Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

NORP The applicant was born in DATE and lives in PERSON ( ORG ) .

On DATE the applicant brought proceedings in the Benevento Magistrate 's Court , sitting as an employment tribunal , seeking acknowledgement of her right to be reregistered on the lists of farmers and of her status in that capacity . That status had been contested by ORG ( ORG – “ the ORG ” ) . Her entitlement to a maternity allowance depended on the type of occupational status she had .

On DATE the ORG set the case down for the first hearing on DATE . On DATE it also requested documents relating to the records drawn up by the labour inspector and ordered them to be filed at a hearing on DATE . On DATE , at the request of counsel for the defendant , the ORG declared the proceedings interrupted on the ground that the ORG had been abolished .

On DATE the applicant lodged an application with the court registry for the proceedings to be resumed against the social - security department ( ORG ) . On DATE the ORG set the case down for hearing on DATE . However , that hearing was adjourned by the court of its own motion to DATE . The next QUANTITY hearings , held DATE and DATE , were devoted to hearing evidence from witnesses . CARDINAL of those hearings was adjourned at the parties ' request . On DATE the parties made their submissions .

In a judgment of DATE , the text of which was deposited with the registry on DATE , the ORG dismissed the claim because the applicant had failed to show that a relationship of subordination had existed at her work .

On DATE the applicant lodged an appeal with ORG . On DATE the president set the appeal down for hearing on DATE . On DATE ORG reserved judgment . In a judgment of DATE , the text of which was deposited with the registry on DATE , ORG dismissed the appeal .

On DATE the applicant lodged an application with ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto Act ” , complaining of the excessive length of the above - described proceedings . She asked the court to rule that there had been a breach of LAW and to order ORG to pay compensation for the non - pecuniary damage sustained , plus an unquantified amount for costs and expenses .

In a decision of CARDINAL DATE , the text of which was deposited with the registry on DATE , ORG found that the proceedings had been excessively long . It held as follows :

“ ... The Convention principle that everyone 's case must be examined within a reasonable time has been breached , and the applicant has sustained non - pecuniary damage for the excessive length of the proceedings involving interests of considerable importance . In truth , the proceedings ... should not have lasted DATE for CARDINAL levels of jurisdiction . Non - pecuniary damage ( distress on account of the prolongment of proceedings relating to an important situation in the applicant 's life ) must be deemed to exist in relation to the violation of LAW a violation which objectively exists on account of the unreasonable length of the proceedings .

Given the complexity of the case , the conduct of the parties has not caused any delays . Nor has the conduct of the court and the other authorities involved in disposing of the proceedings caused the excessive delay . In truth , the length of the adjournments and thus the delay must be considered to be due to structural reasons .

The damage has to be determined on the basis of LAW in accordance with the criteria established in Articles CARDINAL , DATE and ORG and only the damage relating to the period beyond the reasonable time must be taken into consideration under section CARDINAL of LAW .

In respect of non - pecuniary damage ( moral distress on account of the length of the proceedings beyond the reasonable time , as above ) an amount of MONEY should be paid for each of DATE exceeding a reasonable time , plus statutory interest accruing from DATE on which the reasonable time was exceeded , which was at DATE ( the usual scale relating to just satisfaction has been redefined in relation to the negative outcome of the proceedings at first instance , which has an effect on the expectations of justice and therefore on the stress caused by the delay ) . ... ”

ORG awarded the applicant MONEY ( ORG ) , on an equitable basis , in compensation for non - pecuniary damage and ORG CARDINAL for costs and expenses . That decision became final by DATE at the latest and was executed by the authorities on an unspecified date DATE and DATE .

In a letter of DATE the applicant informed ORG outcome of the domestic proceedings and asked it to resume its examination of her application .

In the same letter the applicant also informed the ORG that she did not intend to appeal to ORG because an appeal to that court could only be on points of law .

Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to LAW .

CHAPTER II

Just satisfaction Section CARDINAL Entitlement to just satisfaction

“ CARDINAL . Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the ' reasonable - time ' requirement in LAW , shall be entitled to just satisfaction .

NORP In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .

NORP The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :

( a ) NORP only damage attributable to the period beyond the reasonable time referred to in subsection CARDINAL may be taken into account ;

( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . ”

Section CARDINAL Procedure

“ CARDINAL . Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending .

NORP The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .

The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .

NORP The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG ( Avvocatura dello Stato ) DATE prior to the date of the hearing before the ORG .

The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up till DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties .

The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .

To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . ”

Section CARDINAL Time - limits and procedures for lodging applications

“ A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . ”

Section CARDINAL Communications

“ If the court decides to allow an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity . ”

Section CARDINAL Transitional provisions

“ CARDINAL . Within DATE after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the ' reasonable - time ' requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .

NORP The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection CARDINAL of this section . ”

Section CARDINAL Financial provisions

“ CARDINAL . NORP The financial cost of implementing this LAW , which is put at MONEY from DATE , shall be met by releasing funds entered in the DATE budget DATE in the chapter concerning the basic current - liability estimates from the ' special fund ' in DATE forecast of ORG . ORG deposits shall be set aside for that purpose .

The Ministry of the ORG , ORG is authorised to make the appropriate budgetary adjustments by decree . ”

On appeal from decisions delivered by the courts of appeal in “ Pinto ” proceedings , ORG , sitting as a full court ( ORG ) , gave CARDINAL judgments ( nos . CARDINAL , DATE , DATE and DATE ) on DATE , the texts of which were deposited with the registry on CARDINAL DATE , quashing the appeal court 's decision and remitting the case for a rehearing . It held that “ the case - law of ORG is binding on the NORP courts regarding the application of PERSON no . CARDINAL ” .

In its judgment no . CARDINAL it affirmed , inter alia , the principle that

“ the court of appeal 's determination of non - pecuniary damage in accordance with LAW no . CARDINAL/CARDINAL , although inherently based on equitable principles , must be done in a legally defined framework since reference has to be made to the amounts awarded , in similar cases , by ORG . Some divergence is permissible , within reason . ”

Extracts from the plenary ORG judgment no . CARDINAL deposited with the registry on DATE

“ ... CARDINAL.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of DATE no . CARDINAL , and in particular in determining the non - pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of ORG , whether considered generally as interpretative guidelines which the said ORG has laid down with regard to the consequences of the said violation , or with reference to a specific case in which ORG has already had occasion to give a judgment on the delay in reaching a decision . ...

As stipulated in LAW , the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “ violation of ORG , ratified in accordance with LAW DATE no . CARDINAL , for failure to comply with the reasonable time referred to in DATE , paragraph CARDINAL of the LAW . ” In other words , PERSON no . CARDINAL/CARDINAL identifies the fact constituting the right to compensation by reference to a specific provision of ORG . This Convention instituted a ORG ( ORG , with its seat in GPE ) to ensure compliance with the provisions contained therein ( Article CARDINAL ) . Accordingly , the competence of the said court to determine , and therefore to interpret , the significance of the said provisions must be recognised .

As the fact constituting the right conferred by PERSON no . ORG consists of a violation of LAW , it is for ORG to determine all the elements of such a legal fact , which thus ends by being “ brought into conformity ” by ORG , whose case - law is binding on the NORP courts in so far as the application of PERSON no . PERSON is concerned .

It is not necessary therefore to pose the general problem of the relationships between LAW and the internal judicial system , which ORG ( Procuratore Generale ) has amply discussed in court . Whatever opinion one may have about that controversial issue and therefore about the place of LAW in the context of the sources of domestic law , it is certain that the direct implementation in the NORP judicial system of a provision of LAW , established by PERSON no . PERSON ( that is , by LAW in the part relating to “ reasonable time ” ) , can not diverge from the interpretation which ORG gives of the same provision .

The opposite argument , which would permit a substantial divergence between the application accorded to PERSON no . CARDINAL/CARDINAL in the national system and the interpretation given by ORG to the right to reasonable length of proceedings , would deprive the said PERSON no . CARDINAL/CARDINAL of any justification and cause the NORP ORG to violate LAW , according to which ' LAW shall secure to everyone within their jurisdiction the rights and freedoms defined in LAW ( including the said LAW , which provides for the right to have a case decided within a reasonable length of time ) .

The reason behind the enactment of PERSON no . PERSON was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings , so as to give effect to the subsidiary character of intervention on the part of ORG , expressly provided for by LAW CARDINAL : “ the ORG may only deal with the matter after all domestic remedies have been exhausted ” ) . The NORP system for the protection of human rights is founded on the said principle of subsidiarity . From it derives the duty of the GPE which have ratified LAW to guarantee to individuals the protection of the rights recognised by LAW , above all in their own internal order and vis - à - vis the organs of the national judicial system . And this protection must be “ effective ” ( LAW ) , that is , of a kind to remedy the claim without the need for recourse to ORG .

The domestic remedy introduced by Law no . CARDINAL/CARDINAL did not previously exist in the NORP system , with the consequence that appeals against GPE in respect of a violation of LAW had “ clogged ” ( the term used by rapporteur PERSON in the sitting of the ORG of DATE ) ORG . ORG observed , prior to LAW no . PERSON , that the said failures to comply on the part of GPE “ reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy . This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention ” ( see the CARDINAL judgments of the ORG delivered on DATE in the cases of PERSON , PERSON , ORG and PERSON ) .

Law no . CARDINAL/CARDINAL constitutes the domestic remedy to which a “ victim of a violation ” ( as defined by LAW CARDINAL ( failure to comply with the reasonable - time requirement ) must have recourse before applying to ORG to claim the “ just satisfaction ” provided for in LAW , which , when the violation exists , is only awarded by the ORG “ if the internal law of ORG concerned allows only partial reparation to be made ” . Law no . CARDINAL/CARDINAL has therefore allowed ORG to declare inadmissible applications lodged with it ( including before the LAW was passed ) and aimed at obtaining just satisfaction provided for in LAW for the excessive length of proceedings ( ORG v. GPE , decision of DATE ) .

This mechanism for implementation of LAW and observance of the principle of subsidiarity in respect of interventions of ORG of GPE does not operate , however , in cases in which the ORG holds that the consequences of the established violation of LAW have not been redressed by domestic law or that this has been done only “ partially ” , because in such an event the said LAW provides for the intervention of ORG to protect the “ victim of the violation ” . In such cases an individual application to ORG on the basis of LAW is admissible ( Scordino and Others v. GPE , decision of DATE ) and the ORG acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law .

The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is , obviously , ORG , whose duty it is to apply LAW of LAW to ascertain whether , in the presence of a violation of a provision of LAW , the internal law has been able to fully redress the consequences of this violation .

The argument whereby , in applying PERSON no . PERSON , the NORP court may follow a different interpretation from that which ORG has given to the provisions of LAW ( violation of which is the fact giving entitlement to the right to compensation attributed by the said national law ) implies that the victim of the violation , if he or she receives reparation at national level considered inadequate by ORG , must obtain the just satisfaction provided for in LAW from the latter Court . This would defeat the purpose of the remedy provided for in NORP law by PERSON no . PERSON and entail a violation of the principle of the subsidiarity of the intervention of ORG .

It is therefore necessary to concur with ORG , which , in the above - mentioned decision on the PERSON application ( concerning the inadequacy of the protection afforded by the NORP courts in implementing LAW no . PERSON ) , affirmed that “ it follows from the principle of subsidiarity ... that the national courts must , where possible , interpret and apply domestic law in accordance with the Convention ” .

... The preparatory documents of PERSON no . PERSON are even more explicit . In the report concerning the bill of Senator PERSON ( proceedings of the ORG no . CARDINAL of DATE ) it is affirmed that the compensatory mechanism proposed in the legislative initiative ( and then adopted by the LAW ) secures for the applicant “ a protection analogous to that which he or she would receive in the international court ” , as the direct reference to LAW makes it possible to transfer to domestic level “ the limits of applicability of the same provision existing at international level , limits which depend essentially on the ORG and on the development of the case - law of the GPE authorities , especially that of ORG , whose decisions must therefore guide ... the domestic court in the definition of these limits ” .

... CARDINAL . – The considerations expounded in sections CARDINAL of the document refer in general to the importance of the interpretative guidance of ORG on the implementation of PERSON no . CARDINAL/CARDINAL with regard to reparation for non - pecuniary damage .

In this particular instance , however , any possibility for the national court to exclude non - pecuniary damage ( despite having found a violation of LAW of ORG ) must be considered as non - existent because such is precluded by the previous decision of ORG which , with reference to the same proceedings , had already ascertained that the unjustified delay in reaching a decision had had consequences involving non - pecuniary damage for the applicant , which the ORG itself redressed for a limited period . From such a decision of ORG it follows that , once the national court has ascertained that the violation has continued in the period following that considered in the said decision , the applicant has continued to suffer non - pecuniary damage , which must be compensated for in application of PERSON no . PERSON .

It can not therefore be maintained DATE as ORG has done DATE that compensation is not due because of the small amounts at stake in the proceedings in question . Such a reason , apart from being rendered immaterial by the fact that ORG has already ruled that non - pecuniary damage had been sustained because of delay in the same action , is in any case incorrect , because the amount of what is at stake in an action in which non - compliance with reasonable time - limits has been ascertained can never have the effect of excluding non - pecuniary damage , given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small ; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it .

CARDINAL – In conclusion the decision appealed against must be quashed and the case remitted to ORG , which , in a different composition , will order payment to the applicant of the non - pecuniary damages payable as a result of the violation of the reasonable - time requirement for the period following DATE alone , taking as a reference point payments of the same kind of damages by ORG , from which it may diverge , but only to a reasonable extent ( ORG , DATE , PERSON GPE ) ” .

ORG held as follows :

“ ... Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no . CARDINAL of DATE [ known as the “ Pinto Act ” ] this shall preclude a right [ to just satisfaction ] from arising and passing to the heirs , in accordance with the general rule that a person who has died can not become entitled to a right conferred by an Act that is passed after their death ... ”

The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from LAW . The mechanism set in place by the NORP standard did not give applicants a cause of action before the domestic courts . Accordingly , the right to “ just satisfaction ” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force . The fact that the deceased had , while alive , lodged an application with ORG was not decisive . LAW did not constitute , as the applicants had maintained , a procedural standard bringing about a transfer of powers from ORG to the domestic courts .

In this case , which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of LAW on account of the length of the proceedings , ORG referred the case to the full court indicating that there was a conflict between the case - law authorities , that is , between the restrictive approach taken by ORG in the earlier judgments regarding heirs and LAW and the CARDINAL judgments delivered by ORG , sitting as a full court , on DATE to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since GPE ratified LAW on DATE .

In the case giving rise to the order mentioned above referring the case to the full court ( see preceding paragraph ) , ORG , sitting as a full court , established the following principles , thus preventing any further conflicting decisions being given by the courts :

( i ) Law no . CARDINAL of CARDINAL DATE , which ratified the LAW and made it enforceable , introduced into domestic legal order the fundamental rights , belonging to the category of rights conferred on the individual by public law , provided for in the first section of the Convention and which correspond to a large extent with those set forth in LAW . In that respect the LAW provisions are confirmatory and illustrative . ...

( ii ) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in LAW , which is immediately applicable in domestic law .

The distinction between the right to a hearing within a reasonable time , introduced by LAW ( or even pre - existing as a constitutionally protected value ) , and the right to equitable reparation , which was allegedly introduced only by LAW , can not be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by ORG , the domestic courts being bound to comply with the case - law of ORG . ...

( iii ) Accordingly , the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no . CARDINAL/CARDINAL must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date , subject only to the condition that the claim has not already been lodged with ORG and the ORG has not ruled on admissibility . ...

This judgment of ORG concerned an appeal by ORG challenging ORG award of non - pecuniary damages to a juristic person . ORG referred to the decision reached in the case of Comingersoll v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV and , after referring to the CARDINAL judgments of the full court delivered on DATE , found that its own case - law was not in line with ORG . It held that there was no legal barrier to awarding just satisfaction to “ juristic ” persons according to the criteria of ORG . Accordingly , since ORG had correctly decided the case the appeal was dismissed .

ORG made the following observations :

“ ... [ Whereas ] non - pecuniary damage is the normal , albeit not automatic , consequence of a breach of the right to a hearing within a reasonable time , it will be deemed to exist , without it being necessary to specifically prove it ( directly or by presumption ) , on the basis of the objective fact of the breach , on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned ( PERSON . ORG CARDINAL DATE nos . CARDINAL and DATE ) .

– the assessment on an equitable basis of compensation for non - pecuniary damage is subject DATE on account of the specific reference in section CARDINAL of Law no . CARDINAL of DATE to LAW ( ratified by PERSON no . CARDINAL of CARDINAL DATE ) DATE to compliance with the Convention , in accordance with the judicial interpretation given by ORG ( non - compliance with which results in a violation of the law ) , and must therefore , as far as possible , be commensurate , in substantive and not merely formal terms , with the amounts paid in similar cases by ORG , it being possible to adduce exceptional circumstances that suggest themselves in the particular case , on condition that they are reasoned , not excessive and not unreasonable ( PERSON . ORG DATE no . CARDINAL ) . ...

– a discrepancy in the method of calculation [ between the ORG 's case - law and LAW ] shall not affect the general vocation of PERSON no . CARDINAL of DATE to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time ( vocation acknowledged by ORG in , inter alia , a decision of DATE in GPE ( application no . CARDINAL/CARDINAL ) ) , and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by GPE when ratifying LAW and the formal recognition , also at constitutional level , of the principle stated in LAW ... ”

In the report ORG , revised on DATE , the Ministers ' deputies made the following indications regarding an assessment of the Pinto remedy :

“ ... CARDINAL . As regards the domestic remedy introduced in DATE by the “ Pinto Act ” , a number of shortcomings remain , particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention : in particular , the law does not provide yet for the acceleration of pending proceedings . ...

In the framework of its examination of the CARDINALst DATE report , ORG expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts . ...

It should be pointed out that in the framework of its examination of DATE report , ORG had noted with concern that the Convention had no direct effect and had consequently invited the NORP authorities to intensify their efforts at national level as well as their contacts with the different bodies of ORG competent in this field . ... ”

In this interim resolution the Ministers ' deputies indicated as follows :

“ ORG

Noting ...

“ ... the setting - up of a domestic remedy providing compensation in cases of excessive length of proceedings , adopted in DATE ( the " Pinto ” law ) , as well as the recent development of the case - law of ORG , increasing the direct effect of the case - law of ORG in the NORP legal system , while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims ;

Stressing that the setting - up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations ;

Finding that despite the efforts undertaken , numerous elements still indicate that the solution to the problem will not be found in the near future ( as evidenced in particular by the statistical data , the new cases before both domestic courts and ORG , the information contained in the annual reports submitted by the government to ORG and in the reports of ORG at the Court of cassation ) ; ...

Stressing the importance the LAW attaches to the right to fair administration of justice in a NORP society and recalling that the problem of the excessive length of judicial proceedings , by reason of its persistence and extent , constitutes a real danger for the respect of the rule of law in GPE ; ...

URGES the NORP authorities to enhance their political commitment and make it their effective priority to meet GPE 's obligation under the ORG and the ORG 's judgments , to secure the right to a fair trial within a reasonable time to all persons under GPE 's jurisdiction . ... ”

ORG for the efficiency of justice was set up at ORG by Resolution Res(CARDINAL)CARDINAL with the aim of ( a ) improving the efficiency and the functioning of the justice of member GPE with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively , thereby generating increased confidence of the citizens in the justice system and ( b ) enabling a better implementation of the international legal instruments of ORG concerning efficiency and fairness of justice .

In its framework programme ( CEPEJ ( DATE ) CARDINAL Rev CARDINAL § ( CARDINAL ) the ORG noted that “ the mechanisms which are limited to compensation are too weak and do not adequately incite the GPE to modify their operational process , and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays . ”


The first and fourth applicants were born in DATE and DATE respectively and are both NORP citizens . Their mother , the second applicant , born in DATE , is a NORP citizen . The third applicant , husband to the second applicant , father of the fourth applicant and step - father to the first applicant , is a NORP citizen , born in DATE . Since DATE the family have returned from GPE to live in GPE in PERSON .

The applicants are represented by ORG , a lawyer working for the FAC in GPE . The facts may be summarised as follows .

A.

B , the second applicant , first entered GPE on DATE having been granted leave to remain as a visitor for DATE . On DATE , B was discovered by an immigration officer to have taken up paid employment in breach of her entry requirements and she was arrested by the immigration authorities . Later that same day LAW to make a deportation order was signed . B lodged an appeal with the Adjudicator .

On DATE , B married F , the first applicant 's father , a NORP citizen whom she had known for DATE . B applied for leave to remain as a spouse and dropped her appeal against the decision to deport . B became pregnant but was forced to leave the matrimonial home due to violence inflicted on her by F , and she moved into a hostel for battered women . On DATE , the first applicant was born . On DATE , B 's application to remain on the basis of her marriage which had broken down was refused . A decree nisi dissolving the marriage was issued in DATE . F contested paternity of the first applicant but the matter was proved by DNA testing . He has retained no contact with his daughter .

On DATE , a deportation order was signed by the Secretary of ORG against B. An application to revoke the order was refused on DATE . Leave to apply for judicial review of this decision was granted and the judicial review hearing took place on CARDINAL DATE . It was held that the Secretary of ORG had failed to take into account the rights of the first applicant , a NORP citizen , when making the decision not to revoke the deportation order . The matter was remitted back to the Secretary of ORG . On DATE , by letter , the Secretary of ORG made a fresh refusal to revoke LAW of DATE . In a letter sent by ORG to B 's solicitors , received on DATE , it was stated :

" The Secretary of ORG has considered the suggested difficulties which [ the first applicant ] might face in GPE and her rights as a NORP citizen and has balanced them against her mother 's breach of the immigration control ... and remains of the view that there are insufficient grounds for revoking the deportation order . "

On DATE , B married the third applicant , a NORP citizen whom she had known for some time . The Secretary of ORG was informed of B 's marriage . In a letter dated DATE , B 's solicitors informed ORG that B was pregnant . This letter apparently crossed in the post with a letter to B 's solicitors dated DATE from ORG which stated :

" [ B 's ] marriage on DATE to a NORP citizen gives her no right to remain in GPE and the Secretary of ORG is not prepared to grant her leave to remain on this basis ... removal directions have been deferred for a period of DATE after which further steps will be taken to effect [ B 's ] removal " .

On DATE , representations were made by B 's Member of ORG ( GPE ) to the Secretary of ORG informing him of B 's pregnancy and the fact that she had developed fibroids which could lead to complications during childbirth , potentially requiring specialised medical supervision .

On DATE , the applicants ' representatives were informed by ORG that no fresh decision had been taken in the light of the information concerning B 's pregnancy . However , that same evening B was served with fresh removal directions for herself and the first applicant to travel to GPE on DATE and was informed by the immigration officers that the directions had been set in full knowledge of the pregnancy . The removal arrangements were however deferred for the Secretary of ORG to consider the representations made by B 's M.P. Shortly afterwards , in a letter dated DATE , the NORP Under Secretary of ORG informed the applicants ' GPE that since medical facilities existed in GPE for B 's condition no grounds existed to justify revoking the deportation order .

On DATE , the fourth applicant was born in GPE . On DATE , B was visited by immigration officers and DATE was served with a notice of variation of restrictions , obliging her to report to a police station on a DATE basis .

In DATE , B , the second applicant , applied for a visa to travel to GPE . While the visa application was still pending before the NORP authorities , removal directions were set by ORG for the second applicant to be returned to GPE on DATE . On DATE , following intervention by the applicants ' representatives before ORG , the removal directions were deferred to allow the second applicant to obtain the visa . The second applicant , as the wife of an ORG national , was granted a visa by the NORP authorities and in DATE all the applicants moved to GPE . For DATE , the third applicant was unsuccessful in his attempts to find employment there . The financial cost of the family 's move to GPE and the expenses incurred by the third applicant , who travelled to work in GPE DATE , left the applicants with very little disposable income . They had limited personal savings . The visa granted to the second applicant to travel to GPE provided no entitlement to social security assistance because the third applicant had failed to find employment there .

In a letter dated DATE the ORG stated in reference to the second applicant being granted a visa to travel to GPE :

" the Secretary of ORG remains of the intention to deport the second applicant to GPE should she fail to embark elsewhere " .

In or around DATE the second applicant gave birth to a third child . At some time before DATE the third applicant obtained employment in GPE at a much lower wage than he was earning in GPE .

In DATE , the applicants applied to return to GPE as , under ORG law , after spending a qualifying period in GPE they could return to GPE . The deportation order against the second applicant was revoked . On DATE , a travel visa was issued and the whole family returned to GPE at DATE . On DATE , the second applicant applied for a GPE residence permit under ORG law and a permit was issued on DATE until DATE .

B. Relevant domestic law and practice

Section CARDINAL(CARDINAL ) of the LAW DATE provides that :

“ A person who is not a NORP citizen shall be liable to deportation from GPE

( a ) if , having only a limited leave to enter or remain , he does not observe a condition attached to the leave or remains beyond the time limited by the leave ... . ”

Section CARDINAL(CARDINAL ) of the LAW provides :

“ A person who is not a NORP citizen shall be guilty of an offence punishable on summary conviction with a fine ... or with imprisonment ... or with both ... ( b ) if , having only a limited leave to enter or remain in GPE , he knowingly ... ( ii ) fails to observe a condition of the leave . ”

Immigration Rules are made pursuant to ORG ) of the LAW . The Immigration Rules HC CARDINAL were applicable in the period DATE .

Paragraph CARDINAL provides :

Paragraph CARDINAL ( which is repeated in the new ORG CARDINAL in force from DATE at § CARDINAL ) states :

“ In considering whether to give effect to a recommendation for deportation ... the Secretary of ORG will take into account every relevant factor known to him , including : age ; length of residence in GPE ; strength of connections with GPE ; personal history , including character , conduct and employment record ; domestic circumstances ; the nature of the offence of which the person is convicted ; previous criminal record ; compassionate circumstances ; any representations received on the applicant ’s behalf . ”

Paragraph CARDINAL provides :

“ PERSON will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation . Full account is to be taken of all the relevant circumstances known to the Secretary of ORG including those listed in paragraph CARDINAL before a decision is reached . ”

The Secretary of ORG has issued guidance to those in his ORG who determine cases involving marriage and children . The guidance is known as GPE . LAW states :

“ As a general rule deportation action under section CARDINAL(CARDINAL)(a ) or section CARDINAL(CARDINAL)(b ) ( in non criminal cases ) , or illegal entry action should not be initiated or pursued where the subject has a genuine and subsisting marriage to a person settled in GPE if :

a ) the marriage predates enforcement action ; and

b ) the marriage has lasted DATE or more or , in the case of a common law relationship ... the couple have cohabited for DATE or more ... . ”


Violation of Art. 10;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

Mr PERSON is a NORP of NORP origin and was born in DATE . He lives in GPE and works as a psychologist .

NORP In DATE he published an anthology of poems in GPE entitled “ The song of a rebellion – Dersim ” ( “ GPE – PERSON NORP ” ) .

On DATE , the public prosecutor at ORG no . CARDINAL ( “ the public prosecutor ” , “ the ORG ” ) accused the applicant and his publisher of disseminating propaganda against the “ indivisible unity of the ORG ” . He requested , inter alia , application of section CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL – see paragraph CARDINAL below ) and the confiscation of the copies of the work concerned ( see paragraph CARDINAL below ) . He relied on the following passages from that anthology in support of his request .

[ Freedom is the law of the clan ]

… a great passion is taking shape in our holy hands – the light of ancient NORP for as long as by the light of day the LOC [ ] is not reddened by our blood we shall not let the whelps of the LOC whore trample upon it after all for DATE we have obeyed the law freedom is the law of the clan .

[ In solitude , they looked at the tombstones ]

The heart of PERSON is torn to pieces its serpentine streets explosions of dynamite the noise of excavators ORG the soldiers’ boots … PERSON a phial of medicine in CARDINAL hand of poison in the other the towers of PERSON in others the NORP are coming with their schools their language in which we know only too well the word for cruelty … PERSON in the corridors of Parliament in the galleries in the garrisons they are preparing genocide like those who know no bounds … PERSON On the head of PERSON [ ] , my brave CARDINAL we have never seen nor heard anything like this I ask you , brother , what Scripture would accept such cruelty ? …

[ Silently , they looked towards the village of ORG ] CARDINAL … PERSON and now cruelty is spreading apace our blood will mix with the blood shed . PERSON resistance and betrayal freedom and surrender side by side … CARDINAL have we not accepted as law for DATE that blood shall be washed in blood ? …

[ In their solitude their tears fell to the ground ] PERSON … CARDINAL of years of disasters have not altered our lives for our GPE for our Dersim we will sacrifice our heads , drunk on the fire of rebellion …

[ In solitude , they oiled the guns and rifles ] CARDINAL … let us go children of the unyielding we have heard there is a rebellion in the mountains can we hear and do nothing ? let the festivities and celebrations begin let flames as high as the rooftops reach for the sky so that before DATE end the cannons fall silent venerable GPE beautiful GPE GPE our friend PERSON …

[ They marched towards the laws to be brothers ] PERSON … PERSON for DATE , companion , we have been the close acquaintance of the most barbaric cruelties I ask you out of love for the age in which you live how much longer will we put up with this cruelty ? PERSON … PERSON to the majestic mountains that will lead us to freedom …

[ Snowy are the mountains ] PERSON … the whelps of the NORP whore repeatedly pound our mountains the waters that run our springtime PERSON … they are preparing genocide like those who know no bounds . CARDINAL … PERSON for DATE , our clan has been under siege in our besieged land QUANTITY …

[ The mountains before us have voices of snow ] PERSON … an unbounded anger in my heart a speechless hatred CARDINAL … the laws do not give way rebellion comes from the mountains the millennia of history some have died for her some march to their deaths .

[ They marched towards solitude ] CARDINAL … those who were ORG but a handful of brave men the hope and resistance of their blessed bodies PERSON they have , piece by piece , adorned freedom PERSON those who , before us , marched to their deaths … CARDINAL Young NORP ‘ I am DATE I die a martyr I join the martyrs of GPE Dersim has been defeated ORG but PERSON and GPE shall live on the young NORP shall take vengeance’ PERSON when life leaves this body my heart shall not cry out What happiness to live DATE to join the martyrs of GPE . …

[ ORG is dead too ] CARDINAL … we have lived DATE without a State , in exile , during massacres for centuries along the paths we have hauled behind us a sword but never have we been conquered by the sword … the venerable Sheikh Alişer of GPE [ ] was brave enough to know how to die for his honour , his homeland and his freedom … PERSON how can I narrate to those who will come after us all that is brave and heroic impregnating my whole body with courage . CARDINAL … I invite you to freedom , to death PERSON in these mountains , in this sacred spring with death we march , freedom is blessed with death , I invite you to die ; DATE time is wounded like the beat of a heart . …

[ Exile ] PERSON … ORG garrison schools kids women … valiant youths songs of revenge PERSON mothers of children hand - to - hand side by side surrender and resistance PERSON and the dignity PERSON and the honour PERSON and the pride of ORG become by the vows of PERSON [ ] of the Ali Haydar Yıldızes of the Hayri Durmuşes of the PERSON little by little drop by drop PERSON a secret rebellion . ”

The applicant denied the charges before ORG , asserting , in particular , that the passage in inverted commas ( see paragraph CARDINAL above ) was a quotation which in no way reflected his own opinions .

NORP On DATE ORG , composed of CARDINAL judges , including a military judge , found the applicant guilty of the offences charged and sentenced him under section CARDINAL(CARDINAL ) of PERSON no . ORG to DATE and CARDINAL months’ imprisonment and a fine of MONEY ( TRL ) , to be paid in DATE instalments . It also ordered confiscation of the publications concerned .

ORG entirely accepted the submissions of the public prosecutor and found , inter alia , that the poems in issue referred to a particular region of GPE as “ NORP ” and had glorified the insurrectionary movements in that region by identifying them with the ORG fight for national independence .

In ORG view , the expression of praise apparent throughout the work amounted to separatist propaganda that was detrimental to the unity of the NORP nation and the territorial integrity of ORG and justified PERSON conviction .

In a judgment of DATE , ORG dismissed an appeal by the applicant . The applicant ’s subsequent application to the same court for rectification of the judgment was also unsuccessful .

On DATE Law no . CARDINAL of DATE came into force . Inter alia , it reduced the length of prison sentences that could be imposed under LAW no . ORG while increasing the level of fines ( see paragraph CARDINAL below ) . In a transitional provision relating to section CARDINAL , PERSON no . CARDINAL provided that sentences imposed pursuant to section CARDINAL of PERSON no . ORG would be automatically reviewed ( see paragraph CARDINAL below ) .

Consequently , ORG reviewed the applicant ’s case on the merits . In a judgment of DATE , it reduced Mr PERSON ’s prison sentence to DATE , DATE and DATE but increased the fine to GPE DATE .

On an appeal by the applicant , ORG upheld that decision on DATE .

PERSON was at that time still serving his sentence in FAC ( GPE ) .

The relevant provisions of LAW read as follows :

“ Where the legislative provisions in force at the time when a crime is committed are different from those of a later law , the provisions most favourable to the offender shall be applied . ”

“ In the event of conviction , the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence … ”

Section CARDINAL of LAW ( Law no . CARDINAL ) provides :

“ For the purposes of the present PERSON , the term ‘ periodicals’ shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .

‘ Publication’ shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . ”

The Prevention of Terrorism Act ( Law no . CARDINAL of DATE ) has been amended by PERSON no . CARDINAL of DATE , which came into force on DATE ( see paragraph CARDINAL below ) . Sections CARDINAL and CARDINAL read as follows :

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY . ”

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years’ imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months’ and not more than two years’ imprisonment and a fine of from CARDINAL MONEY …

“ The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve . ”

However , the provisions of this section shall not apply to convictions pursuant to section CARDINAL . ”

The PERSON of DATE contains a “ transitional provision relating to section CARDINAL ” that applies to the amendments which that law makes to the sentencing provisions ( see paragraph CARDINAL above ) of section CARDINAL of PERSON no . ORG . That transitional provision provides :

“ In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment to … section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL and CARDINAL of Law no . CARDINAL of DATE . ”

The relevant parts of LAW ( Law no . CARDINAL ) read as follows :

“ The term ‘ fine’ shall mean payment to the ORG of a sum fixed within the statutory limits .

If , after service of the order to pay , the convicted person does not pay the fine within the time - limit , he shall be committed to prison for a term of DATE for every MONEY owed , by a decision of the public prosecutor .

The sentence of imprisonment thus substituted for the fine may not exceed DATE … ”

NORP The relevant provisions of LAW concerning the grounds on which defendants may appeal on points of law against judgments of courts of first instance read as follows :

“ An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .

Non - application or erroneous application of a legal rule shall constitute unlawfulness . ”

“ Unlawfulness is deemed to be manifest in the following cases :

CARDINAL- where the court is not established in accordance with the law ;

CARDINAL- where one of the judges who have taken the decision was barred by statute from participating ;

The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) , or of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of PERSON no . PERSON – see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor ’s decision included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence . Other grounds included the fact that the publications in issue had not been distributed , that there had been no unlawful intent , that no offence had been committed or that those responsible could not be identified .

Furthermore , the Government submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty , namely : DATE – CARDINAL – CARDINAL ; DATE ; DATE – DATE CARDINAL CARDINAL ; DATE CARDINAL – DATE – CARDINAL – DATE – CARDINAL ; DATE – CARDINAL – DATE – CARDINAL – CARDINAL – CARDINAL – DATE ; CARDINAL/CARDINAL – CARDINAL – CARDINAL – CARDINAL – DATE CARDINAL DATE CARDINAL – CARDINAL – CARDINAL – CARDINAL – CARDINAL ; DATE – DATE – CARDINAL – CARDINAL – CARDINAL – CARDINAL – CARDINAL – CARDINAL DATE ; DATE CARDINAL – CARDINAL – CARDINAL – CARDINAL – CARDINAL – CARDINAL .

As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases reached their decisions on the ground that there had been no dissemination of “ propaganda ” , CARDINAL of the constituent elements of the offence , or on account of the objective nature of the words used .

The applicant supplied a list of works that had led to prosecutions in ORG together with general information on sentences that had been handed down and proceedings then pending against a number of writers and publishers . He produced , as examples , copies of several judgments against ORG , a writer , and ORG , an editor , who had been convicted notably of inciting the commission of offences and of disseminating pro - NORP propaganda . These were judgments NORP . CARDINAL/CARDINAL ; DATE ; DATE CARDINAL – CARDINAL ; CARDINAL DATE ; MONEY CARDINAL DATE ; DATE – DATE CARDINAL – CARDINAL ; DATE .

ORG were created by PERSON no . DATE of DATE , in accordance with LAW . That law was annulled by ORG on DATE . The courts in question were later reintroduced into the NORP judicial system by LAW . The relevant part of the statement of reasons contains the following passage :

“ There may be acts affecting the existence and stability of a ORG such that when they are committed , special jurisdiction is required in order to give judgment expeditiously and appropriately . For such cases it is necessary to set up ORG . According to a principle inherent in our LAW , it is forbidden to create a special court to give judgment on a specific act after it has been committed . For that reason ORG have been provided for in our LAW to try cases involving the above - mentioned offences . Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence , they may not be described as courts set up to deal with this or that offence after the commission of such an offence . ”

The composition and functioning of ORG are subject to the following rules .

NORP The constitutional provisions governing judicial organisation are worded as follows :

“ In the performance of their duties , judges shall be independent ; they shall give judgment , according to their personal conviction , in accordance with the LAW , statute and the law .

No organ , authority , ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers , or send them circulars or make recommendations or suggestions to them . ”

“ Judges shall not be removed from office or compelled to retire without their consent before the age prescribed by LAW ”

“ ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security .

ORG shall be composed of a president , CARDINAL other regular members , CARDINAL substitute members , a prosecutor and a sufficient number of assistant prosecutors .

The president , CARDINAL of the regular members , CARDINAL of the substitutes and the prosecutor shall be appointed from among judges and public prosecutors of the first rank , according to procedures laid down in special legislation ; CARDINAL regular member and CARDINAL substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges .

Presidents , regular members and substitute members ... of ORG shall be appointed for a renewable period of DATE .

Appeals against decisions of ORG shall lie to ORG .

“ Military legal proceedings

The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts , the safeguards enjoyed by the judiciary and the requirements of military service . Relations between military judges and the commanders under whom they serve in the performance of their non - judicial duties shall also be regulated by law ... ”

Based on LAW , the relevant provisions of LAW no . CARDINAL on ORG , provide :

“ In the capitals of the provinces of … ORG shall be established to try offences against the Republic , whose constituent qualities are enunciated in the LAW , against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security . ”

“ The ORG shall be composed of a president , CARDINAL other regular members and CARDINAL substitute members . ”

“ The president of a ORG , CARDINAL of the [ CARDINAL ] regular members and CARDINAL of the [ CARDINAL ] substitutes ... shall be civilian … judges , the other members , whether regular or substitute , military judges of the first rank … ”

“ The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in ORG .

Except as provided in the present PERSON or other legislation , the president and the regular or substitute members of ORG … may not be appointed to another post or place , without their consent , within DATE …

If , after an investigation concerning the president or a regular or substitute member of a ORG conducted according to the legislation concerning them , competent committees or authorities decide to change the duty station of the person concerned , the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation . ”

“ ORG shall have jurisdiction to try persons charged with

( d ) NORP offences having a connection with the events which made it necessary to declare a state of emergency , in regions where a state of emergency has been declared in accordance with LAW ,

( e ) NORP offences committed against the Republic , whose constituent qualities are enunciated in the LAW , against the indivisible unity of the State – meaning both the national territory and its people DATE or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security .

“ ORG shall hear appeals against the judgments of ORG . ”

“ The rules governing the rights and obligations of … military judges appointed to ORG and their supervision … , the institution of disciplinary proceedings against them , the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession …

The observations of ORG on military judges , the assessment reports on them drawn up by ORG assessors … and the files on any investigations conducted in respect of them … shall be transmitted to ORG . ”

“ A ORG may be transformed into LAW , under the conditions set forth below , where a state of emergency has been declared in all or part of the territory in respect of which ORG concerned has jurisdiction , provided that within that territory there is CARDINAL ORG ”

The relevant provisions of ORG are worded as follows :

“ The aptitude of military judges … appointed as regular or substitute members of ORG that is required for promotion or advancement in salary step , rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below , subject to the provisions of the present PERSON and ORG ( Law no . CARDINAL ) .

( a ) The first superior competent to carry out assessment and draw up assessment reports for military judges , whether regular or substitute members … shall be the Minister of State in ORG , followed by PERSON .

“ Members … of ORG belonging to ORG … shall be appointed by a committee composed of the personnel director and the legal adviser of ORG , the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and ORG at ORG … ”

“ Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval , in accordance with the provisions on the appointment and transfer of members of the armed forces …

The procedure for appointment as a military judge shall take into account the opinion of ORG , the reports by ORG assessors and the assessment reports drawn up by the superiors … ”

“ The rules governing the salary scales , salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers . ”

“ The Minister of Defence may apply to military judges , after considering their defence submissions , the following disciplinary sanctions :

A. A warning , which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties .

B. A reprimand , which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy .

The said sanctions shall be final , mentioned in the assessment record of the person concerned and entered in his personal file … ”

“ When military judges … sit in court they shall wear the special dress of their civilian counterparts … ”

Article CARDINAL of LAW of CARDINAL DATE provides :

“ It shall be an offence , punishable by DATE imprisonment , to abuse one ’s authority as a civil servant in order to influence the military courts . ”

Under LAW of PERSON no . CARDINAL ORG has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers , particularly those concerning their professional advancement .


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

On DATE affiliation proceedings were brought in respect of the applicant before the then ORG .

On DATE the ORG quashed the first instance judgment delivered on DATE .

The Košice II District Court , to which the case fell to be examined , experienced difficulties in obtaining the evidence . This was mainly due to the fact that the person who was supposed to be the applicant ’s father was a NORP national and that he had refused to co - operate with the court .

On DATE ORG found , in proceedings under LAW ) of the LAW , that the Košice II ORG had violated the applicant ’s constitutional right to have the case examined without undue delays .

On DATE the ORG dismissed the action . On DATE ORG quashed the judgment and sent the case back to the first instance court .

On DATE the ORG delivered a new judgment by which it dismissed the action . On DATE the applicant appealed .

On DATE ORG overturned the first instance judgment in that it found that the defendant was the applicant ’s father . As to the remainder of the action including the maintenance and the court fee , ORG quashed ORG judgment and sent the case back to the latter .

On DATE the defendant filed an appeal on points of law .

The proceedings are pending .

Article CARDINAL ( CARDINAL ) of the LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Pursuant to LAW , as in force until DATE , ORG could commence proceedings upon the petition ( “ podnet ” ) presented by any individual or a corporation claiming that their rights have been violated .

According to its case - law under the former LAW ) of LAW , the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights under LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found . In ORG view , it was therefore for the authority concerned to provide redress to the person whose rights were violated .

As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW . Under this provision ORG has the power , in case that it founds a violation of LAW ) of the LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional right was violated as a result of excessive length of proceedings ( for further details see , e.g. , ORG and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , DATE ) .

According to an explanatory letter by the President of ORG of DATE , nothing has prevented ORG from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before ORG provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed . The letter further states that where ORG earlier found a violation of LAW ) of the LAW , a further complaint about delays in the same proceedings can be entertained only to the extent that it relates to the period after the delivery of the first finding of ORG . However , when deciding on such cases ORG will , as a rule , take into account that the ordinary courts have failed to proceed with the case without undue delays following its finding of a violation of LAW ) of LAW .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

NORP The applicant , LOC , is a NORP national who was born in DATE and lives in Rīga . She was represented before the Court by Ms PERSON Paulovska , a lawyer practising in Rīga . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

The relevant historical background has been described in detail in paragraphs CARDINAL to CARDINAL of the ORG ’s decision in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) .

NORP In addition , it should be noted in the present case that from DATE the applicant lived in an apartment in the building located at CARDINAL Pastendas Street , under a lease agreement concluded under NORP law . On DATE , following the restoration of GPE ’s independence , the building was denationalised and returned to its former owners .

On DATE the applicant concluded a new lease for DATE . It appears that the lease was extended DATE until DATE . In the meantime , according to the applicant , the owners failed to maintain the building , in breach of the lease agreement .

It appears that , after the expiry of the DATE non - eviction period ( see PERSON , cited above , § CARDINAL ) , the owners initiated eviction proceedings before the civil courts ( see , by contrast , PERSON , cited above , § LAW ) .

On DATE the Rīga City Zemgale District Court ( Rīgas pilsētas PERSON priekšpilsētas tiesa ) ordered the eviction of the applicant and her minor daughter from the apartment without allocating them another place of residence . The applicant appealed against the judgment .

On DATE ORG ( PERSON apgabaltiesa ) upheld that judgment and confirmed that the applicant and her daughter were to be evicted from the apartment and that no other place of residence was to be allocated to them . The regional court ’s judgment took effect on DATE . The applicant lodged an appeal on points of law , in vain .

On an unspecified date , the applicant and her daughter were evicted from the apartment .

In DATE the applicant approached the local municipality with a view to receiving its assistance on matters relating to apartments . It appears that her application was examined DATE : on DATE ORG entered the applicant ’s family ( the applicant and her minor daughter ) in the register for receiving municipal assistance in the allocation of a place of residence ( for rent ) . The applicant ’s family were entered in the third group of the register , based on the fact that the apartment in which they were living was not suitable for permanent residence .

On DATE a new law on assistance concerning issues relating to apartments took effect ( see paragraph CARDINAL below ) . The applicant ’s family were now entered in register no . CARDINAL , keeping their initial registration date .

On DATE the applicant was granted the status of a low - income person . This was subsequently extended until DATE .

On DATE the applicant ’s family were entered in register no . CARDINAL for priority treatment in receiving municipal assistance in the allocation of a place of residence ( for rent ) , keeping their initial registration date . Register no . CARDINAL was designed to include persons in need of the municipality ’s assistance who had low - income status , were tenants in denationalised buildings and did not have any other place of residence . The applicant ’s family appear to have been at the top of that list on account of their initial registration date .

On DATE , having received a phone call from the municipality , the applicant went to its offices to deal with the necessary formalities for receiving a lease offer , which , as it later transpired , had been issued for her . An official of the municipality required the applicant to submit the information regarding the proceedings for her eviction ( see paragraphs CARDINAL to CARDINAL above ) . Having received the information , the official noted that all available lease offers had already been issued and that the applicant had to continue waiting for an offer .

On DATE , following an enquiry by the applicant , the municipality informed her that there was no basis on which to offer her a lease , because the eviction proceedings had resulted in a judgment against her and she no longer had a right to reside in the apartment in question . It was noted , however , that should the applicant ’s appeal on points of law be upheld and the judgment of CARDINAL DATE ( see paragraph CARDINAL above ) be reversed , the municipality would consider that she retained the right to reside in the apartment and she would be offered a lease .

On DATE the applicant was informed that she and her daughter would be struck off register no . CARDINAL since she no longer satisfied the applicable criteria . She was invited to submit any objections within DATE . The applicant was also informed that she could submit documents to be entered in register no . CARDINAL for priority treatment in receiving municipal assistance in the allocation of a place of residence ( for rent ) . Register no . CARDINAL was designed to include persons who had been evicted from their place of residence . It appears that the applicant did not submit any response to the authorities on these issues .

On DATE the competent commission decided to strike the applicant ’s family off register no . CARDINAL because the applicant ’s lease in a denationalised building had been terminated on DATE . The decision contained a reference to the effect that the applicant could submit a complaint with the municipality against that decision within DATE .

On DATE the applicant lodged a complaint against the decision . On DATE her complaint was rejected and she was informed that she could lodge an appeal with the administrative courts within DATE . She did not exercise that right .

On DATE the applicant complained to the municipality that her complaint of CARDINAL DATE had not been examined , adding that she had been called on an unspecified date to participate in a meeting with the municipality but had not understood the purpose of that meeting .

On DATE the applicant received a reply to her complaint of CARDINAL DATE . It was explained that her complaint against the decision of DATE had been rejected on DATE and that she could lodge an appeal with the administrative courts within DATE . The system of registers and their scope was also explained and the applicant was informed that her family could be eligible for inclusion in register no . CARDINAL for priority treatment . She was encouraged to contact the competent division in the municipality and was given the relevant contact details . The applicant did not proceed as suggested .

On DATE the applicant lodged a complaint with ORG about an action of a public authority ( faktiskā rīcība ) . On DATE ORG rejected the applicant ’s complaint .

On DATE the applicant brought proceedings in ORG ( ORG rajona tiesa ) , asking it to compel ORG to issue a favourable administrative act ( labvēlīgs administratīvs akts ) and conclude a lease with her .

On DATE the district court partly ruled in the applicant ’s favour . On the one hand , the district court concluded that an action of a public authority – namely the municipality ’s refusal to offer a lease to the applicant – had been unlawful . On the other hand , the district court did not compel the municipality to issue a favourable administrative act or to conclude a lease with the applicant .

As concerns the action of a public authority , the district court noted that the parties did not dispute that on DATE the applicant ’s family had been entered in register no . CARDINAL , that the applicant ’s turn had come to receive the municipality ’s assistance and that CARDINAL apartment was available for lease . It was the municipality ’s duty under domestic law to offer every available apartment to the applicant . The district court ruled that the applicant had a right to request that a certain action be taken , that is , that a lease offer be given to her . The responsible official did not have the right to refuse to make such an offer as on DATE the applicant ’s entry in register no . CARDINAL had still been effective .

As regards the applicant ’s request to compel the municipality to issue a favourable administrative act and to conclude a lease , the district court held that it could not compel the municipality to issue such an act before it had offered a lease and the applicant had accepted it .

The municipality appealed against the district court ’s ruling in so far as it concerned the action of a public authority . The applicant did not lodge an appeal . Thus , the district court ’s ruling regarding the request for a favourable administrative act and a lease offer remained uncontested .

On CARDINAL DATE ORG ( NORP apgabaltiesa ) upheld the district court ’s ruling . The regional court found that , in fact , on DATE the municipality had already prepared a lease offer and that the official had not handed it over to the applicant on that date . Under domestic law , only a special commission had the necessary powers to strike the applicant ’s family off register no . CARDINAL . Since this had not been done on DATE , the applicant had not lost the right to receive municipal assistance .

NORP The regional court concluded that an action of a public authority – namely the refusal to issue a lease offer – had been unlawful . As the applicant had not contested the district court ’s finding concerning the request for a favourable administrative act and a lease offer , the regional court and later also the ORG of ORG , did not rule on this issue .

On DATE , following an appeal on points of law by the municipality , ORG of the ORG of ORG ( PERSON tiesas ORG lietu departaments ) fully concurred with the regional court ’s reasoning . The municipality argued before ORG that the applicant had lost the right to reside in the apartment on the grounds of the judgment of DATE and , accordingly , the issuance of a lease offer would not be effective in the circumstances . ORG agreed that with the judgment of CARDINAL DATE the applicant ’s family had lost the right to reside in the apartment . However , only the competent commission could have examined the situation and decided whether or not to strike the applicant ’s family off the register . Since on DATE such a decision had not been taken , the applicant had not lost the right to receive the municipality ’s assistance in resolving the issue of her apartment . ORG thereby upheld the lower court ’s judgment .

Under LAW ( PERSON ) , everyone has a right to receive commensurate compensation if his or her rights have been violated .

Under LAW ( Administratīvā procesa likums ) , in force since DATE , everyone has the right to receive commensurate compensation for pecuniary and non - pecuniary damage caused by an administrative act or action of a public authority .

Under section CARDINAL of the same PERSON , a claim for compensation can be submitted either together with an application to the administrative courts to declare an administrative act or action of a public authority unlawful , or to the public authority concerned following a judgment adopted in such proceedings .

The amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or an unlawful action of a public authority is prescribed by LAW caused by ORG ( NORP pārvaldes iestāžu nodarīto zaudējumu atlīdzināšanas likums ) , in force since DATE . LAW of the PERSON provides for the procedure to follow when an individual claims damages from a public authority . Under section CARDINAL , an individual is entitled to lodge an application with the public authority that was responsible for the damage . Pursuant to section CARDINAL , such an application must be lodged not later than within DATE of the date when the individual became aware of the damage and , in any event , not DATE after the date of the unlawful administrative act or unlawful action of a public authority .

On DATE the Law on Assistance Concerning Apartment Matters ( likums “ ORG palīdzību dzīvokļa jautājumu risināšanā ” ) took effect . Several types of assistance are available CARDINAL of the PERSON , including the possibility of leasing a place of residence from a local municipality . Under section CARDINAL , the municipality is entitled to offer assistance in order of priority to tenants living in denationalised buildings . It is left to the municipality to determine the criteria and the procedure for such assistance . LAW provides that the municipality is to offer a lease in writing and that the individual concerned has a certain time - limit for accepting the offer .

ORG , the biggest municipality in GPE , has adopted several regulations on these issues . In the present case , regulations nos . CARDINAL , DATE and CARDINAL are relevant . Under regulations no . CARDINAL , in force from DATE to CARDINAL DATE , individuals with low - income status residing in a denationalised building were entitled to be entered in register no . CARDINAL for priority treatment in receiving the municipality ’s assistance in the allocation of a place of residence ( for rent ) , if they did not have any other place of residence ( Article CARDINAL ) . The decision as to whether or not an individual was entitled to receive the municipality ’s assistance , or to be included in or struck off any of the registers , was to be taken by a special commission ( Article CARDINAL ) .

Under regulations no . DATE , in force from DATE to DATE , the relevant provisions remained the same as in regulations no . CARDINAL .

From DATE to CARDINAL DATE regulations no . CARDINAL were in force . These regulations laid down clearer provisions governing the different registers , eligibility criteria and the order of priority . Similarly to the previous regulations no . CARDINAL and DATE , they provided that the decision to strike a person off any of the registers should be taken by a special commission ( LAW .


Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

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

Around TIME on DATE someone rang the door bell of the applicants’ apartment . At that time inside the apartment were the first , second and third applicants and the second applicant ’s mother , Mrs. PERSON .

PERSON . opened the door , following which a group of several masked police officers went in and arrested the first applicant .

Subsequently , it was established that the police officers were from ORG ( “ the ORG ” ) of ORG and were conducting an operation to investigate individuals suspected of the forging of banknotes .

The applicants alleged that the police officers had kicked and beaten the first applicant and threatened the second and third applicants with a gun , shouting that they would kill everybody . The Government disputed these allegations .

After the first applicant was arrested and handcuffed , PERSON , an officer from the ORG , arrived at the scene .

At TIME the applicants’ lawyer , Mr GPE , and a colleague of his , Mr PERSON , also went to the applicants’ apartment but were apparently refused access .

At TIME Mr M.M. , an investigator from ORG ( “ the BRIS ” ) arrived at the scene in order to carry out a search of the applicants’ apartment . The first and second applicants and CARDINAL certifying witnesses ( поемни лица ) were present during the search . At TIME a prosecutor from the appellate public prosecutor ’s office and the director of the ORG also arrived .

The search ended TIME

NORP Immediately after that the police officers took the first applicant to the BRIS where he was charged with aiding and abetting the forging of banknotes and with an attempt to put forged banknotes into circulation . He was remanded in custody .

On DATE the prison doctor examined the first applicant and noted in the medical register of detained persons ( aмбулаторен дневник ) that the applicant was healthy . He did not make a note of any bruises or injuries on the applicant ’s body . The first applicant was again examined by the prison doctor on DATE , DATE and DATE and DATE in connection with hypertonic crisis , for which he was prescribed medication . It appears that on DATE an unspecified part of the first applicant ’s body was bandaged . It is not clear why this was done .

On DATE the first applicant was examined by specialists from a civilian hospital ( see paragraph CARDINAL below ) .

On DATE the first applicant filed an application with the prison authorities stating that during his arrest on CARDINAL DATE he had been beaten by police officers and had not been feeling well since then ; in particular , he was suffering from headaches , dizziness and pain in the ears . He requested a medical examination by civilian doctors .

The request was granted , following which on DATE the first applicant was examined in a civilian hospital . The doctors concluded that he was suffering from high blood pressure . The doctors did not note any bruises or injuries on his body .

Meanwhile , on DATE the second applicant lodged a complaint about the incident with the NORP regional military prosecutor ’s office . She stated that at TIME on DATE someone had rung the doorbell of the applicants’ apartment . PERSON . , who had also been residing there , had opened the door and a group of masked police officers had rushed in . The first applicant had come out into the corridor , where he had been knocked down by the police officers . The second applicant had heard shouts and screaming . She had come out into the corridor and had seen that the first applicant was lying on the floor while the police officers were punching and kicking him . The third applicant , DATE at the time , was screaming . CARDINAL of the police officers had pointed a gun at the second and third applicants and shouted : “ Shut up or I will shoot you ! Take this child away from here ! Make her shut up ! ” The police officer had blue eyes and a blond moustache . PERSON . had started screaming and a female police officer with blond hair and blue eyes had threatened to beat her up .

NORP The complaint was received on DATE and on an unspecified date thereafter an investigation was opened .

During the investigation Mr GPE and officers from the detention centre were questioned , the case file of the criminal proceedings against the first applicant was examined and information about the relevant entries in the medical register of the detained persons was gathered . There is no evidence that other ORG officials who had been present when the incident took place were questioned . None of the police officers who had entered the applicants’ apartment and effected the first applicant ’s arrest was ever interviewed . Neither the applicants , nor any independent witnesses appear to have been questioned .

In a statement given in the course of the investigation , PERSON , the investigator with the BRIS , stated that , following orders to carry out a search in the applicants’ apartment , he had arrived there at TIME The front door of the apartment had been open . Inside the apartment Mr M.M. had seen the first applicant , who was handcuffed and was being guarded by CARDINAL or QUANTITY police officers . CARDINAL other police officers , CARDINAL certifying witnesses and the second applicant were present . Mr PERSON had not seen the second applicant ’s mother , or the third applicant . Nor had he seen signs of a fight or violence in the apartment or on the first applicant ’s face , body or clothes . The first and second applicants had not complained about any ill - treatment . At TIME a prosecutor from the appellate public prosecutor ’s office and the director of the PERSON had arrived at the scene .

In an order of CARDINAL DATE a prosecutor from the NORP regional military prosecutor ’s office refused to open criminal proceedings ( предварително производство ) , noting that the police officers had been carrying out a special operation for the arrest of members of an organised criminal group and that there was no evidence that the police officers had used unnecessary force and threats against the applicants .

The second applicant appealed , requesting , inter alia , the questioning of PERSON . and a neighbour , PERSON , who had allegedly witnessed the incident , the examination of the register for detained persons , where , according to her , the first applicant ’s bruises had been noted , and the commissioning of medical expert opinions . She submitted medical documents dated DATE , CARDINAL DATE and CARDINAL May DATE proving that she , her son and daughter , the third applicant , were suffering from stress disorders .

The prosecutor from the NORP regional military prosecutor ’s office dealing with the case forwarded the appeal to the GPE military appellate prosecutor ’s office and prepared a report on its merits . In this report , dated DATE and addressed to the appellate prosecutor ’s office , he proposed that the appeal be dismissed and the criminal proceedings discontinued for lack of sufficient evidence .

NORP In particular , he considered that the medical documents concerning the stress disorder of the second and third applicants could not be regarded as evidence of ill - treatment and did not prove that a causal link between their condition and the events of CARDINAL DATE existed . He also noted that the allegations that the first applicant had been beaten had not been proved because , first , the applicants had not complained about ill - treatment before the investigators or the prosecutor present during the search and , second , on DATE the prison doctor had noted in the medical register that the first applicant had been healthy . As to the request for the questioning of witnesses , the prosecutor considered that PERSON . ’s testimony would not contribute to the establishment of the true facts and that there was no indication that PERSON had witnessed the events . He also considered that the applicants had not substantiated the relevance of the copy of the register of detained persons and , therefore , this request should be rejected .

On DATE a prosecutor from the GPE military appellate prosecutor ’s office upheld the refusal to open a preliminary investigation . He noted , without specifying any further details , that during the first applicant ’s arrest the police officers had used physical force and other means of restraint ( помощни средства ) . Nevertheless , he found that there was insufficient evidence of an offence .

The second applicant appealed further .

On DATE a prosecutor from ORG held that the police officers had indeed imposed some restrictions on the applicants , such as to forbid contact between them and restrict their free movement . These restrictions , however , had been necessary in order to carry out the search . The applicants had not complained about the alleged ill - treatment to the prosecutor or to the investigators who had been present at the search but had instead lodged their official complaint DATE after the incident . He found that no excess of power or evidence of an offence had been established and therefore refused to open criminal proceedings . In respect of the complaints about the alleged ill - treatment of the first applicant , the prosecutor rejected the appeal without examining its merits as it had not been lodged by the first applicant himself .

The first and second applicants appealed to ORG .

On DATE a prosecutor from ORG refused to open criminal proceedings on account of a lack of sufficient evidence of an offence .

At a hearing on DATE , held in the course of the criminal proceedings against the first applicant , PERSON , an officer from the ORG who had been present at the incident , stated that by the time she had arrived at the scene , other police officers had already arrested the first applicant , who at the moment of her arrival had been lying on the floor while being handcuffed . Thereafter , the police officers had lifted him from the floor and let him sit down . She contended that she had not seen any of the police officers hit the first applicant ; nor had she noticed bruises or injuries on him . She had not been aware of the allegations that injuries on the first applicant ’s body had been noted in the register for detained persons . It appears that these statements were made in connection with contentions made by the first applicant in the course of the criminal proceedings against him that he had been ill - treated during his arrest on DATE .

On DATE , another officer from the ORG , PERSON , testified before the trial court . His testimony did not concern the events of DATE .

On DATE the applicant was remanded in custody on suspicion of aiding and abetting the forgery of banknotes and of attempting to put forged banknotes into circulation .

On DATE he was released on bail .

By a judgment of CARDINAL DATE the NORP Regional Curt found the first applicant guilty as charged . It sentenced him to CARDINAL years’ imprisonment and confiscated the mobile phone he had used for arranging meetings with accomplices and potential clients .

The first applicant appealed , claiming , inter alia , procedural breaches , including the refusal of the domestic court to provide him with a translation of a fax from the GPE secret services which had allegedly been admitted as evidence and mentioned in the judgment . ORG dismissed this request at a hearing on DATE , finding that the fax had not been included as evidence in the case file .

On DATE ORG upheld the previous court ’s judgment , finding no procedural breaches .

The first applicant , who had been legally represented throughout the proceedings , appealed further .

By a final judgement of CARDINAL DATE , ORG acquitted him on the charges of attempting to put forged banknotes into circulation and therefore did not examine his arguments in connection with these charges . It upheld the conviction on the remainder of the charges and the sentence .

The applicant submits that he became aware of the final judgment only on DATE , when the case file was returned to ORG and placed at his disposal at the court ’s registry .

Section CARDINAL of ORG , in force until DATE , provided that police officers may use force when performing their duties only if they had no alternative course of action in cases of , inter alia , resistance or refusal to obey a lawful order , arrest of an offender who did not obey or resisted a police officer , and attacks against citizens and police officers . Pursuant to section GPE ) , the use of force had to be commensurate with , in particular , the specific circumstances and the personality of the offender . Section CARDINAL(CARDINAL ) imposed a duty on police officers to protect , wherever possible , the health of the persons against whom force was being used . Section CARDINAL(CARDINAL ) forbade the use of physical force against minors .

Article CARDINALa of LAW provides that causing harm to a person while arresting them for an offence is not punishable where no other means of effecting the arrest exists and the force used is necessary and lawful . The force used will not be considered “ necessary ” where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary .

Instruction no . I-CARDINAL/CARDINAL of DATE , in force DATE , governed the procedures for detention in custody . LAW provided that in the performance of their duties the police organs were under an obligation to respect detainees’ human rights in accordance with LAW and LAW Section CARDINAL of the ORG provided that when performing their duties police officers may use force only in accordance with the provisions of ORG . Acts of inhuman or degrading treatment , torture or discrimination were strictly forbidden ( section CARDINAL ) . If a police officer witnessed such an act , he or she was under an obligation to prevent its continuation and to inform his or her superior ( section CARDINAL ) .

Section CARDINAL(CARDINAL ) of ORG of DATE provided that the identity of members of the Specialised Anti - terrorism ORG could not be disclosed . At the material time there were no such provisions in place in respect of members of the ORG or other police officers .

The new Ministry of the Interior Act , in force from CARDINAL DATE , provides that the identity of police officers whose duties include taking part in operations aimed at liberating hostages and/or neutralising or arresting persons suspected of having committed particularly dangerous offences must not be revealed ( section CARDINAL(CARDINAL ) ) . The Regulations for the LAW ’s implementation provide that the identity of the members of ORG , whose duties include carrying out operations under LAW , can not be disclosed ( section PERSON ) , later superseded by CARDINAL т ( CARDINAL ) ) .

Pursuant to Articles CARDINAL , CARDINAL and CARDINAL of LAW , causing minor , moderate or severe bodily harm to another person is a criminal offence . LAW ( CARDINAL ) provides that if the injury is caused by a police officer in the course of , or in connection with , the performance of his or her duties , the offence is an aggravated one . This offence is a publicly prosecutable CARDINAL . With the exception of threats ( LAW law does not provide for the criminalisation as such of acts giving rise to psychological suffering .

Persons claiming that they have been ill - treated by police officers can seek damages under the ORG and ORG ( “ the ORG ” ) of DATE . The remedy is described in more detail in the ORG ’s judgment in the case of NORP v. GPE ( no . CARDINAL , § § DATE , DATE ) .