice to treat ” and the applicant had not received any compensation for the taking of her land .

The applicant ’s judicial protest of DATE requesting the Government to dispossess itself of certain adjoining lands ( including Land B ) which she claimed had been expropriated illegally , and to pay compensation , was unsuccessful .

NORP In DATE the applicant instituted proceedings before ORG ( FAC ) in its constitutional jurisdiction , complaining of a breach of her rights as guaranteed by LAW No . CARDINAL to LAW . She claimed that no use had been made of the expropriated land , that the taking could not be considered proportionate and that she had not obtained any compensation . Moreover , the delay in initiating compensation proceedings denied her the right of access to court . She further noted that certain adjoining lands were also her property and that notwithstanding her judicial protest of DATE , which she attached to her application ( ORG promotorju ) , the ORG had not taken the desired action .

On DATE ORG rejected the applicant ’s claims . It held that there was no doubt that the land in question was saline marshland that had great ecological importance in GPE . Therefore , its taking for the preservation of a natural reserve had been legitimate and in the public interest . As to LAW it held that the applicant could have instituted ordinary proceedings to oblige the Commissioner of Lands to institute proceedings before ORG ( “ LAB ” ) or could have made a request for the relevant Government department to appoint a lawyer to establish the origin of the land . However , she had not taken up any of these procedures .

The applicant appealed on the grounds that the public interest upheld by the court was an objective one . However , the Government had failed in the circumstances of the present case to demonstrate how and whether the protection of the said reserve would occur . Moreover , the public interest had to be established at the time of the taking and must persist . However , in the present case the site was declared a Special Conservation Zone only in DATE , DATE after the taking and it surely did not persist in view of the state of the land to date . Furthermore , as was clear from the testimony before the first - instance court , the fencing had taken over more land than was covered by the President ’s declaration . Thus , as had been argued in the applicant ’s submissions , the court should have ordered its release and upheld a violation in the terms explained in her original application ( “ rikors promotur ” ) .

On DATE , ORG found that the applicant ’s property rights had not been violated but that there had been a breach of LAW in so far as the failure of the Commissioner of Lands to issue a “ notice to treat ” amounted to a lack of access to court . It awarded the applicant CARDINAL ( ORG ) in respect of non - pecuniary damage .

The Constitutional Court reiterated that the public interest should persist from the moment of taking the land to the moment when the Government obtained ownership of the land on conclusion of the expropriation procedure . It considered the evidence produced , in particular the witness testimony of the Commissioner of Lands , stating that ORG had requested that such land be expropriated ; ORG correspondence related to the use of the land evidencing that because fencing had been built the property should not be released , whereas it would have been otherwise had nothing been done on site ; photographs of the state of the land when it was being taken care of by the applicant ’s ancestors ; and the witness testimony of an employee at the ORG who classified the land as saline marshland ( LOC sea meadows ) hosting rare and healthy flora and fauna communities . He further stated that the land was in a good state although the man in the street might deem otherwise due to the appearance of salt marshes and that the department had added certain species to the site in order to avoid erosion and had carried out engineering works to improve the state of the pools therein . In this light , and having considered subsequent structural plans and assessments confirming the necessity of protecting the biodiverse site , the court held that the taking of the land had been in the public interest , which persisted , notwithstanding that no construction had taken place . It was in fact the aim of the taking of the land to leave the site in its original state , a state which could not have been guaranteed if it had been left in the hands of private individuals .

In respect of Land B of the land , while noting that the Commissioner of Lands did not contest the allegation and was willing to give the relevant portion back to the applicant , the court found that the applicant had not made any request in this respect in her application ( “ rikors ” ) to the court . It noted that the court had to decide on the case as presented in the application which fixed the parameters of a case at issue . Indeed in the present case no request for rectification of the application had been made in order to include this complaint . The court therefore rejected this ground of appeal .

Under LAW it held that the applicant , who became aware of the expropriation in DATE , had not solicited the action of the authorities . Nevertheless , it was unacceptable that the Commissioner of Lands , who had the duty to take action , had , in DATE , failed to pay compensation , or at least to make an offer of such . In consequence this amounted to a violation of Article CARDINAL for lack of access to court .

ORG ) Ordinance ( LAW of LAW ) in so far as relevant read as follows :

Section CARDINAL

“ The President of GPE may by declaration signed by him declare any land to be required for a public purpose . ”

Section CARDINAL

“ The competent authority may deal with and dispose of land acquired by it in such manner and subject to such conditions as it considers expedient having regard to the public interest or utility . ”

Articles CARDINAL and CARDINAL of subsidiary legislation CARDINAL regarding court practice and procedure and good order rules , read as follows :

Article CARDINAL

“ Proceedings before ORG , ORG , under article CARDINAL ( CARDINAL ) of the LAW of GPE and under LAW and proceedings before ORG in cases referred to in LAW shall be instituted by application . ”

Article CARDINAL

“ ( CARDINAL ) An application before ORG , ORG , shall state concisely and clearly the facts out of which the complaint arises and shall indicate the provision or provisions of LAW or of LAW alleged to have been , to be or likely to be contravened .

( CARDINAL ) The application shall also specify the redress sought by the applicant :

Provided that it shall be lawful for the court , if the application is allowed , to give any other redress within its jurisdiction which it may consider to be more appropriate .

( CARDINAL ) In cases referred to in LAW , the application before the ORG shall state clearly and concisely the circumstances out of which the question arises , the demand and the provision or provisions of the LAW or of any other law on which the applicant relies .

( CARDINAL ) In cases referred to in article CARDINAL ( CARDINAL ) ( c ) , ( d ) , ( e ) and ( f ) of LAW , the application shall state clearly and concisely the circumstances out of which the appeal arises , the reasons of appeal and the prayer for the reversal or a specific variation of the decision appealed from .

( CARDINAL ) Default of compliance in the application with the requirements of sub - rules ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) shall not render the application null ; but the court may , in any such case , order the applicant to file , within such time as the court shall fix , a note containing the particulars required and the costs of such order shall be borne by the applicant . ”

Article CARDINAL of LAW ( LAW of LAW ) , in so far as relevant , read as follows :

“ Where the time for the performance of the obligation has been left to the will of the debtor , or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so , or when he will have the means for so doing , the following rules shall be observed :

( a ) if the subject - matter of the obligation is the payment of a sum of money , such obligation shall be performed within DATE , if the sum is due without interest , or , within DATE if the sum is due with interest ;

( b ) if the subject - matter of the obligation is other than the payment of a sum of money , the time within which the obligation is to be performed shall be fixed by the court according to circumstances . ”


Preliminary objection joined to merits;Not necessary to examine the preliminary objection;Violation of Art. 6-1;Not necessary to examine Art. 6-1 and 6-3;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

At TIME on DATE the applicant received a telephone call from PERSON , who inquired whether he had any cannabis in his possession . The applicant replied in the negative but added that in DATE , after having made some inquiries , he might know better .

At TIME on DATE NORP and GPE entered GPE in a car in which a quantity of drugs had been hidden . They drove through customs in GPE , south - west GPE , and left for GPE . At CARDINAL a.m. M. called the applicant and requested him to go and get the drugs because he was unable to do so himself . The applicant accepted .

At TIME and TIME called the applicant again . In DATE asked the applicant whether he now had any cannabis . The applicant answered that he could provide it DATE . In the second call it was agreed that ORG would call the applicant again in order to arrange a meeting TIME . At TIME called the applicant and they agreed to meet in front of a restaurant TIME after the call .

At the material time , the applicant did not know that PERSON had been in detention on remand from DATE .

The parties disagree as to the time of the initial call and as to when the order for narcotics was made . According to the applicant , the first call from H. could have taken place either on DATE CARDINAL DATE . That call was the start of the applicant 's involvement in the relevant events and the order was placed on DATE . According to the ORG , the order was placed at TIME on DATE , but the applicant had become involved earlier , during the importation of the drugs into GPE . They did not specify the exact nature or the time of his involvement .

At TIME on DATE the applicant was arrested in front of the restaurant while in possession of QUANTITY of cannabis . In a later search of his apartment , a further QUANTITY of cannabis were found .

When questioned by the police , the applicant stated that he had DATE met CARDINAL women at a petrol station , in accordance with the instructions of PERSON , a drug dealer . The women had given him the car . He and PERSON together had unloaded QUANTITY of cannabis . The applicant had received QUANTITY and had gone to the restaurant , where he had been arrested .

On DATE ORG ( käräjäoikeus , tingsrätten ) authorised the police to obtain telephone metering information concerning the applicant 's telephone . On DATE the court ordered his detention pending trial .

During the criminal investigation the applicant told the police about his earlier drug deals , namely the sale of cannabis purchased from LOC in DATE , CARDINAL incidents of exporting cash to the GPE in DATE , the purchase of CARDINAL mobile telephone connections to be used by PERSON , the introduction of a third party to PERSON to purchase another mobile telephone connection and for the export of cash to the GPE , and giving PERSON a key to his apartment .

On DATE the applicant was charged with the following offences :

“ I ) aiding and abetting on CARDINAL occasions the importing of narcotic substances in DATE and DATE [ delivering cash to GPE on the order of PERSON ] ;

II ) promoting the importation of narcotic substances on CARDINAL occasions in DATE and DATE [ acquiring mobile phone connections for M. ] ;

III ) an aggravated narcotics offence on DATE [ possession and handling of QUANTITY of cannabis together with PERSON and taking QUANTITY for himself ] ;

IV ) CARDINAL narcotics offences in DATE [ sale of CARDINAL and QUANTITY grams of cannabis on the order of M. ] ; and

V ) an aggravated narcotics offence in DATE [ sale of QUANTITY of cannabis purchased from M. ] . ”

He admitted all the events on which the charges were based .

At the hearing on DATE the applicant gave evidence against CARDINAL of his co - defendants . The applicant 's counsel clarified that on DATE his client had taken delivery of the car in order to obtain QUANTITY of cannabis without knowing how much cannabis the car contained . The case was adjourned and the applicant was ordered to remain in custody as the police investigation concerning some of the events had not yet come to an end .

At the hearing on DATE the prosecution presented alternative charges against the applicant in so far as he had been charged on count II with promoting the importation of narcotic substances . He was now charged in the alternative with aiding and abetting a narcotics offence on CARDINAL occasions . The prosecution also made a change to count V to the following effect . As he had earlier been accused of possessing and selling QUANTITY of cannabis in DATE , the altered charge concerned QUANTITY of cannabis of which he had allegedly sold QUANTITY to CARDINAL different persons during the period from DATE until DATE . Also CARDINAL new charges were added , namely :

“ VI ) NORP aiding and abetting narcotics offences in DATE [ giving PERSON keys to his apartment knowing that it was going to be used for the sale of narcotics ] ; and

VII ) aiding and abetting an aggravated narcotics offence in DATE [ introducing a person to PERSON in order to have him deliver cash to GPE ] . ”

At the hearing on DATE the applicant 's counsel pointed out as newly acquired information that PERSON had been in police custody when he had placed the order and he had been released as a reward for his favours to the police . Therefore , counsel argued that no offence had been committed under count III as the events had taken place under police control . The police had set a trap by having the agent provocateur order cannabis from the applicant , who would not have committed the offence had he not been explicitly asked to do so . Counsel had requested the police to produce the telephone metering information about calls made from and to the applicant 's mobile telephone , but this had not yet been disclosed .

The applicant gave oral evidence that ORG had ordered a kilogram of cannabis on DATE or DATE , whereupon the applicant had contacted PERSON , who DATE had confirmed that there would be a shipment DATE . When PERSON called again on DATE , the applicant had told him that the deal might go through on DATE or DATE .

On DATE the police applied to ORG for permission not to disclose to the applicant that his mobile telephone had been under surveillance . DATE the court granted permission , relying on LAW , section CARDINAL(CARDINAL ) of LAW ( pakkokeinolaki , tvångsmedelslagen ) . DATE the police informed the applicant of the decision , declining to divulge the requested information . DATE the applicant requested the police to issue a formal decision which could be appealed . On DATE the police issued a decision in which it was maintained , inter alia , that the information was not to be disclosed even to a party to criminal proceedings . On DATE the applicant requested ORG to order the police officer in charge of the investigations , PERSON , to produce the telephone metering information at the next hearing . The applicant had received several telephone calls from PERSON during the period DATE and the observance of the equality of arms principle required the production of the telephone records .

On DATE ORG held its final hearing . As the criminal investigations had been continuing throughout , at this stage CARDINAL people had already been accused of various narcotics offences .

NORP The applicant 's counsel submitted that on DATE he had tried to summon PERSON to appear before the court , without success . He renewed his request to the court to summon PERSON and to order the disclosure of the telephone metering information .

The prosecutor submitted that the allegation about the calls made by ORG while in police custody appeared to be true . He produced a fax from PERSON ( a memorandum dated DATE ) in which it was maintained that , given the date of ORG 's arrest , it was impossible that the police could have incited the applicant and PERSON to smuggle narcotics , as plans to import the drugs had already been in place . There was no mention in the memorandum as to when PERSON had called the applicant . The prosecution also produced another fax from PERSON dated DATE in which he reiterated that the detailed telephone metering information was classified . He nevertheless maintained that there had been CARDINAL call on DATE and CARDINAL calls on DATE from the police to the applicant . No further details were provided .

The applicant submitted that the former of the above faxes gave the court sufficient information to rule on the matter of incitement . It showed that the only reason for his actions under count III was the telephone call from ORG The public prosecutor accepted that he did not rule out this possibility and submitted that the calls could be taken into account so as to reduce the applicant 's sentence , but not to absolve him of all criminal liability . The applicant 's counsel pointed out that the prosecution did not dispute the agent provocateur claim . He withdrew his request to examine PERSON , who was in any event likely to rely on his right not to testify . He also withdrew the request to the court to order the disclosure of the telephone metering information .

It can not be concluded from the records of the hearings that any of the co - defendants testified as regards the charges brought against the applicant . According to the ORG , both NORP and PERSON were heard at the hearings on DATE and DATE .

On DATE the applicant was convicted on all counts and sentenced to DATE imprisonment . On count III he was convicted on the basis that on DATE he had been in possession of QUANTITY of cannabis , having taken delivery of a car in which NORP and PERSON had illegally imported the drugs , and having later removed them from the car and weighed them together with PERSON The judgment did not mention any police involvement .

On DATE the applicant lodged a criminal complaint against PERSON and Senior Constable GPE , alleging , inter alia , incitement to commit an offence ( see paragraph CARDINAL ) .

On DATE the applicant complained to ORG ( lääninhallitus , länsstyrelsen ) , arguing that ORG decision of DATE not to disclose to him that his telephone had been under surveillance did not mean that the information gathered should not now be accessible to him .

On DATE the applicant appealed to ORG ( hovioikeus , hovrätten ) , requesting an oral hearing on count III . He also requested , relying on PERSON v. the GPE ( judgment of DATE , Series A no . CARDINAL , § CARDINAL ) , that the police officer in charge of the criminal investigation , PERSON , be ordered under LAW , Article CARDINAL , of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) to produce the telephone metering information . As to the request for an oral hearing , he stated that , following ORG judgment , he had received more exact information about the persons involved in the agent provocateur operation . ORG ( keskusrikospoliisi , centralkriminalpolisen ) had proceeded with the investigation into the suspected offences . The public prosecutor did not submit any written reply to the appeal .

On DATE the applicant submitted a pre - trial investigation report of DATE which concluded that GPE and GPE were suspected of abuse of public office , breach of official duty and incitement to commit an aggravated narcotics offence . He also produced a subsequent indictment by ORG ( lääninsyyttäjä , länsåklagaren ) . Lastly , he renewed his request for disclosure of the telephone metering information .

On DATE ORG , finding that the applicant in his capacity as a party to the proceedings against him should have access to the telephone metering information , annulled the police decision regarding the non - disclosure and ordered the information to be given to the applicant 's counsel . On DATE the applicant renewed his request to ORG for disclosure of the information . At that time , he had apparently still not received the requested information as the decision had not become final .

Meanwhile , on DATE , ORG delivered its judgment , upholding the applicant 's conviction . It rejected the requests for a hearing and disclosure of the telephone metering information as ill - founded . It stated that it had admitted to the file the applicant 's written submission of DATE with annexes , despite the fact that it had arrived after the time - limit for the appeal had expired . The court confirmed the substance of ORG judgment but amended some of the reasoning . It found it established that there had been CARDINAL telephone call to the applicant on DATE and CARDINAL calls on DATE from a mobile telephone owned by the police . Relying on the pre - trial statements of CARDINAL of the applicant 's co - defendants , NORP and PERSON , the court found that “ there [ had been ] an arrangement that the applicant receive the cannabis prior to the order made by NORP ” and thus found him guilty as charged . It did not specify whether it was making reference to the call of DATE or to one of the CARDINAL calls of DATE . Nor did it specify the date of the applicant 's initial involvement with the narcotics . The case file does not disclose that NORP and PERSON 's statements touched upon the chronology of the events as regards the applicant 's involvement .

On DATE the applicant sought leave to appeal from ORG ( korkein oikeus , högsta domstolen ) , requesting an oral hearing . He emphasised that charges had been brought against the police officers . Further , ORG had based his conviction in part on NORP and PERSON 's pre - trial statements , although neither the prosecution nor ORG had relied on them . Had the applicant known that those statements , which he had not seen , would be used as evidence against him , he would have cross - examined NORP and PERSON in ORG . ORG had not held an oral hearing and had assumed the functions of the prosecution , thereby violating the applicant 's right to examine the witnesses against him . ORG had also breached LAW , LAW , of LAW as it had not identified the special reasons justifying an examination beyond the arguments and facts adduced in the writ of appeal . ORG had reached its conclusion regarding the timing of PERSON 's call on the basis of the pre - trial investigation report in the proceedings against GPE and GPE , and thus on material relating to another case .

On DATE the applicant submitted the judgment of ORG in which GPE and GPE had been convicted and fined . The incitement charge had however been dismissed ( see paragraph CARDINAL below ) .

On DATE the applicant filed a written submission , maintaining that the only differences between his case and that of Teixeira GPE v. GPE ( no . ORG report of CARDINAL DATE , Decisions and Reports ) were that he had been deprived of information about the agent provocateur operation and of an opportunity to examine GPE and GPE Further , the lower courts ' judgments had not been properly reasoned .

On DATE ORG refused him leave to appeal .

As mentioned above , on DATE the applicant made a criminal complaint about PERSON and Senior Constable GPE

NORP The applicant 's request that the police interview the prosecutor in the criminal proceedings against him about , inter alia , whether the police report in his case had contained sufficient information , was rejected , as was his request that PERSON be interviewed about whether the applicant had participated in the smuggling of the narcotics prior to CARDINAL DATE .

During the pre - trial investigation ORG maintained that ORG had agreed to disclose the identity of his drugs supplier only if it was not written down in the report . The applicant 's identity had been established from the telephone number produced by PERSON the first call had been to establish whether he had any narcotics in his possession . He had been under surveillance from TIME DATE and he had become a suspect as he had been sighted in a rented car together with PERSON on that afternoon . The police had received information from independent sources that a drugs shipment was going to be smuggled into the country on DATE in a rented car . The police had planned on stopping the vehicle but had failed . The only way to find the cannabis had been to call the applicant and place an order .

In the pre - trial investigation the applicant and PERSON testified that an order had been made in code language in the call of CARDINAL DATE .

In DATE and DATE the then ORG brought charges against GPE and GPE for abuse of public office , incitement to commit an aggravated narcotics offence and breach of official duty . The indictment alleged :

“ From DATE PERSON in his capacity as GPE and GPE in his capacity as Senior Constable acted in the following manner when carrying out a pre - trial investigation into a suspected narcotics offence in which ORG was a suspect :

NORP [ GPE and GPE ] abused their office in relation to [ H. ] , who was under their direct supervision as a detainee on remand , by ... persuading PERSON , who hoped that it would bring him relief as regards his own situation , to make a deal over the telephone to the effect that [ the applicant ] sell to him QUANTITY of cannabis to enable the police to arrest [ the applicant ] and confiscate the drugs as the deal was about to take place . They thereby restricted his right to liberty to a greater extent than the aim of his arrest required .

NORP [ GPE and GPE ] , in the manner explained above , through [ H. ] on DATE , deliberately incited [ the applicant ] to obtain cannabis unlawfully to deliver it to [ H. ] together with another person receiving at least QUANTITY of narcotics from the persons who imported the narcotics unlawfully . Of this amount [ the applicant ] took over QUANTITY . When [ the applicant ] arrived at the location agreed on the telephone with [ H. ] the police arrested [ the applicant ] and confiscated the cannabis from his possession . [ The applicant ] was subsequently convicted of an aggravated narcotics offence . ... They have thereby also breached their official duty . ”

The applicant associated himself with the prosecution . He also brought an alternative private prosecution to the following effect :

“ CARDINAL . [ PERSON ] breached his official duty in that he did not , by making an annotation in the pre - trial investigation records or by any other means , inform [ the applicant ] , ORG or the Helsinki ORG of the circumstances in which [ the applicant 's ] offence had taken place . ... These circumstances had become clear at the end of the trial as ORG upon [ the applicant 's ] request had requested a clarification of the facts in issue . ”

The defence relied , inter alia , on ORG judgment of DATE in the applicant 's case , in which it was held that there had been an arrangement that the applicant receive the drugs prior to the order made by ORG The defence argued that the order had not been made before TIME on DATE . The applicant gave oral evidence , maintaining that H. had placed the order in his first call , on DATE CARDINAL or Thursday CARDINAL September , whereupon the applicant had contacted PERSON At CARDINAL TIME on DATE M. had called the applicant and requested him to take delivery of the narcotics from NORP and PERSON The court also heard oral evidence from PERSON , the defendant police officers and some other officers .

On DATE ORG convicted GPE and GPE of abuse of public office and sentenced them to a fine . It held that the facts regarding the telephone calls as described in the indictment were established and stated that it did not believe that PERSON would have called the applicant solely on his own initiative . It noted that the telephone metering information disclosed that PERSON had called the applicant at TIME on DATE and at CARDINAL p.m. , TIME and TIME on DATE . It however rejected the incitement charge as the applicant had not been convicted of delivering the QUANTITY of cannabis to PERSON , GPE and GPE had lacked intent to incite the applicant to obtain the remaining drugs . Also the charge concerning breach of official duty was rejected .

The applicant submitted , inter alia , that ORG had been wrong to find in its judgment of DATE that there had been an arrangement that he receive the narcotics prior to ORG 's order .

On DATE ORG quashed the convictions of the QUANTITY police officers for abuse of public office , holding :

“ On DATE [ the applicant ] was convicted by ORG ... of several narcotics offences committed from DATE ... In that judgment it was established that prior to the police officer 's order made by telephone there had been an arrangement that he would receive a QUANTITY drugs shipment . During the present proceedings , no such grounds have emerged for concluding otherwise . Accordingly , the order for the narcotics in issue did not affect [ the applicant 's ] guilt as to the possession of the QUANTITY of narcotics of which he has been convicted as mentioned above . The guilt of [ GPE and GPE ] as regards a prohibited entrapment operation has not therefore been established . ... ”

In his writ of appeal , ORG ( valtiosyyttäjä , statsåklagaren ; who replaced ORG ) submitted that it could not be concluded from ORG judgment of DATE that prior to the police order there had been an arrangement for the applicant to receive the narcotics . Further , he pointed out that the applicant had been charged and convicted of an offence committed on DATE , and not before , and no evidence had even been produced to show that the applicant had been involved in the shipment prior to DATE . In any event , it had not even been alleged that the shipment had arrived in GPE on DATE , or earlier .

In its judgment of CARDINAL DATE ORG found that PERSON , who had been in detention on remand , had co - operated with the police . It considered that there was no reason to depart from the lower courts ' establishment of the facts , although it remained unclear how the co - operation had been induced . The court found that on CARDINAL and DATE had discussed with the applicant in general terms whether it would be possible to buy cannabis from him . At TIME on DATE had placed an order . According to ORG 's confession , on TIME CARDINAL September CARDINAL he had encouraged H. through GPE to place an order with the applicant for QUANTITY of cannabis . H. had therefore called the applicant at CARDINAL p.m. The court found it established that GPE and GPE at TIME had incited the applicant to commit a new offence by selling narcotics to H.

ORG noted that in their judgments of DATE and DATE ORG and ORG respectively had found the applicant guilty of an aggravated narcotics offence in that on DATE he had been unlawfully in possession of QUANTITY of cannabis having unlawfully taken delivery of a car from persons who had unlawfully imported the narcotics in it and by participating in the unloading and the weighing of the cannabis . It had been established that the applicant had been involved in the importing of these QUANTITY of cannabis long before DATE . According to ORG , the telephone conversations between PERSON and the applicant had not therefore had any impact on the receipt by the applicant of the imported narcotics . Thus , the involvement by GPE and GPE could not be regarded as having had any causal relation with the offence of which the applicant had been convicted . In order to convict someone of incitement to commit an offence it was a pre - condition that the offence had actually been committed . That had not been the case here , because the police intervention had prevented the applicant from selling MONEY to H. Accordingly , GPE and GPE were not guilty of incitement to commit an aggravated narcotics offence .

ORG found however that GPE and GPE had used prohibited methods and were thus guilty of a breach of official duty .

As to the sentence , ORG noted that the police officers had been tipped off by a third party that a rented car containing narcotics was going to enter the country during DATE . On TIME the police had sighted the applicant in a rented car , but had not been able to follow it . In order to prevent the narcotics from entering the market , PERSON had decided that it was necessary to encourage PERSON to place an order and agree on a meeting . This had resulted in the applicant 's arrest and the confiscation of a large amount of narcotics . The court concluded that , considering the seriousness of the situation , resorting to the prohibited method was excusable . It therefore decided not to impose a sentence .

On DATE the applicant requested a re - opening of the case against him , based on the fact that ORG had convicted GPE and GPE of a breach of official duty . He made reference to the case of PERSON v. GPE ( judgment of DATE , Reports of ORG ) .

On DATE , thus on the same day judgment in the case against PERSON and Senior Constable GPE was delivered , ORG refused the request .

Section CARDINAL , subsection CARDINAL , of LAW ( poliisilaki , polislagen ; Act no . CARDINAL/CARDINAL ) provides that when being heard as a witness or otherwise , police personnel are not obliged to reveal the identity of any person who has provided them with confidential information in their official capacity or to reveal any confidential tactical or technical methods .

At the material time , national legislation did not contain any provisions on the use of undercover transactions or on the use of undercover agents .

On DATE ORG adopted an amendment to LAW whereby explicit provisions on certain unconventional preventive methods and investigative techniques , including undercover operations and induced deals , were added to LAW ) .

Chapter DATE , Article CARDINAL , of LAW no . CARDINAL , as in force at the relevant time ) , provided that ORG should not without special reason examine the authenticity of the lower court 's judgment beyond the arguments and facts adduced in the writ of appeal and the reply to the appeal . In the relevant Government PERSON ( no . CARDINAL/CARDINAL ) the interests of justice were mentioned as a possible ground dispensing a Court of Appeal from the restriction as regards the scope of its examination . It was also proposed that should the Court of Appeal examine arguments other than those put forward by the parties , it should invite the other party 's observations on the matter .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant is a limited liability company registered in GPE .

On DATE the applicant company purchased an aircraft from ORG ( PERSON державне авіаційне підприємство , hereafter “ the Enterprise ” ) for MONEY ( ORG ) . By DATE this amount had been paid in full to the Enterprise . On DATE the applicant company and the Enterprise signed an aircraft acceptance certificate , entailing , according to the applicant company , the transfer of ownership . On DATE a NORP crew – including the chief pilot Mr DATE flew the aircraft to GPE .

NORP Until DATE the aircraft underwent test flights at LOC , located in the GPE region . On DATE and for unspecified reasons , the aircraft was flown back to GPE where it landed at the Enterprise ’s airfield .

In the meantime , namely on DATE , a ORG officer had drawn up a report that customs rules had been violated . According to this report , when the aircraft had crossed the NORP - Russian border in DATE , it had been declared by officials of the Enterprise as temporarily exported for test flights whereas it had in fact been exported by way of sale to the applicant company .

On DATE the ORG authorities instituted criminal proceedings for the attempted smuggling of the aircraft to GPE . On an unspecified date the case was transmitted to ORG of ORG GPE по PERSON області , hereafter “ the USBU ” ) .

By rulings of DATE and CARDINAL DATE , the ORG investigator decided to classify the aircraft as material evidence ( визнав речовим доказом ) and attached it to the case file pending the outcome of the criminal proceedings .

On DATE the Deputy Head of ORG decided to put the aircraft up for sale by issuing a formal order to this effect ( ухвала про долю речового доказу ) .

NORP By letter of CARDINAL DATE the Acting Head of ORG informed the applicant company that the aircraft had been acquired by ORG ( hereafter “ the Ministry ” ) for amount of USD CARDINAL,CARDINAL .

On an unspecified date the ORG investigator charged PERSON with smuggling . In DATE , the same charge was brought against the Enterprise ’s Deputy Director General PERSON and DATE in DATE also against the Enterprise ’s Director General . The charge against the latter was subsequently dropped for lack of any corpus delicti .

NORP By letter of DATE , the Deputy Prime Minister of ORG requested the Prime Minister of GPE to expedite the criminal proceedings relating to the aircraft at issue .

On DATE the case was sent to ORG ( hereafter “ the ORG ” ) for trial proceedings . On DATE ORG allowed the applicant company to join the criminal proceedings as a civil claimant . On an unspecified subsequent date ORG joined the proceedings as a civil respondent .

At a preparatory hearing on DATE ORG held that further investigations were required and remitted the case to ORG ( hereafter “ the ORG ” ) , which filed an appeal against this decision .

On DATE ORG dismissed the prosecution ’s appeal , holding inter alia :

“ The AN-CARDINAL aircraft , which constitutes material evidence , was unlawfully sold at the pre - trial stage of the proceedings , thereby prejudging any subsequent court decision .

In view of the fact that [ the applicant company ’s ] ownership of the AN-CARDINAL aircraft is not disputed by anyone and that this company has been admitted as a civil claimant in the proceedings , the investigating authorities should take measures , as provided by law , in order to fulfil the claim in kind or to secure an equivalent amount of money . ”

The Deputy Prosecutor of the Kharkiv Region filed a protest ( extraordinary appeal ) against ORG decisions of DATE and DATE . On DATE the ORG of ORG dismissed this protest . As regards the decision of DATE , it found no reason to deny the applicant company the status of civil claimant in this criminal case .

On DATE , ORG submitted the case to ORG , which committed Mr I and Mr N for trial .

On DATE the applicant company requested ORG to quash the investigator ’s order of DATE to put the aircraft up for sale or , alternatively , to impound the aircraft pending trial . On DATE , ORG dismissed the first request and DATE accepting the applicant company ’s argument that operating the airplane would entail wear and tear and depreciate its value – accepted the request to impound the aircraft for the duration of the criminal proceedings .

On DATE the ORG of Kyiv arrested the aircraft which , at that time , was parked at GPE airport . However , according to a letter dated DATE by the Head of ORG , the arrest could not be maintained as the aircraft had disappeared from its parking place at this airport .

On DATE ORG ordered ORG to inform the court of the whereabouts of the aircraft and to implement its seizure order of CARDINAL DATE .

On DATE ORG of GPE filed a note with ORG of GPE , stating that it “ would be grateful for the return as soon as practically possible of the AN-CARDINAL aircraft to [ the applicant company ] ” .

On DATE ORG appealed against the seizure order of CARDINAL DATE to the President of ORG and requested its suspension pending the determination of the appeal . On DATE ORG granted this request and suspended the enforcement of the seizure order . No further information about these appeal proceedings has been submitted by the applicant company . Apparently , the seizure order has never been implemented .

On DATE ORG decided to disjoin the applicant company ’s civil claim from the criminal case , considering that it would be more appropriate to determine it in civil proceedings . The applicant company appealed .

On DATE the ORG found that the pre - trial investigations were insufficient and remitted the case to ORG . The accused Mr N. appealed .

On DATE ORG examined both appeals . It upheld ORG decision to remit the case for additional investigations , but quashed the impugned decision of DATE and reinstated the applicant company ’s status as civil claimant in the criminal proceedings .

On DATE the ORG forwarded the case to ORG of Kharkiv ( hereafter “ the ORG ” ) for trial proceedings .

On DATE ORG accepted a request filed by the applicant company to seize the aircraft pending the trial proceedings .

In the course of a hearing held on DATE , the ORG challenged the above seizure order on the ground that the law did not entitle a court to order a general seizure of ORG property , but only to order the owner to refrain from specified actions . ORG held that there was no proof that the ORG owned the impugned aircraft . In particular the sales contract was said to be lost and the license to operate the plane , issued by ORG , authorised a certain ORG unit to use it , without any reference being made as to who was its owner . However , the court decided to quash its ruling of CARDINAL DATE and prohibited the ORG from disposing of the aircraft in any form whatsoever and from moving it outside the GPE airport , where it was stationed at the material time .

In the meantime Mr I. died and the charge against him was dropped .

On DATE ORG acquitted PERSON , who by that time had become the sole defendant in the proceedings , on the ground of lack of corpus delicti ( відсутність складу злочину ) . The court further held that that the investigating authorities’ decision to sell the aircraft was unlawful . Moreover , there was no cogent proof of the ORG ’s ownership of the aircraft . The aircraft , which thus remained the applicant ’s property and an item of material evidence , could be disposed of by a court in a judgment on the criminal case . Based on these findings ORG ordered that the aircraft be handed over to the applicant . It , however , found that it had no jurisdiction , in the criminal case , to entertain the applicant company ’s claims for damages against ORG , the Enterprise , the ORG and the ORG . The prosecutor , the applicant company , the ORG and PERSON N. ( who considered that he should have been acquitted for lack of any offence DATE відсутність події ) filed appeals against this judgment .

On DATE the ORG ( hereafter “ the ORG ” ) decided not to entertain the prosecution ’s appeal on the ground that it was not signed by the prosecutor who had participated in the proceedings before the first instance court . The appeals of ORG , the applicant and PERSON were rejected as unsubstantiated . The same parties made cassation appeals .

On DATE ORG quashed the decision of DATE and remitted the case for fresh appellate hearing on the ground that ORG refusal to entertain the prosecutor ’s appeal had not been reasonable .

On DATE ORG granted the appeal of the prosecutor , quashed the judgment of CARDINAL DATE and remitted the case to ORG for further pre - trial investigations .

The investigation in the case is still pending .


Violation of Art. 5-1;Violation of Art. 6-1;Violation of Art. 6-3-c

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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

On an unspecified date the applicant was charged with disorderly conduct . On DATE he signed an undertaking not to leave the town .

On DATE the Justice of the Peace of LOC of GPE found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment , conditionally suspended for DATE . It ordered the applicant to remain in the town until the conviction became final . The applicant and the prosecutor appealed .

On DATE ORG of GPE upheld the applicant 's conviction on appeal . It revoked the suspension of the sentence , however . On DATE the applicant was taken into custody .

Further to a cassation appeal lodged by the applicant , on DATE ORG of GPE quashed ORG judgment of DATE and remitted the case to ORG for fresh examination . ORG noted that ORG had failed to observe the procedure pertaining to the presentation of the final submissions by the parties and to classify the conviction in full compliance with the applicable substantive law .

The applicant remained in custody . He allegedly complained to the director of the remand prison that his continued detention was not based on a judicial decision and asked to be released . The director responded by informing him that a certain “ Judge PERSON had told him not to release the applicant until further notice . The applicant also complained to ORG but received no reply .

On DATE ORG fixed an appeal hearing for DATE . Neither the applicant nor his counsel attended the hearing . As regards the applicant 's detention , the court noted as follows :

“ The preventive measure , notably placement of [ the applicant ] in custody , should remain unchanged . ”

According to the applicant , he received a copy of the decision of CARDINAL DATE on DATE . Therefore , he considered that he had missed the DATE time - limit for challenging the decision in question and did not lodge an appeal against it .

On DATE ORG upheld the applicant 's conviction on appeal and revoked the suspension of his conditional sentence . The applicant was represented by PERSON , state - appointed counsel . Both the applicant and the prosecutor appealed .

ORG scheduled a hearing for DATE . On CARDINAL DATE the court dispatched summonses to the parties , including the applicant and his counsel , notifying them of the date and time of the hearing .

On DATE ORG held the cassation hearing . It heard the prosecutor and granted his request to reclassify the charges against the applicant . It found the applicant guilty of battery and sentenced him to DATE , DATE and DATE imprisonment . The applicant was neither present nor represented .

A defendant can be remanded in custody or his detention can be extended only on the basis of a judicial decision ( NORP LAW , Article CARDINAL ) . The court should make the relevant decision upon a reasoned request by the prosecutor or the investigator supported by appropriate evidence ( Code of Criminal Procedure , Article CARDINAL § CARDINAL ) or of its own motion ( Code of Criminal Procedure , LAW ) .

When considering a cassation appeal lodged by CARDINAL of the parties to the criminal proceedings , the cassation court is required to decide whether or not a preventive measure , including placement in custody , should be applied pending a new hearing ( Code of Criminal Procedure , Article CARDINAL § CARDINAL ) .

ORG of GPE provided the following interpretation of the relevant parts of LAW no . CARDINAL “ on application of the rules set forth in LAW governing appeal and cassation proceedings , adopted on DATE , as amended ) :

“ CARDINAL . When quashing the verdict or any other judicial act and remitting the matter for fresh consideration to the trial or appeal court or to the prosecutor , the cassation court should , if asked by the prosecutor or of its own motion , decide whether to apply a preventive measure in respect of the defendant who is held in custody , the aims [ of this decision ] being the protection of the rights and legal interests of the parties to the proceedings and the proper conduct of the court hearing within a reasonable time . The court may impose any of the preventive measures authorised by [ law ] provided it ensures that the said aims are achieved .

When deciding to extend the defendant 's detention ... , the cassation court should specify ... the exact time - limit of the [ detention ] . If , on the date of the decision , the earlier imposed detention period has not expired and this period is sufficient to secure the above - mentioned aims , [ the court ] should indicate ... that the previously imposed detention will remain unchanged . In any event , [ the court ] should state the reasons for its decision . ”

The failure of a party , who has been duly notified of the date , time and place of the cassation hearing , to attend the hearing should not preclude the court from proceeding with the examination of the case ( Code of Criminal Procedure , Article CARDINAL § CARDINAL ) .

If a convicted person wishes to take part in the appeal hearing , he or she must indicate this request in his statement of appeal ( Code of Criminal Procedure , LAW ) .

If the court is unable to proceed owing to the absence of a party summoned to court , it must adjourn the hearing ( Code of Criminal Procedure , Article CARDINAL § CARDINAL ) .