The applicant companies are NORP commercial companies whose registered offices are in GPE ( GPE ) . They are represented before the ORG by PERSON of ORG .

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

The applicant companies operate gaming concerns equipped , in particular , with fruit machines . They are consequently required to pay duty DATE known as “ gaming duty ” – in the form of an annual lump sum on each fruit machine . The amount is reviewed DATE in GPE ’s DATE budget .

In the present case , the amount of duty payable on each fruit machine for DATE was set at MONEY ( ESP ) by LAW of DATE . However , an additional increase for DATE , raising the DATE duty for each fruit machine to ESP CARDINAL , was imposed by section CARDINAL(CARDINAL)(CARDINAL ) of PERSON no . CARDINAL of DATE on the adoption of urgent budgetary measures .

The first applicant company paid the ORG ESP CARDINAL in duty for DATE , and the second ESP CARDINAL .

The applicant companies , who did not accept the additional increase and had unsuccessfully attempted to obtain its reimbursement by the ORG , brought applications for judicial review in ORG of ORG maintaining , inter alia , that there had been a violation of the principle that increased penalties should not be applied with retrospective effect , a failure to ensure legal certainty and a breach of the principle that rates of duty should be consistent with those imposed on other gaming activities . To that end , they invited the court to refer the issue whether section CARDINAL(CARDINAL)(CARDINAL ) of PERSON no . CARDINAL/CARDINAL was compatible with Articles CARDINAL § CARDINAL , CARDINAL and DATE of the LAW to ORG before deciding their application for judicial review .

In a judgment of DATE ORG refused to refer the constitutionality issue to ORG and dismissed the application on the merits . As regards its refusal to make a referral , it cited a decision of DATE in which ORG had held that a statute of DATE imposing an additional increase in duty on fruit machines was not unconstitutional ; it observed , too , that ORG had decided that the LAW did not preclude retrospective effect being given to tax legislation .

The applicant company lodged an amparo appeal against that judgment with ORG . It contended that the refusal of ORG to make a constitutionality referral regarding section CARDINAL(CARDINAL)(CARDINAL ) of PERSON no . CARDINAL/CARDINAL infringed its right to the protection of the courts and to a fair hearing ( LAW ) . It complained , too , that it had been the victim of discriminatory treatment when compared to other firms engaged in the gaming sector ( LAW ) . It also argued that another NORP court , ORG , had decided to refer to ORG the issue of the constitutionality of section CARDINAL(CARDINAL)(CARDINAL ) of PERSON no . CARDINAL/CARDINAL in the context of an application for judicial review lodged by another gaming company . In the light of that referral , ORG decided to adjourn consideration of the applicant company ’s appeal until it had decided the issue that had been referred to it by ORG . In the latter proceedings ORG declared section CARDINAL(CARDINAL)(CARDINAL ) of PERSON no . CARDINAL/CARDINAL unconstitutional and therefore null and void as its effect was to cause an unforeseeable and insufficiently justified increase in tax liability that amounted to a violation of the principle of legal certainty .

Notwithstanding that decision , ORG , sitting as a full court , decided on DATE , by CARDINAL votes to CARDINAL , to dismiss the applicant company ’s amparo appeal .

The complaint regarding the failure to observe the non - discrimination principle was rejected by ORG , inter alia , on the ground that a finding that section CARDINAL ) of PERSON no . CARDINAL/CARDINAL was unconstitutional could not be founded on the basis of the principle of equality stated in LAW but on objectively established factors showing inequality contrary to LAW . While any such inequality could be remedied by other constitutional procedures – such as an appeal or a referral of a constitutionality issue – it could not be remedied through an amparo appeal .

As to the complaint under LAW , ORG reiterated that under its settled case - law it was solely for trial courts to decide whether to make a constitutionality referral and their decision was final . Consequently , a refusal to make a referral did not in principle entail a violation of any fundamental right , even if other courts had decided to make a referral regarding the constitutionality of the same provision of PERSON no . CARDINAL . In the instant case , ORG observed that the applicant company had been in a position to put to ORG of Justice all the arguments it considered appropriate in support of its case that the relevant provisions of PERSON no . CARDINAL were unconstitutional and that that court had carried out a reasoned analysis of the merits of those arguments before rejecting them . As regards the argument that ORG itself had in the meantime declared section CARDINAL(CARDINAL)(CARDINAL ) of PERSON no . CARDINAL/CARDINAL unconstitutional , it held that the fact that a specific provision had been declared unconstitutional could not be used by itself in amparo appeals since the scope of such appeals was restricted by the LAW to certain fundamental rights and freedoms . It added that where a decision on an amparo appeal came after another decision , in proceedings regarding constitutionality , ORG was not always able to refer to the earlier decision in deciding the amparo appeal even where both sets of proceedings concerned the same statutory provision ; that applied especially where , as in the instant case , the decision on the constitutionality issue was based on LAW ( principles of legal certainty and of the rule of law ) , since that provision was not included in the rights and freedoms that were covered by amparo appeals . ORG added that , as no reduction of a sentence or penalty was at stake , a subsequent declaration that a statutory provision was unconstitutional could not have any effect on proceedings that had ended in a final judgment . It concluded by saying that ORG had applied the impuned provision of PERSON no . CARDINAL after finding that it was consistent with the LAW and , accordingly , that there was no point in making a constitutionality referral to ORG .

The applicant company submitted that , unlike other firms in the gaming sector , it had been prevented by that decision from claiming reimbursement of the increases in duty it had paid on its fruit machines pursuant to section CARDINAL(CARDINAL)(CARDINAL ) of Law no . CARDINAL/CARDINAL .

In a judgment of DATE ORG refused to refer the constitutionality issue to ORG and dismissed the second applicant company ’s application on the same grounds as those set out in its judgment of CARDINAL DATE in the first applicant company ’s case .

The second applicant company lodged an amparo appeal against that judgment with ORG . It contended that the refusal of ORG to make a referral regarding the constitutionality of section CARDINAL(CARDINAL)(CARDINAL ) of PERSON no . CARDINAL/CARDINAL had infringed its rights to the protection of the courts and to a fair hearing ( LAW ) . It complained , too , that it had been the victim of discriminatory treatment when compared to firms engaged in other areas of the gaming sector ( LAW ) .

In a decision ( auto ) of DATE ORG decided to dismiss the second applicant company ’s appeal and in so doing referred to the grounds set out in its decision of DATE on the first applicant company ’s appeal .

The second applicant company submitted that , unlike other firms in the gaming sector , it had been prevented by that decision from claiming reimbursement of the increases in duty it had paid on its fruit machines pursuant to section CARDINAL(CARDINAL)(CARDINAL ) of PERSON no . CARDINAL/CARDINAL .

The relevant Articles of the DATE LAW provide :

“ The LAW guarantees the rule of law , the application of norms according to rank , their publication , the non - retrospective nature of provisions laying down increased penalties or restricting individual rights , legal certainty , the accountability of public authorities and the prohibition of any arbitrary act on their part . ”

“ NORP nationals shall be equal before the law and may not be discriminated against in any way on account of birth , race , sex , religion , opinion or any other condition or personal or social circumstance . ”

“ CARDINAL . Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests ; in no circumstances may there be any denial of defence rights .

Likewise , everyone has the right to [ be heard by ] an ordinary judge determined beforehand by law ; everyone has the right to defend himself and to be assisted by a lawyer , to be informed of the charge against him , to have a trial in public without unreasonable delay and attended by all the safeguards , to adduce the evidence relevant to his defence , not to incriminate himself or to admit guilt and to be presumed innocent .

“ Everyone shall contribute towards the financing of public expenditure according to their financial means through a fair tax system based on the principles of equality and graduation and which , under no circumstances , shall incorporate a power to confiscate . ”

The jurisdiction of ORG is defined as follows :

“ The Constitutional Court shall have jurisdiction for the whole of NORP territory and is competent to hear :

( a ) NORP appeals against the alleged unconstitutionality of laws and regulations having the force of law ... ;

( b ) individual appeals for protection ( recurso de amparo ) against infringements of the rights and liberties referred to in LAW , in the circumstances and manner laid down by law ;

( c ) disputes between the ORG and an autonomous community or between different autonomous communities over the scope of their powers .

PERSON appeals lie only in respect of the rights guaranteed under ORG DATE ; the principles of the rule of law and legal certainty guaranteed by LAW are therefore beyond the scope of such appeals .

“ If in the course of proceedings a judicial body considers that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the LAW , it shall refer the issue to ORG in the circumstances and manner and with the effects – which shall under no circumstances include suspensive effect – to be laid down by law . ”

“ CARDINAL . Judgments of the Constitutional Court shall be published in ORG together with any dissenting opinions . They shall be final with effect from DATE after their publication and no appeal shall lie against them . Judgments declaring a law or a rule having the force of law unconstitutional and all judgments that are not merely in personam shall be binding on everyone .

Unless stated otherwise in the judgment , parts of the law not declared unconstitutional shall remain in force . ”

LAW of the Institutional Law on ORG is entitled “ Questions of constitutionality referred by judges and courts ” and is worded as follows :

“ CARDINAL . When a judge or court , of his or its own motion or at the request of a party , considers that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the LAW , he or it shall refer the matter to ORG , in accordance with the provisions of the present PERSON .

The judge or court concerned shall make the referral only when the case is ready for trial and within the time allowed for giving judgment . It shall identify the laws or provisions having the status of law in issue and the articles of the LAW that are considered to have been violated and shall indicate and explain why the outcome of the proceedings depends on the validity of the provisions concerned . Before taking a final decision on whether to refer an issue to ORG , the judge or court shall first hear any representations the parties and a representative of ORG may wish to make regarding the relevance of the issue within a DATE non - extendable time - limit that shall apply to each of them . The judge shall give his decision within DATE thereafter , no further action being required . No appeal shall lie against that decision . However , the constitutionality issue may be raised again in subsequent proceedings until such time as the judgment shall have become final . ”

“ A judge or court shall refer constitutionality issues to ORG by sending a certified copy of the main case file and any representations made under DATE . ”

“ CARDINAL . On receipt of the case file the Constitutional Court shall follow the procedure laid down in paragraph CARDINAL of this Article . However , it may in a reasoned decision declare the referral inadmissible after hearing representations by the Attorney General alone if the procedural requirements have not been complied with or the referral is manifestly ill - founded .

The Constitutional Court shall inform ORG and the ORG ( through their respective speakers ) , the Attorney General and the Government ( through ORG ) of the referral . If it concerns a law or a provision having the status of law adopted by ORG , the legislative and executive authorities shall also be informed . Each of these bodies shall be entitled to appear before ORG and to make representations on the constitutionality issue within a non - extendable DATE time - limit that shall apply to each of them . Once that period has expired , the court shall give judgment within DATE , unless it gives a reasoned decision explaining why it considers a longer period – not exceeding DATE – to be necessary . ”


The applicant , Mr PERSON , is a NORP citizen , who was born in DATE and lives in GPE . The respondent Government are represented by their Agent Ms Lidija PERSON .

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

In DATE the applicant obtained his old - age pension which was assessed according to his average wage and DATE of employment . His pension , as all other pensions in GPE , was regularly adjusted in line with the increase in wages and the cost of living , pursuant to the DATE LAW ( Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja - ORG no . CARDINAL/CARDINAL ) .

A number of Government Decrees ( PERSON ) adopted DATE restricted the budget allocation for payment of pensions in GPE . As a result of these restrictions , ever since DATE the pension funds have not been brought into line with the increase in wages but only with the increase in the cost of living , contrary to the DATE LAW .

On DATE the Law on Indexing Pensions and Other Payments from Pension and Invalidity Insurance Funds and on Management of the Pension and Invalidity Insurance Funds ( hereinafter the “ LAW ” - Zakon o usklađivanju mirovina i GPE novčanih primanja iz mirovinskog i invalidskog osiguranja , te upravljanju fondovima mirovinskog i invalidskog osiguranja - ORG no . CARDINAL ) was passed annulling the provisions of the DATE LAW which regulated the adjustment of pensions . The new law did not bring the pensions into line with the increase in wages and cost of living .

On DATE ORG ( Ustavni sud PERSON ) declared certain provisions of the DATE LAW incompatible with the LAW . The decision was published in ORG no . CARDINAL/CARDINAL .

On DATE the applicant applied to ORG ( Republički fond mirovinskog i invalidskog osiguranja radnika ORG GPE služba GPE ) requesting that his pension be adjusted pursuant to ORG decision . He received no reply .

On DATE the applicant lodged a request with the appellate commission of ORG . He received no reply .

On DATE the applicant filed an action with ORG ( Upravni sud PERSON ) pursuant to the provisions of LAW , asking that the court order the lower administrative bodies to reply to his request .

ORG twice sought observations from the lower administrative bodies , but received neither a reply nor the case - file in question .

Meanwhile , on DATE ORG enacted the LAW on the Increase of Pension Instalments with a view to complying with ORG decision of CARDINAL DATE .

According to the Government , after the enactment of the above LAW the applicant ’s pension has been increased by PERCENT .

On DATE ORG ruled in the applicant ’s favour and ordered ORG Central Office ( PERSON mirovinsko osiguranje , NORP služba ) to decide on the applicant ’s appeal within DATE .

On DATE ORG ordered ORG ( PERSON za mirovinsko osiguranje , Područna služba GPE ) to decide on the applicant ’s request within DATE .

On DATE ORG of ORG rejected the applicant ’s request .

On DATE the applicant appealed against that decision .

It appears that the proceedings are presently pending before ORG as the appellate body .

On DATE the applicant filed a civil action with ORG ( PERSON ) seeking payment of his full pension adjusted in accordance with ORG decision .

On DATE the court declined jurisdiction in the matter and dismissed the action . It found that the relevant administrative bodies had jurisdiction .

The proceedings are presently pending before ORG ( Županijski sud u GPE ) as the appellate court .

The relevant parts of CARDINAL of LAW on LAW ( entered into force on DATE , published in ORG no . CARDINAL of CARDINAL May CARDINAL - hereinafter “ LAW on the LAW ” - Ustavni zakon o Ustavnom sudu PERSON ) read as follows :

( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment .

The relevant provisions of LAW ( Zakon o općem upravnom postupku - Official Gazette CARDINAL/CARDINAL ) provide as follows :

Section CARDINAL ( CARDINAL ) provides that in simple matters , where there is no need to undertake separate examination proceedings , an administrative body is obliged to issue a decision within DATE after a party lodged a request . In all other , more complex , cases , an administrative body is obliged to issue a decision within DATE after the request was lodged .

Section CARDINAL ( CARDINAL ) enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal , as if his request had been denied .

The relevant provisions of LAW ( Zakon o upravnim sporovima - ORG CARDINAL/CARDINAL ) provide as follows :

Section CARDINAL enables a party who lodged a request with an administrative body to institute administrative proceedings before ORG ( administrative dispute ) in the following situations :

NORP If the appellate body does not issue a decision upon the applicant ’s appeal within DATE the applicant may repeat his request , and if the appellate body declines to issue a decision within DATE , the applicant may lodge a claim with ORG .

When a first instance administrative body does not issue a decision and there is no right to appeal , the applicant may directly lodge a request with ORG .

NORP If a first instance administrative body does not issue a decision upon the applicant ’s request within DATE in matters where a right to appeal exists , the applicant may lodge his request with the appellate administrative body . Against the decision of that body the applicant may institute administrative proceedings , and if that body has not issued a decision there is a right to institute administrative proceedings under the conditions set out in paragraph CARDINAL .

The relevant parts of the LAW on the Increase of Pension Instalments ( Zakon o povećanju mirovina , Official Gazette no . CARDINAL/CARDINAL ) provide that pension instalments are to be increased , in order to comply with ORG decision of CARDINAL DATE , according to the financial possibilities of the ORG . It regulates the indexes to be applied to the increase of pensions in DATE .


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

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

On DATE she instituted proceedings in the GPE ORG against a local health clinic in GPE for payment of an adjustment for inflation and of statutory interest in respect of arrears of her widow ’s pension which had been paid DATE .

At the first hearing , on DATE , the court noted that the defendant had failed to appear and the judge preparing the case for trial directed that the final submissions be made on DATE . That hearing was adjourned of the court ’s own motion to CARDINAL DATE because the judge had been transferred . The trial before the relevant division was held on DATE . In a judgment of CARDINAL DATE , the text of which was deposited with the registry on DATE , the court declined jurisdiction on account of the subject - matter of the case and indicated that the GPE magistrate ( pretore ) , sitting as an employment judge , had jurisdiction to hear it .

On DATE the applicant resumed the proceedings before the GPE magistrate . At the first hearing , on DATE , the court noted that the defendant had failed to appear and the magistrate appointed an expert , who took the oath on DATE . On DATE the magistrate withdrew to consider the case . In a judgment of the same date , the text of which was deposited with the registry on DATE , the magistrate allowed the applicant ’s claim in part .

On DATE the applicant appealed to ORG . On DATE the first hearing was set down for DATE . It was subsequently brought forward , at the applicant ’s request , to CARDINAL DATE . It was then adjourned to CARDINAL DATE because the judge preparing the case for trial was unable to attend , and then to DATE because the registry had not sent the file relating to the first - instance proceedings . On DATE the court appointed an expert and directed that he take the oath on DATE . That hearing was adjourned to CARDINAL DATE because it had not been possible to summon the expert . On DATE the court appointed a new expert because the first one had moved house and it had not been possible to summon him . The expert took the oath on DATE and the case was adjourned to DATE . On that date the court listed the deliberations in the case for DATE . In an order of CARDINAL DATE the court re - opened the investigation and ordered the expert to appear at a hearing on DATE in order to clarify certain points in his report .

The court deliberated on DATE and in a judgment of the same date , the text of which was deposited with the registry on CARDINAL DATE , allowed the applicant ’s appeal in part .


The applicant , “ ORG - STRO ” ORG , is a company incorporated in GPE .

On DATE the applicant company ( the applicant ) bought goods , which were valued at CARDINAL NORP lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) , from a NORP company .

On DATE the applicant ’s merchandise crossed the NORP border . On DATE the applicant registered a customs declaration at ORG .

On DATE ORG fined the applicant for failure to declare the imported goods within the legal time limit of TIME from the moment of crossing the border . The fine was imposed in accordance with the provisions of LAW ( see “ LAW ” below ) and represented PERCENT from the total value of the goods and was set at an amount of ORG ( the equivalent of ORG CARDINAL,CARDINAL.CARDINAL at the time ) .

The applicant ’s representative was also fined for failure to present relevant documents for the imported goods within the same legal time limit . The fine was imposed in accordance with the provisions of LAW and was set at an amount of MDL CARDINAL ( the equivalent of EUR CARDINAL at the time ) .

On DATE the applicant brought an action against ORG , seeking the annulment of the decision in respect of the fine imposed on it .

On DATE the ORG ruled in favour of the applicant and annulled ORG decision in respect of the applicant . The latter lodged an appeal against the judgment .

On DATE ORG upheld the appeal lodged by ORG and dismissed the applicant ’s action . During the proceedings , the applicant ’s representative admitted its failure to observe the legal time limit for lodging the customs declaration and gave reasons for the failure , but ORG considered those reasons as irrelevant .

The relevant provisions of LAW DATE read as follows :

“ Article CARDINAL . ORG declaration filing deadlines

ORG declaration shall be filed within TIME following the crossing of the customs frontier . ( ... )

Article CARDINAL . Types of Customs Regulations infringements which entail material liability

The following LAW infringements shall entail material liability :

CARDINAL ) a failure to declare goods crossing the customs frontier according to the established procedure , or a false declaration , in the absence of elements constituting smuggling or other crimes ; ( ... )

Article CARDINAL . Penalties for ORG offences which entail material liability

Legal entities and entities engaged in business activities without being incorporated as legal entities when committing offences specified in :

a ) Article CARDINAL(CARDINAL)-(CARDINAL ) , shall be subject to a fine in an amount equivalent to PERCENT of the value of goods which constitute the object of the offence with or without licence revocation ; ”


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

A.

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

The first applicant , who had been detained several times DATE , became a member of the Siirt Branch of ORG in DATE . Following his election as chairman of the Siirt Branch in DATE , the applicant received several threats from ORG as a result of his activities .

On DATE the first applicant was taken into police custody by policemen from the Anti - Terrorism Branch of ORG , in relation with an investigation conducted by ORG . Subsequently , he was placed in detention on remand and criminal proceedings were initiated against him . On DATE the applicant was released on bail and on DATE he was acquitted of the charges against him .

On DATE the security officers from the ORG came to the first applicant ’s house and conducted a search of his house . At the time of the events , the applicant ’s wife , his sister , and his CARDINAL children were present at home . During the search , the police officers found a black plastic bag , which contained a defensive - type hand grenade , a full PERSON cartridge and some PERSON bullets . The applicant states that this bag was brought and left by the police officers themselves . Following the search , the police officers took the applicant , his sister PERSON and his daughter PERSON into custody . TIME , the applicant ’s wife and his second daughter were also taken into police custody and the applicant ’s other children aged DATE were left on their own at home without the supervision of an adult . Following their interrogation , on DATE the first applicant and his family members who were also detained with him , were taken to ORG to be examined by a medical expert . According to the report of ORG medical expert , dated DATE , there were no signs of injury on their bodies . Thereafter , on DATE , the applicant and his relatives were taken to the Siirt ORG in Criminal Matters . The court ordered the applicant to be placed in detention on remand , whereas it released the rest of the detainees .

ORG declared lack of jurisdiction and transferred the case - file to ORG . ORG initiated criminal proceedings against the first applicant and charged him with aiding and abetting the ORG under LAW of LAW and for illegal possession of explosives and firearms under LAW . On DATE the court acquitted the applicant of aiding and abetting the ORG . It further decided to send the case to ORG for a further examination of the allegation about illegal possession of explosives and firearms . On DATE the ORG found the applicant guilty of illegal possession of explosives and firearms . Consequently it sentenced the applicant to CARDINAL days’ imprisonment and a fine . It further suspended the execution of these sentences .

B. Relevant domestic law

Criminal law and procedure :

LAW makes it a criminal offence to subject someone to torture or ill - treatment ( Article CARDINAL in respect of torture and Article CARDINAL in respect of ill - treatment , inflicted by civil servants ) .

In general , in respect of criminal offences , complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the local public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a DATE prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision not to institute criminal proceedings .

Civil action for damages :

Section CARDINAL of Law No . CARDINAL on the payment of compensation to persons arrested or detained provides :

" Compensation shall be paid by the ORG in respect of all damage sustained by persons

( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute law ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being released or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ;

or

( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only . "


No violation of Art. 5-1-a;No violation of Art. 3

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant was prosecuted for the abduction and murder of PERSON , an DATE boy , on CARDINAL and CARDINAL DATE .

On DATE , while in police custody , the applicant signed a confession which he stood by for DATE of the investigation . DATE he was placed in pre - trial detention . The investigating judge questioned him on several occasions about the reasons for his conduct , which was inconsistent with his confession , but the applicant refused to offer an explanation .

On DATE a panel of experts in neuropsychiatry submitted a report . The experts submitted that the applicant had not been suffering from mental illness at the time of the events and contended that the physiological and psychological abnormalities observed , coupled with the applicant ’s alleged memory loss at the time of the killing , “ [ made ] it impossible to rule out the presence of an epileptic symptom with a twilight state and dimming of consciousness ” . They concluded that the applicant was “ dangerous ” and “ liable to a criminal penalty ” and that “ the organic disorders observed would be amenable to palliative treatment alone and PERSON ] that his social rehabilitation [ could ] be envisaged only with the utmost caution ” .

A second report was submitted on DATE . It concluded that the applicant was “ not mentally ill and should not be admitted to a psychiatric hospital . He is fit to stand trial . He must answer for his actions in court . He is a danger to public safety . ”

On DATE the applicant retracted his confession but refused to expand on his muddled and limited explanations . He has protested his innocence ever since .

In a judgment of CARDINAL DATE the Seine - et - Oise Assize Court found the applicant guilty of abduction and subsequent murder , with mitigating circumstances . ORG held that the offence should not be classified as premeditated murder ( assassinat ) . Although the prosecution had not sought a specific penalty , the applicant was sentenced to life imprisonment , but no minimum term was set ( see paragraph CARDINAL below ) . After the verdict had been read out by the President of ORG , the applicant protested that there had been a miscarriage of justice and gave the name of a person who , according to him , was guilty . An appeal on points of law by the civil party was dismissed on DATE .

The applicant ’s wife died in unexplained circumstances in DATE , after she had written to tell him that she knew he was innocent and that she had received death threats from CARDINAL of the CARDINAL real culprits .

On DATE the applicant , through his lawyer , who had nevertheless entered a guilty plea on his behalf , lodged an initial application for a retrial , which was apparently not examined .

On DATE the applicant ’s lawyer lodged a second application for a retrial with the Minister of Justice . The application gave rise to an investigation , the findings of which were due to be disclosed to the lawyer . However , the lawyer died before the report was submitted and the findings of the investigation were never forwarded to the applicant . DATE , the applicant was notified orally that the application had been dismissed .

On DATE , on the expiry of a “ probationary period ” of DATE ( see paragraph CARDINAL below ) , the applicant became eligible for release .

The applicant applied for release on licence on several occasions . In DATE he received the support of the President of the ORG des droits de l’Homme ( ORG ) . The civil party subsequently issued death threats against the applicant in the event of his release from prison .

His applications for release on licence were transmitted in DATE , DATE , DATE , DATE , DATE , DATE , DATE to the Minister of ORG , who at the time was empowered to deal with such matters , and were refused , in many cases for his own safety despite “ evidence supporting them ” , as PERSON , the Minister of ORG from DATE , explained in a press article published on DATE .

The applicant also made several applications for a presidential pardon . Some of them did not receive a reply . The last one , submitted in DATE , was refused after an expert medical assessment had concluded that the applicant ’s state of health was compatible with detention .

On DATE a lawyer belonging to ORG applied for the applicant ’s release on licence . The sentence enforcement board gave a positive opinion , but consideration of the application was adjourned pending the submission of a fresh expert report .

On DATE the experts submitted their report , which read :

“ ... Previous expert reports

Among the documents consulted , we have considered in particular the expert reports by the following psychiatrists :

PERSON , PERSON and PERSON , of DATE ;

PERSON , PERSON and PERSON , of DATE ;

PERSON and PERSON , of DATE ;

PERSON , of DATE ;

PERSON , of CARDINAL DATE ...

Observations

We have studied the committal order by ORG and a number of expert reports . In their report dated DATE PERSON and PERSON observed in PERSON a mental distortion of reality bordering on the process of paranoia . They noted his pride , his taste for publicity and his need for a sense of self - worth . They referred to the substantial administrative file on PERSON , whose time in custodial establishments had been highly DATE . The CARDINAL experts emphasised that PERSON was very keen to publish his version of events . This , they concluded , was likely to cause a quite considerable scandal . His release risked causing a significant disturbance to public order , and they believed that it could give rise to fears of a publicity stunt .

PERSON , who had been unable to examine PERSON as the latter had refused , expressed the view in his report of CARDINAL DATE based on the file that the prospect of release was risky .

On CARDINAL DATE Dr PERSON noted in his report that PERSON intellectual faculties had remained intact . He observed that , despite a fairly warm appearance , there were still paranoid character traits centred on distrust , a suspicious and quibbling temperament , a general impression of persecution , difficulty in being self - critical , an underlying inflexibility and an inflated opinion of himself , accompanied by a latent sense of manipulation and provocation . Dr PERSON concluded from this that PERSON had scarcely changed since the assessment by PERSON and Dr Roumajon , finding him to be just as combative , prone to look for hidden meaning , and seemingly determined to assert in future , by any possible means , what he considered to be his justification and the expression of the truth .

In PERSON opinion , the question of release was very difficult to assess , in view of the disturbance to public order and the media attention that were likely to ensue .

During our examinations , PERSON developed good relations with us . The general impression that emerged seems more balanced than that observed by the previous experts .

CARDINAL expression struck us in particular : ‘ I have continued to develop a structure while in ORG That does indeed seem to be the case , but it is impossible to assess whether , as things stand , PERSON would be able to maintain this relative stabilisation on being released , if such a decision were taken .

PERSON appeared to us to be well informed about the current situation . He demonstrated great skill in pleading his own case , without , moreover , displaying excessive passion or exerting pressure on his interlocutors , so much so that questions may be raised as to the intensity of his current desire to be released . In any event , after DATE of imprisonment , such ambivalence is not surprising . The idea of coming out of a system that is organised , restrictive and frustrating yet reassuring by its very monotony , with particular features such as a certain degree of respect on the part of most of the supervising staff , will undoubtedly cause him to wonder , quite naturally , about life as a free man , a life to which he is no longer accustomed : management of time and space , access to treatment , professional responsibility , social skills ...

The version of events he submitted to the CARDINAL experts is consistent with what he has written and with the version he gave to the previous succession of experts . It is not for us to pass judgment on its credibility . Is it a mythomaniac fabrication ? What portion of truth is there in his current version of events ? Is it quite simply a defence mechanism ? Is it basically a defensive structure verging on the delusional ? All these aspects , indeed , may well be interlinked .

In any event , a certain progression can be seen from these various documents . In simplified form , it may be broken down into CARDINAL phases :

At first , PERSON appeared to have a highly disordered personality , being prone to mythomaniac fabrication and a somewhat naive boastfulness .

ORG came the phase of multiple complaints and a defensive organisation bordering on paranoia .

Currently there seems to be evidence of a relative softening of his character armour , although it is impossible to judge the impact of ‘ protection afforded by prison’ and his reaction on experiencing the ‘ void of release’ .

Our overall impression is therefore more qualified .

To sum up , [ the applicant ] was imprisoned at DATE . At the time he appeared to have a disordered personality ... DATE , most of his life has been spent in prison . ... Admittedly , a few paranoid personality traits may still be observed , but they are relatively well suppressed . Such traits essentially seem to be a form of character defence against accusations , a psychological survival response in order to ... ‘ avoid losing a grip on ORG . He does not show any signs of systematic misjudgment , general over - simplification , deep suspicion , or a sense of current persecution ... at least , as soon as discussion moves away from the case in question . ...

As further evidence against the presence of genuine paranoia , it is noticeable that he has maintained a certain sense of humour , a responsiveness to his surroundings and a degree of nuance . ”

The report concluded :

“ This assessment therefore focuses entirely on aspects of his personality from a strictly psychiatric and forensic standpoint . And from that standpoint , there do not currently seem to be any formal obstacles to his release . ”

The report also stated that the previous experts had already found that there did not appear to be a risk of a further offence involving a child and that only the risk of a surge of paranoia and protest had held them back .

“ That eventuality can not be totally ruled out , although a number of clinical factors suggest that there has been a relaxation of his reactive faculties . In the event of his release on licence , which is not precluded by the findings of the clinical examination , it is ultimately the continuity , consistency and solidity of the reference points with which he is provided that should prevent a reaction of psychological destabilisation after such a lengthy period of incarceration . It would be helpful for him , at least initially , to receive support through psychological counselling . ”

The experts reported that the applicant was envisaging receiving such counselling “ to reassure everyone and myself , and in case I get depressed ” .

On DATE the judge responsible for the execution of sentences gave the following opinion :

“ PERSON is supported by the PERSON family , who have regularly come to see him in the visiting room for DATE . PERSON and PERSON have offered to provide [ the applicant ] with accommodation . They have already welcomed other people in difficulty into their family . In addition , Mr PERSON runs a company called ‘ Le pain de nos GPE . He will employ the prisoner to carry out administrative duties . [ The applicant ] will not be able to submit any other plans in view of his age ( DATE ) and his isolated family situation ( as a widower with no children ) . The assessment recently conducted by a panel of psychiatric experts concludes that his personality has mellowed and that he has maintained his intellectual faculties and his grasp of reality . There does not appear to be any risk of his committing a further criminal offence involving a child . The findings of the clinical examination do not stand in the way of his release on licence . The solidity of the reference points with which he has been provided should prevent a reaction of psychological destabilisation after such a lengthy period of incarceration . It would be helpful for him initially to receive support through psychological counselling , according to the experts .

I am forwarding the file on [ the applicant ] because I consider that after DATE in prison it is appropriate to review of his situation and thus assess the purpose of his sentence . Releasing him on licence would enable him to undergo compulsory medical and psychological treatment and to regain his liberty within a clearly defined framework , unlike an individual pardon . ”

Following the reform of the post - sentencing system , including the procedure for granting release on licence to long - term prisoners , pursuant to the PERSON of DATE , the Minister of ORG refused the application for the applicant ’s release and referred his case to the newly established courts .

On DATE the applicant availed himself of this new judicial procedure . In his application he again stated that friends of his would provide him with accommodation in an outbuilding at their home and with employment in their bakery on his release .

On DATE the sentence enforcement board issued a unanimous opinion in favour of his release on licence . The applicant ’s resettlement and probation officer also expressed an opinion strongly in favour of the application .

At the hearing in LOC the advocate - general submitted that the applicant ’s application should be refused in view of his “ lack of reform ” in relation to the acts that had led to his conviction .

In a decision of DATE ORG , observing that the applicant denied having committed the offence of which he had been convicted , refused his application on the following grounds :

“ The extremely serious offence which [ the applicant ] denies having committed was punished by a sentence of life imprisonment .

The psychiatric experts who examined [ the applicant ] ( in DATE and DATE ) could not rule out his potential dangerousness and the risk of his reoffending , the only means of averting such risks being through psychotherapeutic counselling or support , which by its very nature requires acceptance by the subject .

[ The applicant ’s ] position in relation to the offence committed and to the assessment which psychiatrists may make of a person ’s mental state rules out any counselling of that kind and precludes a finding that he is making ‘ serious efforts to readjust to society’ ... in spite of a coherent resettlement plan in terms of accommodation and employment . ”

Contending that that decision had required a confession as a new condition for release , the applicant appealed to ORG . His lawyer observed that the applicant was assured of work and accommodation on his release and that the most recent psychiatric report submitted by a panel of experts on DATE had concluded that nothing stood in the way of his release on licence as there no longer appeared to be any risk of his reoffending . Relying on LAW , the applicant ’s lawyer argued that making his client ’s release conditional on a confession was tantamount to a slow death sentence .

On DATE the applicant ’s friends attested that their offer of accommodation and employment , which they had repeatedly made over a period of DATE , was still valid although their bakery was currently being sold to a private company founded by their children ( a separate business registered at their home address ) .

In a judgment of DATE ORG upheld the decision of DATE in the following terms :

“ ... the offers of employment and accommodation referred to by the offender in support of his application as evidence of a social resettlement plan are closely interlinked and are currently in doubt as a result of the bankruptcy order against the person who made the offers . Furthermore , the paranoid tendencies still noted by the most recent expert would require psychological counselling , which the prisoner does not envisage undergoing . ”

Following a proposal to commute the applicant ’s sentence , a fresh psychiatric report on him was completed in DATE . It concluded :

“ ... In our view there has been no particularly perceptible change in the offender ’s mental state since the psychiatric assessments carried out in DATE . The character and personality traits observed do not make it possible to conclude with absolute certainty that he will not pose a significant danger in the community , in the psychiatric sense of the term .

The forecast can not be anything but reserved ... as to his ability to readjust . Prospects of change are barely perceptible , seeing that he is increasingly occupied with disparaging the experts’ methods rather than providing evidence to address the question of his plans for the future . ”

On DATE the applicant lodged a further application for release on licence with ORG sentencing ORG ( tribunal de l’application des peines ) . The prison authorities recommended applying a probationary semi - custodial regime . The public prosecutor was opposed to the applicant ’s release on licence , contending that such a measure would entail a dual risk for society , that of reoffending and that of psychological decompensation .

In a judgment of DATE , which was upheld on DATE by the ORG - sentencing ORG of ORG , the applicant was released on licence with effect from DATE until DATE , on which date the monitoring and supervision arrangements would expire . In addition to the standard requirements which the applicant was to observe ( place of residence , contact with the judge responsible for execution of sentences and ORG social workers , permission for travel ) , particular obligations were imposed on him : to submit to medical examinations , treatment or care , including in a hospital environment , and to refrain from contacting the victim ’s mother , from distributing any publication or audiovisual work produced or co - produced by himself relating , in whole or in part , to the offence committed , and from making any public comment on the offence . The courts held that the applicant now satisfied the conditions laid down in LAW ORG and based their decision on CARDINAL considerations . Firstly , he had a coherent plan in terms of both accommodation ( long - standing friends who had already assisted a number of people in difficulty ) and voluntary work for ORG , such arrangements being stable and long - term . Furthermore , with regard to his attitude towards the victims , the courts pointed out that the applicant had not made the slightest gesture to them and took refuge behind his alleged innocence , but added : “ It nevertheless appears that PERSON conduct does not , after DATE of imprisonment , represent an obstacle to his release on licence as it might have done in the past . ” Lastly , with regard to the prevention of further offences , they noted that the risk of his reoffending was limited ( “ a CARDINAL risk of reoffending is so rare ” ) and that the recent expert reports were generally in favour of his release on licence . The first - instance court concluded as follows :

“ There is no evidence to suggest that a more positive development may be expected in PERSON case , and there is cause to fear that even if his personality may have ‘ mellowed’ according to the experts’ findings in DATE , it will not truly change . Accordingly , refusing his application for release on licence would amount to his virtually permanent exclusion from society , which does not seem justified in view of his resettlement plan and the limited nature of the risk of his reoffending . ”

Under the legislation in force on the date of the applicant ’s conviction , murder carried the death penalty if it was preceded , accompanied or followed by another serious crime , and was punishable by life imprisonment in all other cases . The death penalty was abolished on CARDINAL October DATE . At the time of the applicant ’s conviction life sentences were irreducible ; the possibility of parole after a specified minimum term was introduced in a law of CARDINAL DATE . Article CARDINAL of LAW currently provides for a minimum term of DATE in the case of life imprisonment . The term may be increased to a maximum of DATE by a special decision of ORG . Under LAW of DATE , it is now possible to set a minimum term of DATE , or a whole - life term , where a life sentence is imposed for a certain category of offences , namely the murder , whether premeditated or not , of a minor DATE preceded or accompanied by rape , torture or acts of barbarity ( Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW ) .

Parole is the longest established means of relaxing the conditions of sentences . It was introduced by the PERSON of DATE . The PERSON initially entrusted decisions on parole to the Minister for the ORG and subsequently , in DATE , to the Minister of ORG , when the latter was assigned responsibility for ORG . The provisions of the DATE Law were incorporated into LAW . LAW DATE and DATE removed the requirement of good conduct in prison , making “ serious evidence of readjusting to society ” the criterion for release on licence , and empowered the judge responsible for the execution of sentences to decide whether to grant a licence to prisoners serving sentences not exceeding DATE ( this power was extended to sentences not exceeding DATE by the PERSON of DATE ) .

In DATE the prison authorities were faced with a worrying decline in the number of licences granted , particularly in the case of longer sentences . The powers vested in the Minister of ORG were also strongly contested . In DATE the Minister of ORG decided to appoint a commission to make proposals for revitalising the parole system . In DATE ORG , chaired by PERSON , a judge of ORG , submitted its report .

Law no . DATE of DATE on reinforcing the presumption of innocence and GPE rights included many of the proposals made in the report . It made radical changes to the laws on parole by removing the Minister ’s powers and replacing them with an adversarial judicial procedure , and by broadening the conditions for release on licence .

The Law of DATE on adapting the justice system to trends in crime ( which came into force on DATE ) completed the process of transferring post - sentencing powers to the judicial system by establishing the post - sentencing courts as ordinary courts . It lays down provisions on post - sentencing measures based on the principle of adapting sentences to the individual ( Article CARDINAL of LAW ( ORG ) ) :

“ ... The execution of sentences shall encourage the integration or reintegration of convicted persons into society and the prevention of recidivism , while respecting the interests of society and the rights of victims . To that end , sentences may be adjusted during the course of their execution to take into account changes in the convicted person ’s personality and circumstances . The adaptation of sentences to the individual must , wherever possible , allow the gradual return of offenders to liberty and ensure that they are not released without any form of judicial supervision . ”

Prior to the Law of DATE the competent authority was either the judge responsible for the execution of sentences or the Minister of ORG . In both cases the proceedings did not observe the adversarial principle or due process . Since that date , applications for release on licence falling outside the sphere of competence of the judge responsible for the execution of sentences ( persons sentenced to more than ten years’ imprisonment with DATE remaining to be served ) have been examined by judicial bodies : at first instance , the regional parole courts , instituted by the above - mentioned PERSON ( see paragraph CARDINAL above ) and subsequently replaced by the post - sentencing courts pursuant to the LAW ( see paragraph CARDINAL above ) , and , on appeal , ORG ( see paragraph CARDINAL above ) , now replaced by the Post - sentencing ORG ( see paragraph CARDINAL above ) . Since DATE , cases have been referred to these courts on an application by the convicted person or on the recommendation of the public prosecutor ( Article CARDINAL - CARDINAL of the ORG ) . The post - sentencing court gives judgment after obtaining the opinion of a ORG representative , following adversarial proceedings in which it hears the public prosecutor ’s submissions and the observations of the convicted person and , where appropriate , his or her lawyer ( ibid . ) . An appeal against the post - sentencing court ’s judgment may be lodged within a DATE period ( Article CARDINAL of the ORG ) . The ORG - sentencing ORG comprises , in addition to the president and CARDINAL other judges , an official from an association for the resettlement of offenders and an official from a victim - support association ( Article CARDINAL of the ORG ) . An appeal on points of law may be lodged within DATE after the judgment of the appellate division has been served ( Article CARDINAL of the ORG ) .

As regards temporal conditions , LAW of the ORG provides that life prisoners may not apply to be released on licence until DATE has elapsed ( DATE before the PERSON of DATE and DATE since ) . Whereas it was previously impossible to apply for release on licence before the minimum term in relation to the sentence had expired , there is now an exception to this rule : the PERSON of DATE entitles prisoners to ask for the conditions of their sentence to be relaxed even where a minimum term has been set ( ORG CARDINAL to DATE of the ORG ) if they have shown “ serious evidence of readjusting to society ” . Lastly , LAW ORG provides that the situation of convicted persons is reviewed at least once DATE if they satisfy the conditions laid down in LAW ORG .

As regards substantive conditions , Article CARDINAL § CARDINAL of the ORG gives a precise indication of the criteria to be taken into account in examining an application for release on licence :

“ Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending . Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society , particularly if they can show that they have engaged in occupational activities , or regularly attended an educational or vocational training course , or have taken part in a work experience scheme , or had a temporary contract of employment with a view to their social integration , or that their presence is essential to the life of their family , or that they have to undergo treatment , or that they have made efforts to compensate their victims . ”

On DATE there were CARDINAL prisoners serving life sentences ; during DATE , CARDINAL were released on licence . In DATE , out of a total of CARDINAL life prisoners , CARDINAL were released on licence . In DATE and DATE the figures were CARDINAL and CARDINAL prisoners and CARDINAL and CARDINAL licences respectively .

The relevant passages of the report by the ORG commission of inquiry ( “ GPE faced with its prisons ” , no . CARDINAL , DATE , p. CARDINAL ) and the report by the ORG commission of inquiry on detention conditions ( “ Prisons : a humiliation for the Republic ” , no . CARDINAL , DATE section on “ The lack of prospects for ‘ long - term’ prisoners ” ) read , respectively :

“ The abolition of the death penalty in DATE calls for reflection on how to punish the most heinous crimes and on expectations of prison . Depriving people of their liberty for ever means leaving them to die slowly ; opposition in principle to the death penalty implies , on the contrary , that society should envisage in due course the reintegration of those who appeared to have been permanently excluded on account of the atrocity or repetition of their crimes ... Abolition of the death penalty must therefore be translated into a demanding attitude on the part of society towards the prison system . It would be deeply hypocritical to abolish the death penalty without changing conditions of detention , without envisaging reintegration into society and without also accepting the risks to society that such reintegration entails ... ”

“ GPE ’s prisons house an increasing number of prisoners serving long sentences . They appear to be deprived of all prospects and , in such conditions , form a population that is extremely difficult for prison staff to manage .

The post - sentencing scheme , which is supposed to allow sentences to be adapted to the individual , seems to be experiencing difficulties in its implementation , while there has been a worrying decline in measures to relax the conditions of sentences . ... The current scarcity of such measures accounts for the difficulty in implementing a proper post - sentencing scheme . The commission of inquiry has seen in the GPE that offenders have genuine prospects of having their sentences relaxed after a certain period of detention ; this encourages them to become fully focused on reintegration .

... While the length of detention is increasing , in particular because sentences are becoming more and more severe , measures to relax the conditions of sentences , notably release on licence , are being used only to a limited extent .

... In enacting the PERSON on reinforcing the presumption of innocence and GPE rights , ORG has decided to carry out a thorough reform of the rules on granting release on licence .

The eligibility criteria for such a measure , which were considered overly restrictive , have been broadened . ... The fact remains that the prison system DATE appears quite helpless in dealing with long - term prisoners . ”

Matters relating to long - term imprisonment and conditional release were addressed by ORG as DATE as DATE , when it adopted ORG ( CARDINAL ) CARDINAL on the treatment of long - term prisoners :

“ ... PERSON Recommends that the governments of the member states : ...

NORP ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted ;

grant the prisoner conditional release , subject to the statutory requirements relating to time served , as soon as a favourable prognosis can be formulated ; considerations of general prevention alone should not justify refusal of conditional release ;

adapt to life sentences the same principles as apply to long - term sentences ;

NORP ensure that a review , as referred to in CARDINAL , of the life sentence should take place , if not done before , after DATE of detention and be repeated at regular intervals ; ... ”

In its general report the sub - committee responsible for drafting the resolution stated :

“ ... it is inhuman to imprison a person for life without any hope of release . A crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society . Nobody should be deprived of the chance of possible release . Just how far this chance can be realised must depend on the individual prognosis . ”

Beyond this aspect relating to human dignity , ORG pointed out in Recommendation No . R ( CARDINAL ) CARDINAL concerning prison overcrowding and prison population inflation that parole was CARDINAL of the most effective means of reducing overcrowding .

Following on from ORG ( CARDINAL ) CARDINAL on standard minimum rules for the treatment of prisoners , Recommendation No . R ( CARDINAL ) CARDINAL on ORG takes the similar ORG rules and adapts them for use at NORP level . A revised version of the rules was adopted by ORG on DATE ( Recommendation Rec(CARDINAL)CARDINAL ) . Rules CARDINAL ( Objective of the regime for sentenced prisoners ) and CARDINAL ( Release of sentenced prisoners ) read :

“ Objective of the regime for sentenced prisoners

CARDINAL In addition to the rules that apply to all prisoners , the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime - free life .

CARDINAL Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment . ”

“ Release of sentenced prisoners

CARDINAL.CARDINAL Sentenced prisoners shall be assisted in good time prior to release by procedures and special programmes enabling them to make the transition from life in prison to a law - abiding life in the community .

CARDINAL In the case of those prisoners with longer sentences in particular , steps shall be taken to ensure a gradual return to life in free society .

CARDINAL This aim may be achieved by a pre - release programme in prison or by partial or conditional release under supervision combined with effective social support .

CARDINAL Prison authorities shall work closely with services and agencies that supervise and assist released prisoners to enable all sentenced prisoners to re - establish themselves in the community , in particular with regard to family life and employment .

CARDINAL Representatives of such social services or agencies shall be afforded all necessary access to the prison and to prisoners to allow them to assist with preparations for release and the planning of after - care programmes . ”

These rules are to be read alongside Recommendation Rec(CARDINAL)CARDINAL of ORG to member States on conditional release ( parole ) ( adopted on DATE at the ORG meeting of ORG ) and Recommendation Rec(CARDINAL)CARDINAL on the management by prison administrations of life sentence and other long - term prisoners ( adopted on DATE at the ORG meeting of ORG ) .

In their presentations of Recommendations Rec(CARDINAL)CARDINAL and Rec(CARDINAL)CARDINAL at the ad hoc Conference of Directors of Prison Administration and Probation Service organised by ORG GPE , DATE ) , PERSON and PERSON gave an overview of legislation on life imprisonment and conditional release in the member ORG .

In her presentation on life sentences PERSON stated :

“ A majority of ORG make legislative provision for life sentences . The extent to which such sentences can be , and are in fact imposed , varies . Life sentences do not necessarily imply imprisonment for the remainder of natural life . Most countries make provision for a review of life sentences with the possibility of granting release from prison . Some countries impose a very long period of mandatory detention for lifers , e.g. DATE in GPE , DATE in GPE , DATE in GPE , GPE and GPE , DATE in GPE , GPE , GPE and GPE , while in others release is possible after DATE , e.g. in GPE , or DATE in GPE , GPE , GPE and GPE ...

Probably the most wide - ranging provisions for the use of life imprisonment are to be found in GPE and GPE . There , a life sentence is mandatory for murder and a discretionary life imprisonment can be imposed for other serious offences against the person . With mandatory life sentences , a tariff giving the earliest date at which conditional release may be granted is set . ‘ Whole life GPE mean that the imprisonment can not be exhausted during the natural life of the prisoner . This tariff can be reviewed after DATE . In addition , since DATE , an offender found guilty for the second time of serious sexual or violent crimes automatically receives a life sentence unless there are exceptional reasons for not imposing it ( automatic life sentence ) .

By contrast , CARDINAL NORP countries , GPE , GPE , GPE , GPE and GPE , make no legislative provision for life imprisonment . In GPE , the most severe sanction is a sentence from DATE that may only be imposed exceptionally . Conditional release may be granted after CARDINAL , exceptionally CARDINAL , of the sentence has been served . CARDINAL persons were sentenced to exceptionally long - term imprisonment DATE . In GPE , the most severe sanction is a determinate sentence of imprisonment for DATE . Conditional release is possible after DATE has been served . In GPE , the maximum prison sentence is for DATE , exceptionally for DATE . NORP legislation provides for a maximum of DATE but such a sentence has never been imposed to date . Prisoners serving DATE may be conditionally released after DATE of the sentence has been served . In GPE the maximum sentence is imprisonment for DATE . In GPE , the legislation provides for life sentences but no such sentence has been imposed DATE . ”

PERSON observed that there had been an increase in the number of long - term prisoners DATE those serving sentences of DATE or more , according to the definition given in Rec(CARDINAL)CARDINAL DATE as a result of changes in crime policies . In western LOC this increase was linked to the growing number of convicted persons and the decreasing number of prisoners being released . These phenomena were combined with tougher policies on certain crimes in respect of which conditional release was granted under very restrictive conditions ( for example , sexual , violent or drug - related offences ) . In central and eastern LOC the considerable number of long - term and life - sentence prisoners was attributable not only to the imposition of long sentences but also to the abolition of the death penalty .

As regards conditional release – “ one of the most effective and constructive means of preventing reoffending and promoting resettlement , providing the prisoner with planned , assisted and supervised reintegration into the community ” ( preamble to Rec(CARDINAL)CARDINAL ) – the report by PERSON GPE compared the QUANTITY models in use in LOC : the discretionary system , the release system and mixed systems in relation to shorter sentences . The discretionary release system was found in most NORP countries applying the principle of parole , including GPE . The system was related to the concept of individualisation ( or personalisation ) , since by its very nature it excluded any possibility of automatic release . Mr GPE observed that the main drawback of the discretionary system was the lack of explicit criteria for granting conditional release , producing the following effects :

“ – disparities between decisions where several bodies are involved in deciding on conditional release ( which is usually the case except in countries with a small number of inhabitants ) ;

– unreliability of assessments of the likelihood of reoffending where performed without specialist scientific tools ;

– uncertainty as to the date of release renders it difficult to make practical arrangements in advance ;

– the above factors may undermine confidence in the system and reduce prisoners’ motivation to cooperate in observance of the conditions and requirements of supervision . ”

The mandatory release system had existed in GPE since DATE . Prisoners serving a fixed term of imprisonment had to be conditionally released after CARDINAL of the sentence . The focus in this system was on personalisation of supervision ( control and assistance measures ) and on the conditions to be satisfied by the prisoner after release . The mandatory release system was above all intended to be egalitarian . According to the report , it was far from commanding unanimous approval and might be reconsidered by ORG .

The mixed system combined the discretionary system for long sentences with the mandatory system for shorter ones . It was fundamentally pragmatic . An example was the system applied in GPE and GPE .

In any event , Recommendation Rec(CARDINAL)CARDINAL did not favour any CARDINAL system over another and simply reaffirmed “ ORG unambiguous support for the principle of conditional release – a planned , assisted and supervised reintegration in the community ” .

DATE . On DATE ORG Commissioner for Human Rights made public a report ( CommDH ( CARDINAL ) on the effective respect for human rights in GPE . Under point ( d ) ( “ Need to put in place a rehabilitation policy ” ) of Part IV , concerning the prison system , the Commissioner noted : “ ... the public authorities have the specific responsibility of looking to each new prisoner ’s future by clearly defining the main function of the prison sentence and adapting it so that every means is employed to guide every new arrival towards successful rehabilitation . This means above all preventing reoffending . ”


Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

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

On DATE ORG and Highways expropriated plots of land belonging to the applicants in GPE in order to build a motorway . A committee of experts assessed the value of the plots and the relevant amounts were paid to them when the expropriation took place .

On DATE , following the applicants’ requests for increased compensation , ORG awarded them an additional compensation of MONEY ( TRL ) plus interest at the statutory rate , applicable at the date of the court ’s decision , running from the date of transfer of title deeds of the plots of land .

On DATE ORG upheld the judgment of ORG .

On DATE ORG and Highways paid the amount of GPE CARDINAL,CARDINAL,CARDINAL to the applicants , interest included .

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


Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - claim dismissed

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

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

The applicant was in active military service DATE . In DATE while he was on leave he was refused a free plane ticket on account of the debt accrued by ORG to the air carriers . The applicant purchased a ticket for himself expecting to be reimbursed by the employer later .

After his retirement from active service , the applicant took paid leave in DATE .

Apparently , in DATE the military authority informed the applicant that he would not be reimbursed for the ticket he had bought in DATE because he was entitled to CARDINAL period of paid leave per year .

It appears that in DATE the applicant brought civil proceedings in LOC of PERSON claiming compensation in respect of pecuniary and non - pecuniary damage caused by the above refusal . Apparently , ORG dismissed his claim .

NORP In DATE the applicant brought proceedings in ORG of the PERSON against CARDINAL military authorities : the NORP regional department of ORG and the financial department of the Privolzhsko - Uralskiy military command . He claimed annulment of a DATE contract between ORG and an air company , as well as a compensation in respect of pecuniary damage ( MONEY , RUB ) and non - pecuniary damage in the amount of RUB CARDINAL in relation to the refusal of the ticket in DATE .

By a judgment of DATE ORG of ORG dismissed the applicant 's claims for failure to comply with the statutory time - limit ( see paragraph CARDINAL below ) . The court heard the applicant , the first defendant 's representative and the second defendant 's lawyer .

The applicant lodged an appeal before ORG of ORG . The court heard the applicant , a representative of the Privolzhsko - Uralskiy military commander . A prosecutor was also present . At the end of the hearing , he made a statement , exercising a right conferred on him by LAW , in force at the material time ( see paragraph CARDINAL below ) . The applicant was not afforded an opportunity to comment on the above statement . On DATE ORG of ORG upheld the judgment on appeal . It considered that , as confirmed by the applicant , he had first learnt about the violation of his right on DATE ; that his references to the contracts concluded by the ORG authorities had been irrelevant for his claim .

NORP Under LAW and CARDINAL of LAW , the general limitation period for claiming protection of a violated right amounted to DATE .

Under LAW § CARDINAL of LAW a complaint against unlawful actions by a public official should be lodged with the competent court DATE from the date on which the person concerned became aware of the violation of his or her rights or freedoms . By a ruling of DATE the Plenary Session of ORG of GPE held that if a military officer 's complaint against unlawful actions of military authorities contained a claim for the redress in respect of the alleged violation of his or her right , the DATE time - limit should not apply ( § CARDINAL ) .

Both in first - instance and appeal proceedings , a party could challenge the prosecutor participating in the proceedings on account of his or her previous participation in the case in a different capacity , his next - of - kin status in relation to a party or other persons involved in the case , or if the prosecutor had an interest in the outcome of the case or if other circumstances indicated his partiality ( Articles DATE , DATE and CARDINAL of LAW ) .

After the oral pleading by the parties but before the court 's deliberations , the prosecutor was allowed to give his conclusions as to the lawfulness and reasonableness of the court decision ( Articles CARDINAL and CARDINAL ) . The parties could not comment on the above conclusions .

The relevant part of ORG Resolution CARDINAL ( DATE ) On ORG in ORG by LAW reads as follows :

“ it is essential :

a. that any role for prosecutors in the general protection of human rights does not give rise to any conflict of interest or act as a deterrent to individuals seeking state protection of their rights ;

b. that an effective separation of state power between branches of government is respected in the allocation of additional functions to prosecutors , with complete independence of the public prosecution from intervention on the level of individual cases by any branch of government ; and

c. that the powers and responsibilities of prosecutors are limited to the prosecution of criminal offences and a general role in defending public interest through the criminal justice system , with separate , appropriately located and effective bodies established to discharge any other functions ... ”

ORG ) at its CARDINALrd plenary session ( DATE ) adopted an Opinion on the Prosecutor 's Offices Act ( see above ) . Its relevant provisions provide as follows :

“ ... DATE ... It is , of course , clear that ORG is among those Offices which does not conform to the model which ORG considered to be essential . Moreover , in respect of the ORG 's predominant role in the NORP administration , which can hardly be described as limited or exceptional , ORG does not seem to conform to the tests ... which are as follows :

In addition to the essential role played by prosecutors in the criminal justice system , some member states of ORG provide for the participation of the prosecutor in the civil and administrative sectors for historical , efficiency and economic reasons but their role should always be exceptional ( principle of exceptionality ) .

The role of the prosecutor in civil and administrative procedures should not be predominant ; the intervention of the prosecutor can only be accepted when the objective of this procedure can not , or hardly be ensured otherwise ( principle of subsidiarity ) .

The participation of the prosecutor in the civil and administrative sectors should be limited and must always have a well - founded , recognisable aim ( principle of speciality ) .

GPE can entitle prosecutors to defend the interest of the state ( principle of protection of state interest ) .

Prosecutors can be entitled to initiate procedures or to intervene in ongoing procedures or to use various legal remedies to ensure legality ( principle of legality ) .

In case it is required for reasons of public interest and/or the legality of decisions ( e.g in cases of protection of the environment , insolvency etc . ) the participation of the prosecutor can be justified ( principle of public interest ) .

Protecting the rights and interests of disadvantaged groups of society unable to exercise their rights can be an exceptional reason for the intervention of the prosecutor ( principle of protection of human rights ) ...

Prosecutors should have no decision - making powers outside the criminal field or be given more rights than other parties before courts ( principle of equality of arms ) .

Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well - grounded reasons ( principle of non - discrimination ) ...

There have been undoubted reforms in the NORP system of ORG , notably the limitations on the prosecutor 's powers of supervisory review of court decisions ... and the fact that intervention in court cases on behalf of the citizens is limited to cases where they are unable to act for themselves or where this is justified because numerous citizens are affected by the wrongdoing concerned ” .

Opinion no . CARDINAL ( DATE ) adopted by ORG , an advisory body set up by ORG by its decision of DATE , contains the following comparative analysis [ internal footnotes omitted ] :

“ CARDINAL . Court actions – irrespective of the procedural rules governing them ( rules of civil proceedings or special administrative law rules ) – are bound to court proceedings : prosecutors act as parties therein . Prosecution services did not report any special powers or authority when prosecutors take part in civil court proceedings as petitioners , they have the same powers as other parties . Their position is not exclusive , the proceedings may be started by other interested persons as well . In such cases prosecutors have definitely no decision - making powers regarding the merit of cases , their decisions concern only initiation of a case : submitting a petition to the civil law court .

Almost in all countries where prosecutors have competences in the non criminal field , prosecutors are empowered to launch new court - actions , to use ordinary and extraordinary remedies ( appeals ) as parties of proceedings . However some rules could be identified ( prohibition of extraordinary appeal or proposal for reopening of proceedings ; prohibition of settlement in the name of the party ) ...

The aims of non penal activities of prosecutors , irrespective of their substantive or procedural differences , are much more concordant : ensuring rule of law ( integrity of democratic decisions , legality , observance of law , remedy against violation of law ) , protection of rights and liberties of persons ( mostly of those incapable to protect their rights – minors , persons with unknown domicile , mentally incapables ) , protection of assets and interests of ORG , protection of public interest ( or of public order ) , harmonisation of jurisdiction of courts ( special remedies against final court decisions in the best interest of law , action as parties in such proceedings of the highest court levels ) ...

... [ T]he ORG is aware of occasional improper practice of public prosecutors acting outside the field of criminal justice assessed by the ORG or by certain ORG or criticised by other bodies of ORG . The most disconcerting events were in connection with rejection without reason of requests to start civil law court actions ; intervention in court proceedings without reasonable interest ( of ORG , of public interest or based on protection of rights ) violating the principle of equality of arms ; quashing of final judgment of courts violating the principle of legal certainty ( res judicata ) ; participation of prosecutors in panels of supreme courts confusing the decision - making role of judges with prosecutors tasks ; unlimited right to start litigation .

The contribution of prosecutors to the consolidation of the case - law of the courts is a fact in many member GPE . The role of prosecutors in this respect should not allow them to exercise undue influence on the final decision - taking process by judges . ”

The Opinion referred to the following principles applicable in the relevant field :

“ a. the principle of separation of powers should be respected in connection with the prosecutors ' tasks and activities outside the criminal law field and the role of courts to protect human rights ;

b. the respect of impartiality and fairness should characterise the action of prosecutors acting outside the criminal law field as well ;

c. these functions are carried out “ on behalf of society and in the public interest ” , to ensure the application of law while respecting fundamental rights and freedoms and within the competencies given to prosecutors by law , as well as the LAW and the case - law of the ORG ;

d. such competencies of prosecutors should be regulated by law as precisely as possible ;

e. there should be no undue intervention in the activities of prosecution services ;

PERSON when acting outside the criminal law field , prosecutors should enjoy the same rights and obligations as any other party and should not enjoy a privileged position in the court proceedings ( equality of arms ) ;

g. the action of prosecution services on behalf of society to defend public interest in non criminal matters must not violate the principle of binding force of final court decisions ( res judicata ) with some exceptions established in accordance with international obligations including the case - law of the ORG ;

h. the obligation of prosecutors to reason their actions and to make these reasons open for persons or institutions involved or interested in the case should be prescribed by law ;

i. the right of persons or institutions , involved or interested in the civil law cases to claim against measure or default of prosecutors should be assured ;

PERSON the developments in the case - law of the ORG concerning prosecution services ' activities outside the criminal law field should be closely followed in order to ensure that legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments ... ”


Mrs PERSON is a secretary and lives in PERSON .

On DATE she was recruited on a fixed - term contract to the accounts department of ORG . As her contract had not been renewed after CARDINAL DATE , she required ORG to reinstate her within DATE .

When that time - limit expired , the applicant applied to ORG ( “ the ORG ” ) on DATE for judicial review of her employer 's tacit refusal and recognition of the existence of a permanent contract of employment , in consideration , inter alia , of the conditions under which she had performed her duties , which , she asserted , were comparable to those obtaining in the case of an ordinary contract of employment with the administrative authorities .

On DATE she asked for a date to be fixed for the hearing .

On DATE the President of the ORG referred the case to ORG . The hearing was held on DATE . In a judgment delivered on that date and deposited with the registry on CARDINAL DATE the ORG declared the application inadmissible .

On DATE Mrs PERSON appealed to the PERSON . According to the information supplied by her lawyer at the hearing before the ORG , the proceedings are still pending .


Violation of Art. 8;No violation of Art. 5-3

Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE the applicant was remanded in custody by an order of ORG on suspicion of having committed money laundering while acting in an organised criminal gang .

The applicant appealed . On DATE ORG upheld the decision to remand her in custody .

Shortly after her arrival in FAC , the applicant was examined by the prison doctor . She informed him that she did not suffer from any illnesses and that she was not taking any special medication .

On DATE the applicant complained to the prison doctor of pain in the chest area . The doctor diagnosed vegetative neurosis and prescribed the appropriate medication .

On DATE the GPE ORG extended the applicant 's detention , referring to the need to conduct further investigations . This decision was upheld by ORG on DATE .

On DATE the applicant again complained of chest pain and was placed under observation . On CARDINAL , CARDINAL and DATE she reported the same symptoms and was prescribed medication .

On DATE ORG again extended the applicant 's detention . It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant . It also relied on the risk that the applicant might tamper with evidence , given the nature of the charges against her and the fact that she had acted in concert with the co - accused . This decision was upheld by ORG on DATE .

The applicant submits that in DATE she discovered a lump in her breast during a self - examination . She informed the prison doctor on DATE . The prison doctor confirmed that there was a lump in the applicant 's left breast and sent her to ORG in GPE . During the consultation , which took place on DATE , a doctor confirmed the existence of the lump and ordered that she undergo a mammography .

The applicant 's detention was subsequently extended on DATE . ORG referred to the reasons previously given .

The mammography was performed on DATE .

On DATE ORG refused the applicant 's motion for a change of the preventive measure . He considered that according to a cardiologist 's opinion the applicant could be kept in detention pending trial . He also stressed that an expert oncologist had been asked to prepare an opinion on the applicant 's state of health .

The applicant subsequently again asked for a change of the preventive measure . On DATE the prosecutor considered that since he had not yet received the expert oncologist 's opinion he could not decide on the applicant 's release . However , he stressed that , according to the information provided by the expert , the applicant could , if necessary , be operated on in the surgical ward of the prison hospital .

The expert oncologist submitted his opinion on DATE . He stated that the lump should be removed and sent for a histopathological examination . He confirmed that the operation could be performed in the surgical ward of the prison hospital . Referring to the opinion , on DATE the prosecutor dismissed the applicant 's motion for a change of the preventive measure .

On DATE ORG extended the applicant 's detention , referring to the reasons previously given .

On DATE the applicant underwent surgery in the prison hospital . She had the lump removed from her breast .

NORP The applicant 's detention was subsequently extended on DATE , DATE and CARDINAL DATE . The applicant 's appeals against those decisions were dismissed .

Meanwhile , on DATE the prosecutor considered that there was no reason for the applicant to be released and that she could be treated in the prison hospital .

On DATE an act of indictment was filed with ORG . The applicant was charged with money laundering committed while acting in an organised criminal gang . The indictment concerned CARDINAL co - accused .

On DATE ORG ordered the applicant 's release on bail ( MONEY ) . The court held that keeping the applicant in custody was no longer necessary to ensure the proper course of the proceedings .

It would appear that the criminal proceedings against the applicant are pending .

At the time of lodging her application with the ORG the applicant had been detained in the course of criminal proceedings against her .

On CARDINAL DATE ORG received the applicant 's first letter , an application form dated DATE . The envelope bears a handwritten note reading “ censored on DATE ” ( ocenzurowano .... ) and an illegible signature . It also bears a stamp reading “ ORG prison ” ( PERSON Lublińcu ) .

On DATE the NORP Regional Prosecutor informed the applicant that her family could visit her every DATE .

On DATE the applicant was again informed by ORG that her children could visit her DATE .

During the investigation , and subsequently once the trial had started , the applicant 's children visited the applicant on average DATE .

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