CASE OF KLEYN AND ALEKSANDROVICH v. RUSSIA

Remainder inadmissible (Article 35-1 - Six month period);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The first applicant , born in DATE , is the widower of the late Ms Fatsima Aleksandrovich , a GPE national of GPE ethnicity , who was born in DATE and died in DATE . The second applicant is her son , born in DATE . The applicants are NORP nationals living in LOC .

The applicants provided the following account of the circumstances surrounding PERSON arrest and death which was not disputed by the Government .

At TIME on DATE PERSON was travelling on a bus in GPE with the first applicant ’s sister , PERSON . PERSON , a police officer who worked for the passport service of the GPE police department , was travelling on the same bus when she realised that her purse was missing . She told her colleague , police officer Mr PERSON , that her purse was gone . Mr M. searched the bus and found the purse under a seat . Ms Aleksandrovich being of GPE ethnicity , PERSON assumed that she had stolen the purse and arrested her . She asked why , but PERSON hit her on the head and said , “ Only a Gypsy could steal the purse , who else ? ” PERSON was not arrested .

PERSON was taken to the GPE regional police station . The acting head of the station asked the senior operational officer of the property offences investigations division Mr I. to interview her . When asked about her identity , PERSON claimed to be one PERSON , born in DATE . According to PERSON , she was nervous , complained of stomach pain and often asked for permission to use the toilet . Several times he had to take her to the toilet located on the second floor ( in LANGUAGE called “ third floor ” ) of the police station , where female police officers PERSON or PERSON stayed with her . The last visit was just before TIME Since there were no female officers to accompany Ms Aleksandrovich , PERSON let her go inside alone and waited by the door of the toilet .

The door of the toilet was not locked . A witness , PERSON . , who was in the toilet , saw PERSON and stated that she was moaning with pain and holding her stomach . PERSON . left the toilet shortly after this .

At TIME on CARDINAL DATE an officer on duty found PERSON unconscious on the ground in the yard of the GPE regional police station . It appeared that she had jumped out of the toilet window . An ambulance took her to the GPE regional hospital , where she died on CARDINAL DATE without regaining consciousness .

Between CARDINAL and TIME on DATE the investigator from the GPE regional police station compiled a report on an examination of the crime scene , which was carried out in the presence of CARDINAL attesting witnesses ( понятые ) . Photographs were taken of PERSON body , the building , the yard , and the toilet door and window .

On DATE the senior investigator with the PERSON prosecutor ’s office ordered an inquest into the circumstances of PERSON death and an autopsy on her body .

The medical report was completed on DATE . It concluded that she had died as a result of a cerebral trauma and numerous bodily injuries . The expert found : haemorrhages of the soft tissue of the head with cerebral trauma ; fracture of the left side of CARDINALth neck vertebra ; fracture of the side growths of DATE , and CARDINALth vertebrae ; internal tear of the right kidney ; extensive haemorrhages of the soft tissue of the left side of the vertebrae ; swelling of the left eyelid ; swelling of the right forearm ; bruises on the extremities . These injuries had been caused by the impact of blunt objects and could have been the result of striking such objects following a fall from the third floor .

On DATE the senior investigator issued a decision refusing to institute criminal proceedings into PERSON death . He had collected statements from police officers PERSON , PERSON , PERSON , PERSON and the witness PERSON . , and found as follows :

“ As at the moment of PERSON fall out of the window of the toilet situated on the third floor of the GPE regional police department , there was no one in the toilet but the deceased , the possibility is excluded of actual physical action by anyone wishing to take her life . The actions by PERSON and PERSON preceding Ms Aleksandrovich ’s death had been taken as part of their official duties ... Thus , PERSON PERSON acted in keeping with the requirements of LAW , which required him to take measures to prevent and to stop administrative offences or crimes . In the circumstances the measures were taken on the basis of the statement by PERSON , who identified PERSON as the person who had attempted to steal her purse . Mr I. ... took measures to establish PERSON identity . The period between the time of arrest and the time of her fall was no more than the TIME limit set out in LAW . During the interview Mr I. did not put any pressure on PERSON . He had not known her before and he took measures to give assistance to PERSON , who was unwell , as well as to prevent her from behaving inappropriately . ”

DATE , on DATE , PERSON , acting as counsel for the first applicant , lodged an appeal with ORG against the decision refusing to institute criminal proceedings .

On DATE the ORG allowed the complaint . It found that the inquest had been incomplete , that PERSON identity had not been conclusively established , that the collected samples and histological studies had not been examined , and that the causation of the multiple injuries had not been explained .

On DATE the GPE town prosecutor revoked the decision of DATE and asked the investigator PERSON . to carry out a further inquiry .

On DATE Mr Ts . issued CARDINAL decisions . CARDINAL decision refused to institute criminal proceedings in connection with PERSON death ; the other decision commissioned a new medical study into the reasons for the bodily injuries and death of Ms Aleksandrovich . Further to the ORG complaint , the GPE town prosecutor set aside the decision refusing to institute criminal proceedings as taken prematurely in the absence of the findings of the medical examination .

On DATE the medical expert produced his report . It stated that all the injuries had been caused within a short period of time DATE before the death , possibly on DATE . The injuries could have resulted from a fall from a height of MONEY because of their condensed localisation and great magnitude . No signs of a multi - phased fall or contact with any other objects could be detected .

On DATE Mr Ts . issued a new decision refusing to institute criminal proceedings in connection with PERSON death . He noted in particular that the first applicant had been invited to make a statement but had never appeared .

On DATE counsel for the first applicant lodged an appeal against the investigator ’s decision with ORG .

On DATE ORG dismissed the appeal as unsubstantiated . It found that there was no evidence , medical or otherwise , to support the theory that the injuries had been caused by ill - treatment rather than by DATE from the window .

Following an appeal by the first applicant , on DATE the ORG quashed ORG decision . It noted that , under NORP law , experts and witnesses may only be held criminally liable for perjury if they have been examined as part of a criminal case . As criminal proceedings were never instituted , the first applicant ’s access to justice was barred . It also noted that police officers are responsible for the life and health of those individuals who , like PERSON , have been taken to a police station under constraint . ORG remitted the matter for a new examination by a different bench of ORG .

On DATE the ORG , during a new examination , found the investigator ’s decision unlawful , for the following reasons :

“ Establishment of the circumstances and cause of PERSON death , as well as the mechanism of causation of injuries on her body , is only possible by means of investigative actions and expert examinations carried out as part of a pending criminal case .

In addition , the official who refused to institute criminal proceedings did not give a legal opinion on the actions of police officers , who have a duty to supervise individuals who have been forcibly taken to the police station , with a view , in particular , to preventing self - harm . ”

ORG instructed the prosecutor to carry out a further inquiry . The prosecutor lodged an appeal against the decision but subsequently withdrew it .

On DATE the GPE town prosecutor revoked the decision of DATE and ordered an additional inquiry .

On DATE the investigator Mr Ts . issued a further decision refusing to institute criminal proceedings . That decision summarised the existing evidence and reached the conclusion that :

“ ... During the last visit to the toilet [ Mr I. ] could not find – for objective reasons – any female police officers who would be free from their duties , and Ms Aleksandrovich was in the toilet alone . It follows that DATE from the window situated on the second floor of the GPE regional police station was the result of a deliberate action on the part of PERSON . ”

A criminal case may be instituted on the basis of , in particular , a complaint or report by a citizen ( LAW ( CARDINAL ) ) or the finding of indications of a criminal offence by an investigator or prosecutor ( LAW ) .

A prosecutor , investigator , police officer or a judge ought to receive reports about any committed or planned crime and act on them within DATE of receipt or , in exceptional cases , DATE . They may obtain necessary materials or explanations but not carry out any investigative acts . They should take the decision to open a criminal case , to refuse to institute criminal proceedings , or to refer the case to the competent authority and notify the complainant thereof ( Article CARDINAL ) .

A prosecutor , investigator , police officer or judge should institute a criminal case if there is a motive and grounds for opening criminal proceedings ( Article CARDINAL ) .

The victim ( потерпевший ) shall have the right to take part in criminal prosecution of the defendant ( Article CARDINAL ) . The decision to recognise the procedural status of a victim may be taken by an investigator or a judge ( Article CARDINAL § CARDINAL ) .

The victim has in particular the following rights : to submit statements and evidence , to take part in investigative acts which are carried out at his request , to read the findings of a forensic study , to obtain copies of decisions concerning the institution of criminal proceedings and their discontinuation or adjournment , and to participate in the trial and appeal proceedings ( LAW ( DATE , DATE , DATE , DATE and DATE ) ) .


PREVLJAK AND OTHERS v. BOSNIA AND HERZEGOVINA

George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , ORG , PERSON , Mr PERSON and PERSON , are citizens of GPE and GPE who were born in DATE , DATE , DATE and DATE , respectively . They were represented before the ORG by ORG , a law firm based in GPE . The Government of GPE ( “ the Government ” ) were represented by their Agent , ORG .

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

The applicants were registered owners of a public road running alongside their house in PERSON .

On DATE the Konjic Municipality started civil proceedings against the applicants before ORG . It maintained that the applicants had mistakenly been registered as the owners of the road and requested the rectification of the register .

On DATE ORG dismissed the claim . It held that the applicants had acquired the title by adverse possession .

On DATE ORG ruled in favour of GPE on the grounds that public roads were not subject to the rules on adverse possession . It appears that the register was then rectified and that the ORG title to the road was extinguished as a result .

On DATE the applicants lodged an appeal on points of law with ORG as well as an appeal with ORG .

On DATE ORG rejected the case as premature as it was still pending before ORG . It instructed the applicants that they could again lodge a constitutional appeal after ORG had rendered its decision .

On DATE ORG rejected the appeal because the value of the claim did not exceed MONEY ( BAM ) and the case did not raise any questions affecting the application of the law in other cases .

On DATE the applicants lodged a new constitutional appeal , as instructed by ORG in its decision of CARDINAL DATE .

On DATE ORG rejected the case as out of time . It held that the appeal on points of law had not been an effective remedy and that the applicants should have therefore lodged a constitutional appeal within DATE from the delivery of the judgment of CARDINAL DATE . On DATE the applicants requested ORG to revise that decision in view of the fact that they had lodged their first constitutional appeal regarding the same matter on DATE . On DATE ORG accepted that request . On DATE it examined the merits of the case and dismissed the case as manifestly ill - founded .

The Roads Act DATE was in force at the relevant time ( from DATE until DATE ) . Section CARDINAL of that Act provided that public roads were a matter of general interest and that title to a public road could not be acquired . The Roads Act DATE , which entered into force on DATE , contains a similar provision ( see section CARDINAL of that Act ) .

LAW DATE has been in force since DATE . Under section CARDINAL of that Act an appeal on points of law is , in principle , not allowed if the value of the claim in issue does not exceed BAM CARDINAL , but ORG may exceptionally take such a case if it considers that it raises a question affecting the application of the law in other cases .

The current Rules have been in force since DATE . Under Rule CARDINAL a party may , in the event of the discovery of a fact which might by its nature have a decisive influence on the outcome of the dispute concerned and which , when a decision was taken , was unknown to ORG and could not reasonably have been known to that party , request ORG , within DATE after that party acquired knowledge of the fact , to revise that decision .

In principle , if a constitutional appeal concerns civil proceedings dealing with a claim the value of which does not exceed BAM CARDINAL,CARDINAL , an appeal on points of law is not considered to be an effective remedy for the reason that ORG deals with the merits of such appeals only exceptionally ( section CARDINAL of LAW DATE ) . Therefore , ORG will not reject such a case on non - exhaustion grounds only because an appellant has not lodged an appeal on points of law . In the same way , ORG will reject such a case as out of time if an appellant has awaited the outcome of his or her appeal on points of law and has thus lodged a constitutional appeal DATE from the date of delivery of the second - instance decision ( unless ORG has exceptionally examined the merits of the case ) . However , if an appellant lodges a constitutional appeal in parallel with an appeal on points of law , ORG may reject the constitutional appeal as premature pending the outcome of the appeal on points of law even if the value of the civil claim in issue does not exceed BAM CARDINAL . If so , the appellant may lodge a second constitutional appeal within DATE from the date of delivery of the decision on the appeal on points of law ( regardless of weather ORG has dealt with the merits of that case or not ) .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the town of PERSON , GPE .

On DATE and CARDINAL DATE ORG ( hereafter “ the ORG ” ) awarded the applicant a total of ORG CARDINAL,CARDINAL against the ORG - owned ORG . CARDINAL ( hereafter “ the ORG ” ) for arrears of salary , redundancy pay and industrial disability benefits . The judgments became final and were remitted to ORG for compulsory enforcement .

In DATE and DATE ORG and ORG rejected as unsubstantiated the applicant ’s complaints against ORG ( the ORG ’s managing company DATE ) and the ORG for their failure to pay in due time and in full the sum awarded to him by the judgment of DATE .

In DATE and DATE ORG rejected on several occasions the applicant ’s criminal complaints against officials of ORG .

On DATE ORG decided to wind up the ORG , designating ORG as its successor .

The applicant instituted proceedings in ORG against ORG for failure to execute the decisions in his favour . On DATE , the court rejected the applicant ’s claim , finding no fault had been committed by the Bailiffs , who had demonstrated due diligence in enforcing the judgments in the applicant ’s favour , but the ORG ’s lack of funds had prevented them from securing the immediate payment of the awards .

In DATE and DATE , due to the on - going bankruptcy proceedings against the ORG , ORG forwarded on several occasions the applicant ’s writs of execution to the ORG ’s liquidation commission , which refused to accept them , referring to the company ’s lack of funds .

The judgments of DATE and CARDINAL DATE remain partially unenforced , the outstanding debts being ORG CARDINAL,CARDINAL and CARDINAL respectively .

Relevant domestic law may be found in the judgments of DATE in the case of ORG v. GPE ( no . CARDINAL , § § DATE ) and of DATE in the case of GPE v. GPE ( GPE DATE ) .


Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

NORP The applicant , PERSON , claims that she is a NORP national and that she was born in DATE . She currently lives in the GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. PERSON , of ORG .

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

On DATE , the applicant filed a request for asylum in the GPE . On DATE , the immigration authorities conducted a first interview ( eerste gehoor ) with her for the purposes of establishing her identity , nationality and travel itinerary . The applicant was assisted by a NORP interpreter . She stated that she was a citizen of GPE of GPE origin and that she hailed from PERSON in southern GPE , where she had always lived . She declared that she could speak a little NORP , namely PERSON , the PERSON clan language . She had married on DATE . Her husband had left for an unknown destination in DATE . He had not told her where he was going , just that he would come back . But she had not heard from him since . On DATE , she had left GPE for GPE from where she travelled on to GPE DATE . From there she had travelled by air , with CARDINAL stop - over in an unknown country , to the GPE where she had arrived on DATE . She had never had a passport and she had never held any travel documents . Her “ travel agent ” had kept the identity and travel documents throughout her journey and had abandoned her after her arrival in the GPE . Her mother , CARDINAL siblings and her CARDINAL children had remained in GPE .

On DATE , DATE and CARDINAL DATE , further interviews ( nadere gehoren ) were held with the applicant for purpose of clarifying her reasons for seeking asylum . Like before , the applicant was assisted by a NORP interpreter . She stated that her husband was a lorry driver and that , since he had left on DATE , he had not returned home . DATE after his departure , she and her CARDINAL children ( a son born in DATE and a daughter born in DATE ) had moved to her mother ’s who was also living in GPE . She had been bothered by men belonging to the ORG clan who twice came to her house to enquire about her husband ’s whereabouts . After she had told them that she did not know where he was , they had beaten and raped her . She had then decided to flee GPE . She had entrusted her CARDINAL children to her mother , and had left . Another reason for her flight was that , according to her uncle ’s wife , she had not been properly circumcised . Since the birth of her second child in DATE , her husband ’s family were putting her under pressure to undergo a further circumcision and to have her daughter circumcised , too .

NORP By letter of DATE , the Deputy Minister of ORG ( staatssecretaris PERSON ) informed the applicant that a language analysis for the determination of the applicant ’s origin was considered essential for the assessment of her asylum request and that , for this reason , the statutory defined CARDINAL months’ delay for determining the asylum request was prolonged by the maximum allowed period of DATE , i.e. until DATE . The applicant was further informed of the possibility of asking for a counter analysis . A recording was made of an interview with the applicant for the purposes of a language analysis .

On DATE , a report was drawn up on the language analysis test carried out by ORG ) , a specialised unit of ORG ( Immigratie- en ORG ; “ IND ” ) . According to the language analyst – a NORP native speaker from GPE DATE who had conducted this test , the applicant spoke NORP as commonly spoken in the coastal region of GPE / GPE . NORP was unequivocally her mother tongue and she had no active command of NORP , the dominant language spoken in her alleged area of origin in respect of which she was also unable to give concrete , detailed information . The language analyst unequivocally identified the applicant as not originating from a linguistic community in GPE but as a member of the linguistic and cultural community in GPE ( “ eenduidig te herleiden tot de spraak- en cultuurgemeenschap binnen GPE ” ) .

On DATE the Deputy Minister of ORG notified the applicant of her intention ( voornemen ) to reject the asylum request . The Deputy Minister considered that , as the applicant had not demonstrated either by documents or through her statements her stated nationality and identity and as it had appeared unequivocally from a language analysis that she did not originate from GPE , no credibility could be attached to her asylum account . The applicant was invited to submit within DATE written comments ( zienswijze ) on the intention . She was further requested to inform the Deputy Minister whether she intended to commission a counter analysis . If so , the delay for submitting written comments would be extended by DATE . This letter was accompanied by the report of DATE and a compact disc with the recordings used for the language analysis .

In her written comments of DATE , the applicant argued , inter alia , that the language analysis carried out was inadequate and stated that a counter analysis would be submitted as soon as possible and that , according to standing case - law which she did not specify further , this counter analysis should be taken into account in the determination of her asylum request .

On DATE , ORG gave a reaction to the applicant ’s comments on the language analysis test and its conclusion .

On DATE , the Deputy Minister rejected the applicant ’s asylum request for the same reasons as already given in the intention of DATE . The Deputy Minister rejected the request for a further stay of the determination of the applicant ’s asylum request and , noting that the applicant had not specified the case - law on which basis the Deputy Minister would be obliged to await the submission of a counter analysis , referred to the statutory maximum delay for decision .

The applicant ’s appeal against this decision was rejected by ORG ( rechtbank ) of GPE , sitting in PERSON , on DATE . It noted that the findings set out in the language analysis report contrasted with the applicant ’s statements about her alleged area of origin and , bearing in mind the absence of any concrete indications to doubt the accuracy of the report of CARDINAL DATE and that no counter analysis had been submitted by the applicant , considered that there was no doubt as to the correctness of the language analysis carried out .

NORP The applicant ’s subsequent appeal to ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) was dismissed on DATE . It upheld the impugned ruling of CARDINAL DATE on summary grounds for not raising any points of law . No further appeal lay against this ruling .

On DATE , the applicant filed a second asylum request which , pursuant to article CARDINAL of LAW ( PERSON ) , must be based on newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) warranting a revision of the decision taken . When interviewed on DATE on her reasons for filing a repeat asylum request , the applicant merely stated that she had done so because her first request had been rejected and that she had nothing further to add to her account .

On DATE , the applicant ’s lawyer submitted a report drawn up on DATE on a counter language analysis test carried out by PERSON , a professor of NORP linguistics and NORP language at ORG and by PERSON , a native NORP speaker . They concluded :

“ The applicant is a young NORP woman from the LOC . She does not speak about the ORG ; her claim to have been raised in a Bajuni - speaking family can not be confirmed nor disconfirmed , nor her claim to speak PERSON , natively or not . ”

This second asylum request DATE following a notification of intended rejection and the applicant ’s written comments thereon – was rejected by the Deputy Minister of ORG on DATE . As to the report of CARDINAL DATE , the Deputy Minister noted that the applicant had failed to mention the counter analysis in her interview of CARDINAL DATE and had submitted this report for the first time only on DATE , whereas she could and should have submitted this document at an earlier stage . Accordingly , the report of CARDINAL DATE was not accepted as a novum for the purpose of article CARDINAL of LAW . Further submissions made by the applicant were also not accepted as nova .

On DATE , following a hearing held on DATE attended by the applicant with the assistance of her lawyer , the applicant ’s appeal as well as her request for a provisional measure ( voorlopige voorziening ) were rejected by the provisional - measures judge ( voorzieningenrechter ) of ORG of The GPE sitting in PERSON , who held that the Deputy Minister had rightly rejected the applicant ’s second asylum request for not being based on any nova as referred to in article CARDINAL of LAW .

Although the applicant could have appealed this ruling to ORG , she did not do so .

On DATE the applicant was presented in person at the NORP mission in GPE . According to the report on this presentation drawn up on DATE by an official of the Repatriation and Departure Service ( PERSON ) of ORG , the TIME conversation between the applicant and the NORP officials was conducted in NORP . In this conversation the applicant indicated that she hailed from GPE , that she did not hold any document and that she did not wish to go to GPE . On the basis of this interview , the NORP mission refused to issue a laissez - passer to the applicant .

On DATE the applicant gave birth to a son in the GPE . On DATE , also on behalf of her son , the applicant filed a third asylum request . She submitted that it would be difficult for her to return to GPE with an adulterine son whose circumcision she moreover wished to prevent . She further submitted that she feared she would be killed by her husband or family for having given birth to an adulterine son . She further submitted inter alia that ORG and GPE had indicated that she was not a national of either of those countries , and that her case required a fresh language analysis to be carried out by a person from GPE .

On DATE the Deputy Minister of ORG notified the applicant of her intention to reject her third asylum request for the reason that it was not based on any nova as required under article CARDINAL of LAW . The Deputy Minister noted that the claim that the missions of GPE and GPE had indicated that the applicant was not a NORP or NORP national had remained unsubstantiated and that , as regards the risk of future circumcision of her son , the GPE asylum policy concerning a risk of circumcision only applied to potential victims of female circumcision . Moreover , as the applicant had not demonstrated that she hailed from GPE , no value could be attached to her claim that her son risked circumcision in GPE . The Deputy Minister further held , in the context of an ex officio examination of this question , that the applicant was not eligible for a residence permit for aliens who , through no fault of their own , were unable to leave the GPE as she had not demonstrated her alleged identity and nationality . Consequently , it could not be established in respect of which country this question should be examined . On DATE the applicant filed her written comments in reply to that intention ( zienswijze ) .

NORP In her decision of CARDINAL DATE , the Deputy Minister rejected the applicant ’s third asylum request . She maintained her position that the elements on which the applicant had based her repeat asylum request did not constitute newly emerged facts or altered circumstances within the meaning of article CARDINAL of LAW . The applicant lodged an appeal against this decision , and also applied for a provisional measure in order to be allowed to await the outcome of the appeal proceedings in the GPE .

On DATE , following a hearing held on DATE attended by the applicant ’s lawyer but not the applicant , the provisional - measures judge of ORG of The GPE sitting in GPE – although finding that the Deputy Minister had correctly and on good grounds concluded that the applicant ’s fresh asylum request was not based on newly emerged facts or altered circumstances in respect of the applicant herself – accepted the appeal in respect of the applicant ’s son , as his was a first and not a repeat request . Consequently , the provisional - measures judge quashed the impugned decision but further ordered that the legal effects of this decision were to remain valid as the origin and citizenship of the applicant remained undetermined and it was consequently impossible to determine her son ’s claim .

Although the applicant could have filed an appeal to ORG , she did not do so .

As the applicant and her son were no longer considered as lawfully staying ( rechtmatig verblijf ) in the GPE pending the determination of a request for a residence title , the provision to them of ORG - sponsored shelter and care facilities under LAW Regeling verstrekkingen asielzoekers ) was discontinued as from DATE , . In order to avoid the situation where they would be forced to live in the streets , the applicant and her son were temporarily admitted to a crisis care centre run by a private foundation . However , they were required to leave this centre by DATE at the latest .

On DATE the President of the Section decided , in the interests of the parties and the proper conduct of the proceedings before the ORG , to indicate to the Government of the GPE , under LAW , to ensure DATE without prejudice to the merits of the applicant ’s complaint under LAW concerning her expulsion – that the applicant and her son be provided with adequate accommodation pending their effective removal from the GPE .

The admission , residence and expulsion of aliens are regulated by LAW ( Vreemdelingenwet CARDINAL ) . Further rules are laid down in LAW ) , the Regulation on Aliens CARDINAL ( ORG DATE ) and LAW CARDINAL ( Vreemdelingencirculaire DATE ) . LAW ( PERSON ) applies to proceedings under LAW , unless indicated otherwise in this LAW .

Under LAW of LAW , an alien is eligible for a residence permit for the purposes of asylum if , inter alia ,

- he or she is a refugee within the meaning of the Convention relating to LAW DATE , or

- he or she has established that he or she has well - founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .

Under LAW , judicial review by ORG and ORG in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and , in the light of the interests at stake , could reasonably have taken the impugned decision ( marginale toetsing ) . Both before ORG and ORG it is possible to apply for a provisional measure ( voorlopige voorziening ) pending the outcome of the appeal proceedings .

Pursuant to article CARDINAL of LAW , a decision rejecting an alien ’s request for admission to the GPE for the purpose of asylum automatically has the following legal consequences :

- the alien is no longer lawfully residing in the GPE ;

- he / she is required to leave the GPE within DATE ;

- he / she is no longer entitled to housing / subsistence benefits , medical care and other ORG - sponsored reception facilities for asylum seekers ; and

- officials entrusted with the supervision of aliens are authorised DATE if the alien has not voluntarily left the GPE within the delay fixed for this purpose DATE to proceed with his / her effective removal from the GPE .

Under the preceding Aliens Act DATE , a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings . This is no longer possible under LAW DATE and a negative decision on an admission request is therefore known as a so called “ multi - purpose decision ” ( meeromvattende beschikking ) .

In a ruling of DATE ( ORG [ National Jurisprudence Number – “ LJN ” ] BGCARDINAL ) , ORG considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi - purpose decision on a request for a residence permit , that the competence to proceed with effective removal is a legal effect ipso iure ( rechtsgevolg van rechtswege ) of the refusal of such a request , and that this competence is not of a discretionary nature . Although in principle no further remedy lies against a multi - purpose decision , it also considered that in certain exceptional circumstances , such as a relevant change of circumstances having occurred during the delay between the refusal of the request and an act aimed at effective removal ( daadwerkelijke uitzettingshandeling ) , an objection ( bezwaar ) and subsequent appeal ( beroep ) may be filed against an act aimed at effective removal .

Under the Act on ORG for ORG ( PERSON Orgaan Opvang Asielzoekers ) and pertaining regulations , including LAW ( PERSON verstrekkingen asielzoekers en andere categorieën vreemdelingen ) , ORG for ORG ( “ ORG ” ) DATE an autonomous administrative authority – is responsible for the provision of reception facilities ( opvang ) , which comprise housing , basic subsistence means and health care to asylum seekers .

If no residence permit is granted to an asylum seeker , he / she will remain entitled to benefit from the reception facilities for asylum seekers for DATE after the date of the final decision taken on his / her request . During this period , the person concerned is to seek ways – if need be assisted by ORG to leave the GPE voluntarily as he / she is no longer lawfully staying in the GPE and under a legal obligation to leave . After the expiry of this period , access to reception facilities is automatically terminated without a specific decision . Nevertheless , an alien in such a situation may request ORG for continued reception facilities . In case highly exceptional circumstances so require , ORG can take a decision to that effect . A negative decision can be appealed to ORG and , subsequently , to ORG . Both before ORG and ORG it is possible to apply for a provisional measure pending the outcome of the appeal proceedings .

In a ruling given on DATE ( PERSON [ ORG – “ JV ” ] CARDINAL ) , ORG found that an alien is considered as having lawful stay ( rechtmatig verblijf ) in the GPE within the meaning of article CARDINAL of LAW DATE while an interim measure issued under Rule CARDINAL of ORG by the President of the Section is in place . For the duration of the validity of this interim measure , the person concerned is not under an obligation to leave the GPE and his or her removal from the GPE is unlawful . In such circumstances , the alien concerned remains entitled to provision of ORG - sponsored reception facilities under LAW and Other Categories of Aliens .


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant obtained a judgment of ORG ( PERSON міський суд PERSON області ) against ORG ( Лисичанська ТЕЦ ) , awarding him CARDINAL hryvnyas ( ORG ) in salary arrears and other payments .

This judgment was not appealed against , became final and the enforcement proceedings were instituted to collect the judgment debt .

NORP On numerous occasions the bailiffs notified the applicant that they were unable to collect the full amount of the debt , citing insufficiency of the debtor ’s funds and referring to the bankruptcy proceedings pending against it . They further explained that , since the ORG owned PERCENT of the debtor ’s share capital , it was therefore subject to LAW DATE “ on the LAW of a Moratorium on the Forced Sale of the State Property ” .

On DATE the bailiffs took a decision to terminate the enforcement proceedings , having determined that the applicant had received the full amount of the judgment debt due to him .

According to the applicant , fraction of the amount due to him remained outstanding .

The relevant domestic law is summarised in the judgments of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

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

While the applicants , a mother and her adult daughter , are NORP nationals they have resided for most of their lives in GPE . They arrived in GPE on DATE carrying valid passports and visas valid until DATE . They had come to stay with the first applicant ’s son . On DATE they applied for asylum and submitted that they would be at risk of ill - treatment and harassment on return to GPE . Allegedly , the second applicant would be called up for military service on return . Both applicants also referred to a risk based on their state of health as the first applicant suffered from old age in combination with Alzheimer ’s disease and the second applicant was diagnosed with Systemic Lupus Erythomathosis ( ORG ) , a chronic rheumatic disease . The second applicant submitted a medical certificate , issued on DATE by chief physician PERSON , which stated that she suffered from serious ORG and that she would have to undergo regular treatment and medication for long periods of time .

On DATE ORG ( Migrationsverket ) rejected the applicants’ request for asylum . ORG noted that they had waited DATE before applying for asylum which indicated that they were not in need of international protection . It was further noted that the second applicant had not been called up for military service , but she was likely to be excused from service due to her medical condition . She had visited GPE in DATE without any problems and she had been able to travel legally to and from the country . With regard to the applicants’ state of health , the first applicant ’s condition was not considered sufficiently serious . Furthermore , the ORG noted that the second applicant had been admitted to hospital and had received medical treatment in GPE in DATE , although a diagnosis could not be established . ORG could not find that the second applicant had made plausible that she would not receive appropriate medical care in GPE .

The applicants appealed to ORG ( Migrationsdomstolen ) in GPE and submitted additionally that they belonged to a small religious minority and were subject to persecution in GPE .

On DATE ORG rejected the ORG appeal . The court found that they had added new circumstances at a late stage of the proceedings and that there was no indication that they would be subjected to persecution due to their religious affiliation in GPE . Furthermore , it found no reason to believe that the applicants would be subjected to ill - treatment on the grounds that the second applicant had not done military service . The first applicant ’s medical condition was not considered to be of such a serious nature as to constitute grounds for asylum . With regard to the second applicant ’s medical condition , the court found that the submitted medical certificate did not substantiate that the illness was fatal . Furthermore , there was no indication that adequate care and medical treatment would not be available to the applicant in GPE .

On DATE ORG ( Migrations - överdomstolen ) refused leave to appeal .

The applicants turned anew to ORG and submitted , inter alia , a medical certificate concerning the first applicant and some correspondence from a physician working for ORG ( WHO ) in GPE and from ORG in GPE concerning the second applicant . The medical certificate , dated DATE , was issued by a general practitioner and stated that the first applicant had an alleged progressive memory problem and could occasionally not remember her daughter . There was no evidence , but strong indications of early Alzheimer ’s disease . According to the submitted correspondence , not all of the drugs that the second applicant had received in GPE were available in GPE and the management of complications such as thrombosis and , in the long run , renal complications was not possible there . There were allegedly difficulties in having haemodialysis since CARDINAL units were available for the whole country and there were regular breaks in service .

On DATE ORG refused to review the case as it found no new circumstances which constituted impediments to the enforcement of the expulsion . Concerning the first applicant , it was noted that she had received effective medical treatment and that her Alzheimer ’s disease had improved . With regard to the second applicant , the only medical certificate submitted had already been considered in the main proceedings .

On DATE ORG rejected the ORG appeal with regard to a review of the case in accordance with LAW , section CARDINAL of LAW .

The applicants turned again to ORG and submitted an additional medical certificate , issued by a specialist physician on DATE , concerning the second applicant . The certificate stated that if the necessary medication were stopped this would , within DATE or DATE , lead to fatal complications .

On DATE the ORG noted that the medical certificate described the progression of ORG in general terms as well as general treatment methods . It had not been issued by the second applicant ’s own doctor and the ORG noted that no information was submitted concerning the applicant ’s state of health for the period DATE . ORG did not question the submitted mail correspondence with the ORG , but found that the applicant had failed to substantiate that there were no alternative medicines available in GPE . Furthermore , it was considered that the correspondence had taken place in DATE and there was no new information on the applicant ’s state of health or required medicines for treatment . ORG found that the applicants had failed to substantiate any impediments to enforcing the expulsion to GPE .

On DATE the applicants were deported to GPE , but no information has been submitted as to their situation following their return .

The provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW ( Utlänningslagen , GPE ) .

LAW , section CARDINAL , of the LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE .

According to LAW , section CARDINAL , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , membership of a particular social group , religious or political beliefs , grounds of gender , sexual orientation and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , section CARDINAL ) .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , section DATE , where new circumstances have emerged which imply there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to treatment as referred to in LAW , sections CARDINAL and CARDINAL , or that there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , sections CARDINAL and CARDINAL , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so . Should the applicable conditions not have been met , ORG shall decide not to grant a reexamination ( LAW , section CARDINAL ) .

ORG report , ORG DATE ( pp . CARDINAL ) , published in DATE , stated that :

“ Since independence in DATE , GPE has made considerable progress in promoting equitable , accessible and affordable health services to the majority of its citizens with the support of its partners . This is demonstrated by the significant improvement of health indicators .

The health infrastructure has made considerable progress . ... Over CARDINAL different medical products are locally produced ; key medicines are available in PERCENT of health facilities and there is no shortage of supplies and equipment . ... Chronic diseases like diabetes , hypertension , mental health and infectious diseases like tuberculosis , HIV / AIDS and other sexually transmitted diseases are treated free of charge .

... [ T]he country still experiences acute shortage of human resources particularly at the peripheral level of the healthcare delivery system . ”


Violation of Art. 5-3 with regard to failure to bring promptly before a judge;Violation of Art. 5-3 with regard to the length of detention on remand;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in GPE .

During DATE the applicant was a university student in finance in the town of PERSON , at the GPE river . He was also the manager of a sportshoes shop in the town of ORG , in northeastern GPE ( situated at QUANTITY from GPE ) , owned by his girlfriend .

On DATE , a NORP citizen living in GPE , drove through GPE in a jeep with a trailer to transfer a corpse from GPE to GPE . At TIME he stopped on the ringroad of GPE . A car stopped in front of the jeep , CARDINAL men came out of it and approached the vehicle . CARDINAL of them tried to hit Mr E.S.A. with a hammer through the jeep 's window . Another got into the jeep and attacked him with a knife . Mr E.S.A. managed to knock off the knife , but in the meantime the man with the hammer hit him in the face . Then the CARDINAL men threw Mr E.S.A. out of the vehicle , kicked him several times while he was lying on the ground , and drove away with the jeep .

At TIME on DATE PERSON stopped her car in front of the house of a friend of her mother 's and stepped out to wipe the ice from the windscreen . A man wearing a wool hat approached her , threatened her , sat in the driver 's seat of her car and drove away .

An investigation into the first incident was opened on DATE . Mr E.S.A. was presented with photographs of several persons , including the applicant , and later was questioned . He identified the applicant as CARDINAL of the assailants and described the assailant as having a dark complexion and short brown hair . Apparently the identification procedure was tainted as the investigator did not , as provided by LAW ( “ the ORG ” ) , question Mr E.S.A. about the distinctive features of the person to be identified prior to presenting him with the photographs . It also seems that the record was not signed by CARDINAL of the certifying witnesses , as required by the ORG .

Following the identification , the investigator drew up a ruling to summon the applicant . On CARDINAL and DATE a process server visited the applicant 's home to deliver the summons but was informed by a neighbour that the applicant was absent .

On DATE the investigator charged the applicant in absentia with aggravated robbery and ordered his detention .

On DATE a prosecutor of ORG confirmed the investigator 's order for the applicant 's detention .

On DATE the applicant was listed in a police posting as a wanted criminal suspect .

On DATE several police officers went to the home of the applicant to arrest him . They informed his parents that he was wanted . The applicant 's mother told the officers that she had spoken with the applicant DATE and that he was in PERSON taking his university examinations .

DATE , DATE , the applicant 's mother went to ORG and , being a practising lawyer , requested permission to represent the applicant together with another lawyer . She requested the investigator to allow her to get acquainted with the charges and informed him that the applicant would appear for questioning in a DATE 's time . The investigator refused to acquaint her with the charges .

The applicant refused to appear for questioning . According to him , this was due to his believing that the accusation was “ false and absurd ” and to his fear of being illtreated in custody .

On DATE the police issued a nationwide search warrant for the applicant . According to the applicant , in practice no steps were undertaken in that respect and he was not hiding , but staying in hotels in PERSON and taking his examinations .

On DATE a prosecutor from ORG ordered the investigator to allow the applicant 's mother to participate in the proceedings .

On DATE the applicant 's lawyers requested the examination of several witnesses who , it was asserted , could establish his alibi . They argued that at the time of the alleged offence the applicant had been in ORG in connection with the investigation of the robbery of the shop he was managing there . On unspecified dates later in the DATE CARDINAL witnesses testified that the applicant had been in ORG prior to and at the time of the attack on ORG in GPE .

On DATE the investigator proposed that the investigation be stayed on the ground that the applicant was missing and sent the case file to ORG .

On DATE a prosecutor from that office refused to stay the investigation and ordered the carrying out of further investigative steps . She found , inter alia , that the photographs pursuant to which the applicant had been identified and the report from the examination of the crime scene were missing from the case file and that Mr E.S.A. had not been properly questioned .

In DATE the applicant 's lawyers requested that the order for his detention be rescinded . They relied on the fact that the identification procedure with the participation of ORG was flawed and on the testimony that the applicant had been in ORG at the time of ORG robbing .

The Sofia City Prosecutor 's Office rejected the request by an order of CARDINAL DATE , reasoning that the proceedings were at a too early stage , that the applicant had been charged with a serious intentional offence and that there was no indication that he would not abscond , obstruct the investigation or commit another offence . In particular , the applicant was in hiding .

On DATE the investigator again proposed that the proceedings be stayed on the ground that neither the applicant , nor Mr E.S.A. could be located .

On DATE the applicant 's lawyers unsuccessfully requested from ORG to replace the investigator .

On DATE ORG stayed the proceedings because ORG had to be summoned from GPE , where he was living , for questioning .

On DATE the applicant 's lawyers requested from ORG to rescind the order for the applicant 's detention . ORG Office refused . It reasoned that there was no indication that if not in custody , the applicant would not abscond , obstruct the investigation or commit another offence . In particular , he was in hiding .

On DATE the proceedings were resumed because Mr E.S.A. had arrived in GPE and could be questioned . During questioning he stated that the person who had assaulted him with a hammer had been a man of medium height , aged DATE , with short hair and brown eyes . In contrast to his earlier statement , he testified that the attacker had been lightskinned .

On DATE Mr E.S.A. was questioned again and said that during the DATE identification he had been presented with CARDINAL or CARDINAL pictures , not CARDINAL as had been stated in the record .

On DATE the applicant 's lawyers again requested from ORG to rescind the order for the applicant 's detention . They argued that the evidence thus far adduced convincingly demonstrated that the applicant was not Mr E.S.A. 's attacker . ORG Office replied that it could not rule on the request .

A renewed request dated DATE remained unanswered .

On DATE the investigator proposed that the proceedings be stayed because the applicant was missing .

By an order of DATE ORG refused to stay the proceedings and sent the case back to the investigator , reasoning that its earlier instructions for additional investigative steps had not been complied with and that key pieces of evidence had not been gathered . It also noted that no effective actions had been undertaken to locate and apprehend the applicant .

In the meantime , on or DATE , an investigation relating to the robbery of PERSON car ( see paragraph CARDINAL above ) was opened by ORG .

On DATE the picture of the applicant appeared in the DATE newspapers . When PERSON saw the pictures , she went to the police and stated that it was the applicant who had robbed her car .

On DATE the applicant , after consulting with his lawyers , turned himself in . He was then formally presented with the charges against him .

On DATE PERSON was questioned . She described the offender as a DATE man with a large mouth and big eyes .

On DATE the applicant was charged with robbing Ms M.V. 's car .

On DATE the investigator in the proceedings relating to Mr E.S.A. 's robbery recommended that the charges against the applicant be dropped , as it appeared that he was not the offender . By an order of CARDINAL DATE ORG refused and returned the case for further investigation .

On DATE ORG , which was supervising the proceedings relating to ORG robbery , took charge of the investigation relating to PERSON robbery as well . It ordered an additional questioning of PERSON with a view to establishing , inter alia , on what basis she was able to identify the applicant and whether she was categorical about that .

On DATE the CARDINAL investigations were merged .

On DATE the investigator proposed that the applicant be committed for trial for the alleged robbery of PERSON car but that the charges in respect of the robbery of Mr E.S.A. be dropped .

On DATE ORG refused to drop the charges , ordered additional investigative actions , and decided that the applicant was to be indicted for both offences .

On DATE the investigator presented the applicant with the amended charges , proposed that he be committed for trial and transmitted the case file to ORG .

DATE . On DATE ORG submitted to ORG a twocount indictment against the applicant .

On DATE the reporting judge set the case down for hearing on DATE and ordered that Mr E.S.A. be summoned from GPE , where he resided , by letter rogatory .

The summons was served on Mr E.S.A. not later than CARDINAL DATE .

The first hearing was held on DATE , at which another judge was presiding . The court heard testimony from CARDINAL witnesses . A second hearing was scheduled for DATE because Ms ORG and CARDINAL other witnesses failed to show up .

During the hearing on DATE the ORG questioned PERSON and the other witnesses . Mr E.S.A. 's testimony from the preliminary investigation was read out before the court because he was absent from the hearing .

On DATE the ORG gave judgment , acquitting the applicant of all charges against him . However , the court did not announce the reasons for its judgment until DATE . It held that PERSON and ORG testimony regarding the physical features of the offender was very unreliable . The court also refused to take into account the results of the photograph identification made on DATE by ORG ( see paragraph CARDINAL above ) , holding that it had been effected in breach of the relevant rules of evidence and was thus inadmissible . Finally , the court found it established that the applicant had an alibi in respect of both alleged offences . As regards the first alleged offence , it found that at the time of the robbery of Mr E.S.A. the applicant had been in ORG because the shop he had been managing there had been robbed DATE before that . As regards the second alleged offence , the court held that at the time of the robbery the applicant had been visiting a friend together with his girlfriend .

On DATE ORG appealed against the judgment to ORG , stating that GPE had not properly established the facts . The appeal did not mention further particulars in support of this position and stated that additional arguments would be provided after the announcement of the reasons for the judgment by ORG .

On DATE the applicant 's lawyer requested ORG to declare the prosecution 's appeal inadmissible for failure to specifically describe the non - elucidated facts .

On DATE , after having received on DATE the reasons for ORG judgment ( see paragraph CARDINAL above ) , ORG filed an “ additional submission ” which contained detailed arguments in support of its appeal . It submitted that GPE had erroneously assessed certain witness testimony and that its findings of fact had not reflect correctly the evidence presented .

On DATE the applicant 's lawyer made an objection , arguing that the prosecution 's appeal should be declared inadmissible as the first filing had been defective and the “ additional submission ” – allegedly the valid appeal – had been lodged out of time .

ORG accepted the appeal for consideration , briefly noting that the detailed argumentation had been filed later because of the late announcement of the reasons for ORG judgment and that there was no indication that the appeal was out of time .

A hearing was held on DATE at which oral argument was heard but no new evidence presented .

On DATE ORG quashed the acquittal and remitted the case to ORG on the ground that on DATE the applicant had been charged in violation of the procedural requirements , his signature being missing from TIME of the charging . Thus , it was unclear whether he had understood the nature and the cause of the accusation against him . That amounted to a serious violation of the applicant 's defence rights , despite the fact that his lawyers had been present at the charging .

The court 's judgment was not subject to appeal , as it did not put an end to the criminal proceedings .

On DATE ORG returned the case to the investigator , instructing him to carry out certain investigative actions .

The applicant was charged anew on DATE . The investigator recommended his committal for trial .

On DATE ORG submitted to ORG an indictment against the applicant .

On DATE the reporting judge set the case down for hearing on CARDINAL , CARDINAL and DATE .

The Sofia City Court held several hearings on CARDINAL , CARDINAL and DATE , CARDINAL DATE and DATE and DATE and DATE .

DATE . In a judgment of DATE the ORG again acquitted the applicant of all charges against him . The court held that Mr E.S.A. 's testimony about the physical features of the offenders was controversial and unreliable . It also held that the photograph identification was inadmissible because effected in breach of the relevant rules of evidence ( see paragraph CARDINAL above ) . The court went on to hold that PERSON testimony about the physical features of the person who had robbed her was likewise unreliable . The court further held that the applicant had an alibi for both offences . As regards the first alleged offence , from CARDINAL till DATE the applicant had been in ORG , because the shop he had been managing there had been robbed on DATE . He had stayed at a friend 's house and had met officers from the local police station and several other persons . He had taken a train in TIME DATE , at TIME , and had arrived back in GPE in TIME of DATE . As regards the second alleged offence , the court held that at the time of the robbery the applicant had been visiting a friend together with his girlfriend .

On DATE ORG appealed against the judgment to ORG .

The Sofia Court of Appeals held a hearing on DATE .

In a judgment of DATE ORG upheld the acquittal .

No appeal was lodged against the judgment and it entered into force on DATE .

On DATE the applicant turned himself in and was detained pursuant to the investigator 's order of CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE , when the applicant was also charged with robbing PERSON car , his detention was confirmed by the investigator on the ground that another investigation was pending against him .

On DATE ORG held , in response to an application for bail , that the applicant had been charged with a serious intentional offence , that there was a risk that he would flee , jeopardise the investigation , or reoffend . In particular , prior to his arrest he had been hiding . Also , another investigation was pending against him , which , according to LAW ORG , made detention mandatory . It therefore refused bail .

DATE . On DATE the applicant again applied for bail .

On DATE a prosecutor from ORG granted bail , but apparently his order was not found in the case file and was never put into effect .

On DATE the deputyhead of ORG reversed the bail order , holding that under LAW of the ORG a detainee charged with a serious intentional offence could only be released if there existed serious indications that he or she would not abscond , obstruct the investigation or commit an offence . In the case at hand this prerequisite was missing . On the contrary , the available information indicated that there was a serious risk of the applicant fleeing or committing an offence , because he had been hiding for DATE prior to his arrest . Moreover , another investigation was pending against him , which excluded release on bail .

The applicant 's lawyer appealed against this order to ORG . By an order of DATE ORG dismissed the appeal . It held that the applicant had been charged with CARDINAL serious intentional offences and that sufficient evidence pertaining to his guilt had been collected . Furthermore , in view of the nature of the alleged offences , the applicant 's release could seriously obstruct the investigation . There was also a danger that the applicant could flee .

On DATE the reporting judge at ORG held of her own motion that there were no grounds for granting bail at that point and decided to continue the applicant 's detention .

On DATE the applicant 's lawyer requested the applicant 's release . It was argued that the investigation had already been completed and that there was hence no risk of the applicant jeopardising it , and that there was no indication that if released the applicant , who was a student and wished to continue his education , would commit an offence . Moreover , the applicant had not tried to hide because he had never been properly summoned .

In a decision of CARDINAL DATE made in private the reporting judge refused bail . She held that the applicant had been charged with serious intentional offences , which meant that release was only possible if the exception of LAW of the ORG was applicable . However , prior to his arrest the applicant had been hiding for DATE , thus demonstrating his intention to jeopardise the investigation . On the other hand , another investigation was pending against him , which , under LAW ORG , excluded the possibility for release .

The applicant did not appeal against the decision .

On an unspecified date in DATE or DATE the applicant 's lawyer again requested the applicant 's release , arguing that he had a permanent address and was enrolled in university and that his girlfriend had given birth to his baby on DATE .

The reporting judge at ORG rejected the applicant 's request in a decision of DATE made in private . She held , inter alia , that the applicant 's lengthy hiding had hindered the investigation and that another investigation was pending against him for a robbery allegedly committed in ORG . It appears that the judge was referring to the investigation into the robbery of the applicant 's girlfriend 's shop , in which the applicant was not the suspect , but the victim ( see paragraph CARDINAL above ) .

On DATE the applicant 's lawyer appealed against the decision to ORG . She lodged the appeal with ORG , but on DATE the court rejected it as inadmissible , holding that , being his mother and having been questioned as a witness , the applicant 's lawyer could not also act as his defence counsel . Following this , the same day the applicant lodged an appeal in person . He argued that he had not been hiding : he had been taking his university examinations and staying in hotels ; the authorities had never made an effective effort to find him . He further explained the misunderstanding concerning the investigation in ORG . In addition , he complained that ORG had failed to address the question of the reliability of the evidence on which the charges had been based or to consider the factors militating against his continued detention .

The reporting judge examined the appeal , and having found no grounds to vary its decision , sent it together with the casefile to ORG .

On DATE ORG , sitting in private and in the presence of a prosecutor who argued that the appeal was ill - founded , dismissed the appeal . It noted that the applicant had been charged with CARDINAL serious intentional offences , that he had been hiding and that there had been no change in circumstances warranting his release . Despite the applicant 's explanation concerning the misunderstanding in respect of the ORG investigation , ORG repeated the reference to an investigation pending against him there .

On DATE , DATE of the trial , ORG granted bail , setting the amount at CARDINAL old NORP levs . The court held that prior to his arrest the applicant had been in PERSON taking his university examinations , that there was no indication that he would abscond , that his clean criminal record suggested that there was little danger of him committing an offence , and that there was no risk that he would obstruct the investigation . The applicant posted bail DATE and was released on DATE .

Article CARDINAL § CARDINAL ( CARDINAL ) of LAW ( “ the ORG ” ) , read in conjunction with LAW thereof , provides that robbery of chattels in large amounts is punishable by DATE imprisonment .

At the relevant time and until the reform of the ORG of DATE the accused could be detained by decision of an investigator or a prosecutor . In cases where the decision to detain had been taken by an investigator without the prior consent of a prosecutor , it had to be approved by a prosecutor within twentyfour TIME ( see PERSON v. GPE [ ORG ] , no . ORG , LAW , ECHR CARDINALII ) .

The role of investigators and prosecutors under NORP law has been summarised in paragraphs PERSON and CARDINAL of the ORG 's judgment in the case of ORG v. GPE ( cited above ) .

Article CARDINAL § § CARDINAL and CARDINAL of the ORG , as in force at the relevant time , provided as follows :

“ CARDINAL . Pretrial detention shall be ordered [ in cases where the charges concern ] a serious intentional offence .

NORP In the cases falling under paragraph CARDINAL [ pretrial detention ] may be dispensed with if there is no risk of the accused obstructing the course of justice , absconding or committing further offences . ”

Article CARDINAL § CARDINAL of the ORG defines a “ serious ” offence as one punishable by DATE imprisonment .

ORG practice at the relevant time ( it has now become at least partly obsolete as a result of amendments to the ORG in force since DATE ) was that LAW required that a person charged with a serious intentional offence be detained . An exception was only possible , in accordance with LAW , where it was clear beyond doubt that any risk of absconding or reoffending was objectively excluded as , for example , in the case of a detainee who was seriously ill , elderly , or already in custody on other grounds , such as serving a sentence ( опред. № CARDINAL от CARDINAL май DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL октомври DATE г. по ORG № CARDINAL г. на ВС NORP н.о. ; опред. № CARDINAL от CARDINAL ноември DATE г. по н.д. CARDINAL/CARDINAL г. ) .

Paragraph CARDINAL of Article CARDINAL , as in force until DATE , provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable offence were pending against the accused , or where he or she was a repeat offender .

On DATE ORG examined a request by ORG for an interpretative decision on LAW ORG . The court considered that LAW ORG was incompatible with the LAW , the LAW and LAW . It therefore decided to submit the matter to ORG which is competent to rule on the compatibility of legislation with the LAW and international treaties . Ultimately , ORG did not decide the point , as the impugned provision was repealed with effect from DATE .

Article CARDINAL § CARDINAL of the ORG , as in force until DATE , provided as follows :

“ The detained person shall be provided immediately with a possibility of filing an appeal with the competent court against the [ imposition of detention ] . The court shall rule within a time - limit of DATE from the filing of the appeal by means of a final decision . ”

ORG has held that , in deciding on appeals against pretrial detention , it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee , but only to examine the lawfulness of the detention order ( опред. № CARDINAL от CARDINAL май DATE г. по н.д. CARDINAL/CARDINAL г. на ВС I н.о. ) .

In a decision of CARDINAL DATE ORG found that the imposition of pretrial detention could be contested before a court only once ( опред. № CARDINAL по DATE г. на ВС I н.о. ) . Thus , until the amendment of the ORG in DATE , periodic judicial review of the lawfulness of detention was only possible when the criminal case was already pending before a court .

After the prosecution has filed an indictment against the accused with the court and the case is being prepared for trial , it is the reporting judge from the trial court who rules on all requests relating to the accused 's detention ( LAW . In DATE that provision was amended , providing that the reporting judge has to hold a public hearing in the presence of the detainee and his counsel . Before that it was silent on the issue . The reporting judge 's decision is subject to appeal to the higher court ( Article CARDINAL § CARDINAL ) . The appeal must be lodged within DATE ( Article CARDINAL ) with the trial court ( Article CARDINAL § CARDINAL in conjunction with Article CARDINAL § CARDINAL until DATE and LAW after that ) , which verifies whether there exist grounds for it to vary its decision ( LAW ) . If it finds no such grounds , it sends the appeal together with the casefile to the higher court . LAW provides that the higher court may examine the appeal in private or , if it considers it necessary , at a public hearing .

It follows from Article CARDINAL § CARDINAL of the ORG that the detainee 's requests for release during the trial are examined by the trial court .


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

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

On DATE the applicant was apprehended by the police on suspicion , inter alia , of aggravated drunken driving and driving without a driving licence .

The applicant obtained a driving licence on DATE .

Subsequently , on DATE , ORG ( länsstyrelsen ) of Västra Götaland informed the applicant that the ORG was considering whether to withdraw his driving licence until further notice in accordance with ORG ( körkortslagen CARDINAL ) on the ground of his suspected aggravated drunken driving ( grovt rattfylleri ) and unlawful driving ( olovlig körning ) on DATE . In that connection the ORG pointed out that , in the absence of a legally enforceable judgment or a summary punishment order or similar , the ORG could not take a definite decision on the matter .

On DATE the ORG ( tingsrätt ) convicted the applicant , notably under sections PERSON ) and CARDINAL of the DATE LAW ( trafikbrottslagen CARDINAL:CARDINAL ) of aggravated drunken driving , with an alcohol level of QUANTITY in his breath , and of driving without holding a driving licence .

The ORG based the conviction on the applicant ’s own account according to which , in so far as he could recall , he had , from TIME on DATE , consumed QUANTITY of strong beer , CARDINAL gin and tonic and CARDINAL strong liquor ; on a report analysing the results of the breathalyser test carried out on TIME CARDINAL DATE ; on the records of his statement to the police on TIME , and on witness evidence . ORG did not find credible the applicant ’s statement made during the trial hearing that , because of his state of drunkenness , he could not recall having driven the car in question .

As to sentencing , ORG observed that aggravated drunken driving was normally punishable by imprisonment . However , in view of the applicant ’s age , his personal circumstances and his agreeing to carry out community service , ORG found that a departure from normal practice was warranted , and imposed a suspended sentence together with CARDINAL ORG community service ( “ GPE dom med samhälltjänst femtio ( CARDINAL ) timmar ” ) . ORG added that should it instead have imposed a prison sentence , it would have sentenced the applicant to DATE imprisonment .

No appeal was made against the above judgment , which became legally enforceable .

On DATE ORG issued a further notification replacing the previous CARDINAL of CARDINAL DATE , informing the applicant that , in the light of the ORG judgment of DATE , which had acquired legal force , it intended to take a definite decision on the withdrawal of his driving licence ; the ORG gave the applicant until DATE to submit his comments .

On DATE the ORG withdrew the applicant ’s driving licence . It took note of his submissions that he had used his driving licence blamelessly since it had been issued to him on DATE , and that he needed the driving licence in order to transport his sailing boat over long distances in order to take part in top - level regattas . However , referring to his conviction for aggravated drunken and unlawful driving on DATE by a judgment ( of DATE ) which had become legally enforceable , ORG stressed that the applicant had violated a rule which was essential for road safety . This transgression could not be viewed as minor . Having regard to the offence committed by the applicant , ORG found that withdrawal of the applicant ’s licence for DATE would not be possible and ordered that his licence be withdrawn for DATE .

The applicant appealed against the ORG ’s decision before ORG . He reiterated that , since DATE , he had used his driving licence without committing any further offence and that , in the circumstances , the withdrawal constituted double jeopardy , in breach of LAW , LAW and LAW No . CARDINAL to the LAW .

On DATE ORG refused a request by the applicant to stay execution of the withdrawal order . By a judgment of CARDINAL DATE it dismissed his appeal , relying on the applicant ’s conviction of DATE and the relevant provisions in LAW . ORG considered a number of decisions from the Convention institutions’ caselaw and concluded that no clear precedent existed that could invalidate the NORP system on the withdrawal of driving licences . Bearing in mind the damaging consequences a finding of incompatibility would have for road safety , ORG found no reasons for setting aside the ORG ’s decision to withdraw the applicant ’s driving licence .

On DATE ORG , on an appeal by the applicant , upheld ORG judgment of CARDINAL DATE .

The applicant lodged an appeal against the above judgment , which ORG dismissed on DATE . Its judgment contained the following reasons :

“ [ The applicant ’s ] driving licence and driving licence permit have been withdrawn in accordance with LAW , sections CARDINAL , CARDINAL ( CARDINAL ) and CARDINAL of the Driving Licence Act ( DATE : CARDINAL ) on the grounds that he has been convicted of an aggravated offence of drunken driving and of unlawful driving by a legally binding judgment of the district court . The period of suspension has been set at DATE .

The main issue in this case is whether the withdrawal of [ the applicant ’s ] driving licence is in conflict with the principle established under LAW No . CARDINAL to LAW ( “ LAW ) , according to which no one shall be liable to be tried or punished twice for the same offence ( ne bis in idem ) . [ The applicant ’s ] opinion in the matter is that the fact that his driving licence was withdrawn after the decision to convict him of a traffic offence means that he has been punished twice for the same matter .

The European Convention - with the additions made , inter alia , in LAW DATE has been incorporated into NORP law by means of ORG .

The intended scope of LAW is unclear , as is the principle expressed therein . The wording of the article therefore provides no clear guidance as to whether the NORP system of driving licencerelated measures [ körkortsingripande ] might come into conflict with the LAW . Neither are there many legal precedents in this area .

As to the various requirements set out in the LAW , it stipulates , first of all , that no one may be ‘ PERSON more than once for an offence . The question here is whether the said withdrawal of the appellant ’s driving licence represents a punishment within the meaning of the Convention .

Under NORP law , driving licencerelated measures have traditionally been implemented for trafficsafety reasons , that is , they have been regarded as a precautionary measure on the part of society aimed at drivers who jeopardise traffic safety . Hence , measures of this kind have not been regarded as a form of punishment . It is , however , difficult to argue that a decision to withdraw a driving licence because the licence - holder has committed an offence is purely a traffic - safety measure . As a rule , the period of suspension is calculated on a standardised basis in proportion to the seriousness of the offence – in the same way as the penalty . Hence , it is not based on an individual assessment of the likelihood of a repeat of conduct that might jeopardise traffic safety . This means that the decision to withdraw a driving licence – like the punishment for the traffic offence – is aimed at least in part at persuading the holder to respect existing traffic regulations . Over time , the distinction between precautionary measures and punishment has become increasingly unclear in cases of this kind ( see for example ORG CARDINAL:CARDINAL p. CARDINAL , Government Bill CARDINAL/CARDINAL:CARDINAL , pp . CARDINAL et seq . , Government PERSON CARDINAL/CARDINAL:CARDINAL , pp . CARDINAL et seq . and ORG CARDINAL:CARDINAL , pp . CARDINAL et seq . ) .

Under LAW , section CARDINAL of the Driving Licence Act , a driving licence is withdrawn if any of CARDINAL criteria are met . CARDINAL of these criteria apply not to cases in which the licenceholder has committed an offence but to situations in which the holder is to be barred from holding a driving licence on grounds of unreliability as regards sobriety , illness , injury or similar circumstances . It should be made clear that the withdrawal of a driving licence in these cases is not to be considered as a punishment , and that cases of this kind are of no further interest in the present context . However , criteria DATE and CARDINAL are of interest , since they refer to cases where it is normally presupposed that the licence - holder has committed an offence . According to some of these criteria ( CARDINAL , CARDINAL and DATE ) – except in the case of petty violations – a driving licence may be withdrawn simply on the grounds that the holder has committed one of the offences set out therein . This applies in the case of gross negligence when driving and drunken driving ( criterion CARDINAL ) , in cases where the driver leaves the scene of an accident ( criterion CARDINAL ) and in the event of a violation of a rule that is essential from the point of view of traffic safety ( criterion CARDINAL ) . In other cases ( criteria CARDINAL and CARDINAL ) , certain other conditions must be met in addition to an offence having been committed . According to criterion CARDINAL , the driving licence is withdrawn if the licenceholder , through repeated offences , has shown a considerable lack of willingness or ability to comply with the regulations that apply in the interests of traffic or traffic safety for drivers of motor vehicles . According to criterion CARDINAL , the driving licence is withdrawn if it can be assumed DATE in the light of another offence which the holder has committed – that he or she will fail to respect traffic regulations or show consideration , judgement or responsibility on the road , or if he or she , on account of other personal circumstances , can not be considered suitable to be a driver of a vehicle requiring a driving licence .

Under criteria CARDINAL , CARDINAL and DATE , therefore , a driving licence is withdrawn , in principle , as the direct result of an offence . As regards criteria CARDINAL ( repeated offences ) and CARDINAL ( other offences ) , however , it is not the criminal act alone , but the act taken in combination with other factors – willingness and ability to comply with existing regulations , to show respect for traffic regulations , judgement and responsibility on the road , or suitability with regard to personal circumstances – which constitutes the grounds for revoking the licence . In the light of the PERSON v. GPE case ( judgment of DATE , Reports of Judgments and Decisions CARDINAL ) , for example , the withdrawal of a driving licence under criteria CARDINAL , CARDINAL or DATE can be said to be closer in character to a punishment than withdrawal under criteria CARDINAL or CARDINAL . At the same time , the basic rationale for withdrawal is that a driving licence should be withdrawn if the holder is deemed unsuitable to hold a licence . Hence , the fact that the legislator has singled out certain offences as constituting grounds for withdrawal in their own right , while further criteria must be fulfilled in the case of other offences , does not mean that the act of revoking a driving licence should be characterised in different ways in different cases . A withdrawal under criteria CARDINAL or CARDINAL does not refer to a single offence but to several different offences or other circumstances . However , the same can also apply to withdrawals under criteria CARDINAL , CARDINAL and CARDINAL . Of greater importance is the fact that the withdrawal is not an automatic consequence of the offence in question in any of these cases . Under LAW , section DATE and with the exception of certain drunkdriving offences – the licenceholder should be issued instead with a warning , if there are specific reasons to assume that a warning can be regarded as sufficient . Under LAW , LAW , subsection CARDINAL , if exceptional circumstances exist which warrant departing from the LAW , withdrawal can be avoided or the suspension period reduced if this can be done without jeopardising road safety . If the driving licence is not withdrawn , a warning may be issued instead .

The regulation therefore means that , when examining a case of driving licencerelated measures under criteria CARDINAL , CARDINAL and DATE , other circumstances besides the actual offence need to be taken into account . This applies with regard both to the question of whether any action should be taken and DATE where applicable – to the question of the scope of such action , e .g . the suspension period . This suggests that , in assessing whether the withdrawal of a driving licence as a consequence of an offence is to be regarded as a punishment or a safety measure , no distinction should be made between the different cases dealt with here ( criteria DATE and CARDINAL ) on the basis of the grounds for withdrawal .

Comparison of the NORP system of driving licence - related measures described above and the system that was assessed in the PERSON case reveals a clear difference , in that action under the NORP system is , in principle , not an automatic consequence of a conviction by the criminal court . However , the NORP system is also based largely on standard calculations , and driving licencerelated measures are consequently to a very great extent directly related to the degree of seriousness of the violation . The fact that a driving licencerelated measure , according to NORP legislation , is not an automatic consequence of a conviction by the criminal court can not therefore be said to distinguish the NORP system from the one assessed in the PERSON case in any decisive way . In assessing whether the driving licencerelated measure is to be regarded as a punishment , account should also be taken of the fact that , under the NORP system – as with the NORP system – the action taken may , to a certain degree , be considered to have a punitive and deterrent purpose .

Before determining whether the withdrawal of a driving licence is to be regarded as a punishment , the LOC v. GPE judgment ( [ ORG ] , no . CARDINAL , ORG CARDINALVII ) should also be examined . In the LOC case , the ORG found that the temporary withdrawal of the applicant ’s driving licence for DATE on account of a suspected offence of drunken driving did not concern a criminal charge . Temporary withdrawals can also be effected under NORP driving - licence legislation . In fact , the legislation stipulates that the withdrawal of a driving licence in connection with an offence is to take place as soon as possible after the offence , and on the basis of a provisional decision . According to LAW , section CARDINAL of the Driving LAW , a driving licence should be confiscated by the police or a prosecutor , inter alia , if there is good reason to suppose that the driving licence will be withdrawn under LAW , section CARDINAL ( CARDINAL ) or ( CARDINAL ) . According to LAW , section CARDINAL of the Driving Licence Act , a driving licence is to be withdrawn until further notice pending a final decision on withdrawal , if there is good reason to believe that the driving licence will ultimately be withdrawn on any of the grounds set forth in LAW , section CARDINAL ( CARDINAL ) to ( CARDINAL ) .

In the present case , ORG is not called upon to determine to what extent a provisional decision regarding a driving licencerelated measure represents a punishment or a safety measure . However , the fact that cases could arise under the NORP system which should be dealt with in the same way as the LOC case in the above - mentioned respect should not affect the assessment of how to characterise the final withdrawal of a driving licence .

In view of this , ORG finds that the withdrawal of a driving licence in the cases referred to under criteria DATE and CARDINAL should be regarded as a punishment within the meaning of LAW .

As is clear from the above , the fact that someone is punished again for an offence does not constitute sufficient grounds for the application of LAW . Other conditions must also be met ; for instance , the penalty must have been imposed ( or the case have been conducted ) in the context of ‘ criminal proceedings’ and the person in question must already have been ‘ finally acquitted or convicted in accordance with the law and penal procedure of that ORG .

First , as regards the term ‘ criminal proceedings’ ( NORP ‘ pénalement’ ) , it would seem most logical at first sight to consider as criminal proceedings any proceedings which could lead to a sanction constituting a punishment .

However , it is questionable whether such a far - reaching interpretation of LAW is intended . To begin with , it appears strange – if the above - mentioned interpretation were intended – to have included the term ‘ criminal proceedings’ at all in the provision ; its inclusion suggests that a limitation of its scope was intended ( see PERSON , PERSON ( ORG ) , no.CARDINAL/CARDINAL , p . CARDINAL ) . It should be recalled at this point that the court , in proceedings concerning driving licencerelated measures implemented for a traffic offence , makes no fresh examination of the offence . In other words , these are not criminal proceedings in the sense that the actual offence is examined . This suggests that the term ‘ criminal proceedings’ should be reserved for proceedings of the latter kind , that is , proceedings in which the offence is examined .

Of interest in this context is the Explanatory Report to LAW , paragraph CARDINAL of which states :

‘ LAW , since it only applies to trial and conviction of a person in criminal proceedings , does not prevent him from being made subject , for the same act , to action of a different character ( for example , disciplinary action in the case of an official ) as well as to criminal proceedings.’

It is therefore clear that disciplinary action , for instance against government officials , can fall outside the scope of LAW . However , the report does not provide any clear guidance on the question of how to distinguish between ‘ criminal proceedings’ and proceedings occasioned by an offence and which involve a sanction , but which nevertheless fall outside the scope of LAW . It should be stressed that the fact that disciplinary action is mentioned does not necessarily conflict with the view that legal proceedings are to be seen as criminal proceedings as soon as the sanction constitutes a punishment since , according to the caselaw of ORG , depending on the circumstances , disciplinary action can fall outside what is to be considered as a punishment for the purposes of Article CARDINAL . At the same time , it should be noted that the report does not present any obstacles to an interpretation to the effect that the NORP procedure concerning driving licence related measures falls outside the scope of LAW as an ‘ action of a different character’ .

As to the condition that the person in question must already have been ‘ finally acquitted or convicted in accordance with the law and penal procedure of that ORG the following should be emphasised . ORG ( paragraph CARDINAL compared with paragraph CARDINAL ) makes it clear that this means first and foremost that there must be a legally binding judgment on the matter . Looking at the wording of the LAW , however , it would seem logical to conclude that – in cases where the legislation in a country prescribes that an offence gives rise to sanctions under CARDINAL separate procedures – the person in question is finally convicted in accordance with national legislation only when both procedures have been completed .

Hence , in this respect too , the provisions leave room for different interpretations ( see also ORG judgment of DATE in case no . B CARDINAL - CARDINAL ) .

As regards ORG position on these issues , the abovementioned PERSON case , inter alia , is of some interest . First , it should be pointed out that the action brought by PERSON was based on the fact that the system of automatic deduction of points DATE which did not allow him as a licence - holder to appeal to a court of law – had deprived him of his right of access to a court of law under LAW . As mentioned , the ORG found that the case did concern a criminal charge – and also a punishment DATE and that LAW was applicable . It is of particular interest in this context that the ORG found that the conditions laid down by LAW had been met by the judicial review which preceded the conviction by the court and that the ORG could not be considered to require a further examination by a court regarding the deduction of points . There was no statement to the effect that the NORP system – with its partly separate systems for ordinary penalties and driving licencerelated measures – might be incompatible with LAW . Also of interest is ORG decision on admissibility of CARDINAL DATE in GPE v. GPE ( application no . CARDINAL ) . The applicant ( R .T. ) had , in connection with a drunkdriving offence , first had his driving licence withdrawn by an administrative authority and then been sentenced to prison and a fine by another authority . After PERSON lodged an appeal against the decision to withdraw his licence , the decision was confirmed by an administrative court . The ORG found that there had been no repetition of criminal proceedings in breach of LAW , and stressed , inter alia , that the various sanctions DATE imprisonment , a fine and withdrawal of the applicant ’s driving licence – were envisaged by the national legislation .

The withdrawal of a driving licence for a criminal offence should be regarded as a punishment within the meaning of LAW [ of LAW ] . Neither the wording of the provision nor the Explanatory Report gives any clear answer to the question whether NORP proceedings relating to the withdrawal of a driving licence are covered by the expression ‘ criminal PERSON . Nor does it give a clear indication as to whether the holder of the driving licence should be regarded as having already been ‘ finally ... convicted’ of the traffic offence by virtue of a legally enforceable judgment by an ordinary court . In ORG view , the wording of both expressions suggests that both questions ought to be answered in the negative .

In interpreting this LAW , one might also have regard to its purpose . It could be argued that an important safeguard for a person who is finally acquitted or convicted is that he or she should feel secure , in the sense that he or she should not be charged or punished again for the same offence . The NORP system implies that a person who is charged with a traffic offence is aware DATE or ought to be aware DATE from the outset that an enforceable judgment convicting him or her would normally be followed by measures with regard to his or her driving licence . The fact that the measure is taken in separate proceedings should not mean that considerations of security and legal safeguards are set aside . In other words , the NORP system does not appear to conflict with the purpose of LAW .

A strong argument for considering that the NORP system of withdrawal of a person ’s driving licence for a traffic offence does not conflict with LAW may be found in the ORG ’s judgment in PERSON v. GPE and the above - mentioned admissibility decision in GPE v. GPE . ORG reasoning and conclusion in these cases – notwithstanding the fact that PERSON did not directly concern the application of LAW can only be interpreted to mean that the committing of a criminal offence can lead to different sanctions imposed by separate authorities and courts , if so provided by statute .

Against this background , ORG concludes that Article CARDINAL § CARDINAL does not constitute an obstacle to applying the provisions of the Driving Licence Act .

Like the lower courts , ORG finds that LAW , LAW on which [ the applicant ] also relies – is not applicable to drivinglicence cases . ”