Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Respondent State to take individual measures (Article 46 - Pilot judgment;Individual measures);Just satisfaction reserved

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

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . He is a police officer .

According to ORG , the local public administration is obliged to provide police officers with social housing ( see the Domestic Law part below ) .

On an unspecified date the applicant instituted civil proceedings against ORG and on DATE ORG ordered the defendant to provide the applicant with accommodation . The judgment became final and enforceable ; however , it has not been enforced to date .

The applicants , PERSON , PERSON and PERSON are a family of NORP nationals who were born in DATE and DATE respectively and live in GPE .

DATE the first applicant was a judge . By a final judgment of DATE of ORG , ORG was ordered to provide the applicants with housing in accordance with the provisions of the PERSON on the Status of Judges .

Since the judgment was not enforced , on DATE , the applicants applied for a change in the manner of enforcement of the judgment .

On DATE ORG ordered ORG to pay the applicants the value of the apartment , namely MONEY ( ORG ) .

The judgment of DATE has not been enforced to date .

Together with her CARDINAL children and a nephew , the applicant lived in an apartment measuring QUANTITY , which was part of a bigger house .

On an unspecified date , a third party instituted proceedings against ORG for the restitution of the house in which the applicant ’s apartment was located , in accordance with PERSON No . CARDINAL “ on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime ” .

On DATE ORG found in favour of the third party and ordered the eviction of the applicant from her apartment . At the same time , in accordance with the provisions of the same law , the court ordered ORG to provide the applicant with alternative accommodation in accordance with the provisions of LAW . According to the latter provisions , each member of the applicant ’s family had the right to accommodation of QUANTITY .

The judgment of CARDINAL DATE has not been enforced to date .

The applicant , Mr Simion Racu , is a NORP national who was born in DATE and lives in PERSON .

The applicant is an internally displaced person . After the DATE war he fled GPE and settled in PERSON .

On DATE the Government of GPE Decision no . CARDINAL “ on housing for persons forced to quit their houses in the eastern region of GPE ” .

On an unspecified date the applicant instituted proceedings against the Government and the PERSON local authorities seeking housing .

By a final judgment of DATE ORG ordered the Government and ORG to provide the applicant with an apartment .

It appears that enforcement proceedings were conducted against ORG only ; however , the judgment has not been enforced to date .

NORP The relevant provisions of Law no . CARDINAL on administrative decentralisation read as follows :

( CARDINAL ) The public local authorities enjoy , within the limits of the law , financial autonomy . They shall adopt their own budgets which shall be independent and separate from the budget of the ORG .

( CARDINAL ) The public local authorities shall have their own distinct patrimony , which shall include movable and immovable goods . They shall dispose freely of it under the conditions provided for by law .

( CARDINAL ) The patrimony of the territorial - administrative units shall be delimited and separated from that of the ORG , according to the law .

( CARDINAL ) The delimitation presupposes ... exclusive decisional competence of the territorial - administrative units in respect of the administration of the patrimony ... ”

Law no . CARDINAL on ORG , in so far as relevant , provides as follows :

Police officers must be provided with housing by the local administrative authorities after DATE of employment ... ”

The relevant part of PERSON no . Nr . CARDINAL on the status of judges provides :

( CARDINAL ) If a judge has no accommodation or if he needs an improvement to be made to his accommodation , or if he has not been provided with QUANTITY , the local administrative authority is obliged to provide the judge with housing within DATE from the moment when the above circumstances arise ...

( CARDINAL ) After DATE of service the accommodation provided to a judge shall be transferred into his ownership . ”

The relevant part of PERSON no . CARDINAL on the rehabilitation of victims of political repression provides :

Any citizen of GPE who has been the subject of political repression and subsequently rehabilitated , shall have returned to him , at his request or at the request of his heirs , any property which was confiscated , nationalised or taken away from him in some other way .

The persons who have to be evicted from the houses restored to their owners shall be provided with accommodation by the local administration authorities ... at the time of eviction , in accordance with the legislation in force . ”

The relevant provisions of the ORG ’s decision no . CARDINAL concerning housing for citizens forced to leave their houses in the eastern region of GPE read as follows :

The families of citizens forced to leave their houses in the eastern region of GPE [ GPE ] as a result of the military actions for the safeguarding of the independence and integrity of GPE or as a result of their political activity directed against separatism ... shall be provided with housing in accordance with the housing legislation in force .

The relevant parts of PERSON no . CARDINAL , LAW , read as follows :

( CARDINAL ) If a prosecutor has no accommodation or if he needs an improvement in his accommodation , the local administrative authority shall be obliged to provide him or her with housing within DATE of the date of his or her appointment ... ”

According to section CARDINAL ( CARDINAL ) of ORG military personnel are entitled to free housing provided by ORG . However , it appears from a judgment of ORG of DATE in the case of ORG v. ORG that it was the PERSON local authorities which were obliged to provide the plaintiff with a CARDINAL - roomed apartment .

After the communication of the present cases to the respondent Government , ORG prepared a draft law amending CARDINAL acts providing for social housing privileges to QUANTITY categories of persons . It appears that the proposed amendments provided for the total annulment of social housing privileges in GPE . The draft law was sent to different branches of the Government for approval on DATE . The ORG has no information as to what happened to the proposed draft law after DATE .

LAW reads , in so far as relevant :

Local authorities shall be entitled , within national economic policy , to adequate financial resources of their own , of which they may dispose freely within the framework of their powers .

Local authorities’ financial resources shall be commensurate with the responsibilities provided for by the constitution and the law . ”

On DATE and DATE ORG organised a Round Table on “ Non - enforcement of domestic courts decisions in member states : general measures to comply with ORG judgments ” . In a document containing the conclusions of the round table , the participants expressed the following views :

“ As regards the legal and regulatory framework preventing non - execution :

ensuring a coherent legal framework and/or coherent practices for the control and restitution of property respecting the requirements of the ORG ;

improving budgetary planning , notably by ensuring the compatibility between the budgetary laws and the ORG ’s payment obligations ;

proper control over the use of the budgetary funds by the authorities responsible for payments ;

providing for specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations ;

setting up , where appropriate , a special fund or special reserve budgetary lines , to ensure timely compliance with judicial decisions , with a subsequent possibility of recovering from the debtor the relevant sums together with default interest ;

ensuring the ORG effective access to execution proceedings by clearly identifying the authority responsible for execution and simplifying the requirements to be fulfilled by the execution documents ;

As regards domestic remedies in case of non - execution :

introducing , either in budgetary laws and in other laws , a general obligation to automatically compensate for delays in execution of judicial decisions through appropriate default interest at a reasonable rate ( e.g. in line with ORG marginal lending rate ) ;

ensuring effective civil liability of the ORG for damages arising from the non - execution of domestic judicial decisions , which are not compensated by the default interest and providing , in appropriate cases , for the possibility of recovering awards made from the state agents responsible ;

guaranteeing the existence of effective procedures capable of accelerating the execution process leading to full compliance with the judicial decision ;

providing for increased recourse to money penalties , where appropriate , the automatic increase of those money penalties as the authority concerned continues to delay execution ;

improving the personal responsibility of state agents in case of deliberate non - execution through efficient penalties or fines ;

further developing central procedures for the freezing of accounts held by debtor authorities in order to secure the honouring of payment obligations , including the possibility of freezing also the accounts of authorities subordinate to the debtor ’s authority ;

setting up or improving procedures and regulations allowing the seizure of state assets which are manifestly not necessary for the fulfilment of the missions of the authorities concerned and , where appropriate , drawing up necessary inventories ;

providing the bailiffs with sufficient means and powers so as to allow them to properly ensure , where appropriate , the enforcement of judicial decisions ;

strengthening the individual responsibility ( disciplinary , administrative and criminal where appropriate ) of decision makers in case of abusive non - execution and providing the responsible state authorities with the necessary powers to that effect ... ”

Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on the improvement of domestic remedies ( adopted by ORG on DATE at its CARDINALth Session ) , in so far as relevant , reads as follows :

“ Remedies following a “ pilot ” judgment

When a judgment which points to structural or general deficiencies in national law or practice ( “ pilot case ” ) has been delivered and a large number of applications to the ORG concerning the same problem ( “ repetitive cases ” ) are pending or likely to be lodged , the respondent state should ensure that potential applicants have , where appropriate , an effective remedy allowing them to apply to a competent national authority , which may also apply to current applicants . Such a rapid and effective remedy would enable them to obtain redress at national level , in line with the principle of subsidiarity of the Convention system .

The introduction of such a domestic remedy could also significantly reduce the ORG ’s workload . While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter , there may exist a category of people who have already been affected by this problem prior to its resolution . The existence of a remedy aimed at providing redress at national level for this category of people might allow the ORG to invite them to have recourse to the new remedy and , if appropriate , declare their applications inadmissible .

Several options with this objective are possible , depending , among other things , on the nature of the structural problem in question and on whether the person affected by this problem has applied to the ORG or not .

In particular , further to a pilot judgment in which a specific structural problem has been found , CARDINAL alternative might be to adopt an ad hoc approach , whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation .

Within the framework of this case - by - case examination , states might envisage , if this is deemed advisable , the possibility of reopening proceedings similar to those of a pilot case which has established a violation of the Convention , with a view to saving the ORG from dealing with these cases and where appropriate to providing speedier redress for the person concerned . The criteria laid out in Recommendation Rec(CARDINAL)CARDINAL of ORG might serve as a source of inspiration in this regard .

When specific remedies are set up following a pilot case , governments should speedily inform the ORG so that it can take them into account in its treatment of subsequent repetitive cases .

However , it would not be necessary or appropriate to create new remedies , or give existing remedies a certain retroactive effect , following every case in which a ORG judgment has identified a structural problem . In certain circumstances , it may be preferable to leave the cases to the examination of the ORG , particularly to avoid compelling the applicant to bear the further burden of having once again to exhaust domestic remedies , which , moreover , would not be in place until the adoption of legislative changes . ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . She was represented before the ORG by Mr PERSON , a lawyer practising in ORG . ORG ( “ the Government ” ) were represented by PERSON , ORG at ORG .

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

The applicant brought civil proceedings against ORG of GPE seeking indexation of her unemployment allowance .

On DATE ORG found for the applicant and awarded her MONEY ( ORG ) for indexation of allowance , RUR CARDINAL.CARDINAL for damages and RUR CARDINAL for legal costs . The judgment was upheld on appeal by ORG on DATE .

On DATE ORG issued a writ of execution . On DATE the applicant forwarded the writ of execution to ORG , but the judgment has not been enforced .

On an unspecified date the applicant complained to ORG of GPE about the defendant ’s failure to enforce the judgment in her favour . By a decision of DATE ORG of GPE terminated the proceedings for the lack of subject matter jurisdiction . The court held that the applicant ’s claim could not be examined in the framework of civil proceedings and that the applicant had to apply for enforcement proceedings in order to oblige the defendant to enforce the judgment . On DATE ORG upheld the decision .

On DATE the judgment of CARDINAL DATE was fully enforced .

By a decision of CARDINAL DATE ORG granted the applicant ’s action for compensation of inflation losses sustained as a result of the delayed enforcement of the judgment of CARDINAL DATE . The court acknowledged that the judgment of CARDINAL DATE had been enforced with a substantial delay and awarded the applicant ORG for indexation and ORG for legal costs . No appeal was lodged against the decision and it acquired legal force on DATE .

On DATE the applicant received the amounts awarded by the decision of CARDINAL DATE .


Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Nullum crimen sine lege);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-b - Adequate facilities;Adequate time) (Article 6-3-b - Adequate facilities;Adequate time;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-d - Examination of witnesses) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Respondent State to take measures of a general character (Article 46-2 - Legislative amendments);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant was born in DATE and lives in GPE .

On DATE the applicant notified the GPE Mayor on behalf of a local human - rights NGO , “ Vartovi zakonu ” , of its intention to hold a demonstration DATE from TIME near the building of ORG during the period DATE and DATE . The aim of the demonstration was to draw attention to the issue of corruption in the prosecution service . The number of possible participants was declared as CARDINAL persons . There is no information as to whether any such demonstration was held prior to DATE ( see below ) .

On DATE ORG of ORG lodged a claim with ORG seeking to restrict the demonstration announced by the applicant . On DATE the court left the above claim without consideration as being submitted too late . ORG resubmitted its claim on DATE with a request for renewal of the time - limit for lodging the claim . DATE the court allowed the request and accepted the claim for examination .

On DATE , further to his previous announcement of CARDINAL DATE , the applicant informed ORG about the demonstration to be held on DATE . He thus organised a peaceful demonstration near ORG DATE between TIME and TIME About CARDINAL persons took part . They were standing on the pavement in front of the building of ORG when the police told them that they should remain at a distance of QUANTITY from the building . That would have forced the demonstrators to stand in the road and obstruct the traffic . After some discussion with the police , they crossed the road and stood on a lawn on the opposite side . The police , however , told the demonstrators that they could not stand on the lawn and should move away , which meant standing in the road again and obstructing the traffic , causing temporary traffic - jams .

NORP Immediately afterwards , the applicant was called aside by QUANTITY police officers . They grabbed his arms and took him in the direction of the nearby police station . Some of the demonstrators requested the officers to show them their identification and started filming the incident ; the officers then let the applicant go .

On DATE ORG granted a request by ORG of ORG to prohibit the holding of the pre - announced demonstrations by the applicant ’s NGO as from DATE . The decision was appealed against .

According to the applicant , on DATE he was invited to the police station on the pretext that he had failed to appear at a court hearing to which he had been summoned . Upon his arrival at FAC at TIME , the police accused the applicant of having committed the administrative offences of malicious disobedience to a lawful order by the police and of breaching the procedure for organising and holding a demonstration on DATE . TIME the police drew up reports on those administrative offences . The applicant telephoned his lawyer , but the latter was not allowed onto the LOC of the police station . At TIME the applicant was placed in a cell , where he remained without food until TIME on DATE , DATE .

On DATE , before taking him to the court , the police drew up anew the reports on the administrative offences of malicious disobedience to a lawful order by the police and of breaching the procedure for organising and holding a demonstration . In their reports they referred to provisions of ORG and to the procedure for organising and holding meetings , rallies , street marches and demonstrations in the city of GPE ( see paragraphs CARDINAL and DATE to CARDINAL below ) . The reports were signed by the applicant .

At TIME the applicant was taken to ORG . He had no opportunity to study the case - file materials before the court hearing . During the hearing , the court rejected the applicant ’s request to be represented by the lawyer of his choosing on the ground that the applicant was a human - rights defender and could defend himself . The applicant ’s request to summon and question witnesses and examine a video made during the events of CARDINAL DATE was also rejected by the court .

By a decision of DATE , the court found the applicant guilty of committing the administrative offences of malicious disobedience to a lawful order by the police , and of breaching the procedure for organising and holding a demonstration . The court noted that the applicant had held a street march without the permission of ORG and had ignored the lawful demands of the police to stop breaching the peace . He also refused to follow the police to their station but instead called the participants in the demonstration , who shouted and threatened the officers . The applicant denied all accusations . Having heard the applicant and examined the case - file materials , the court concluded that the applicant ’s testimony was refuted by the written reports of the police officers and the traffic police officers . The court noted that the said reports had been drawn up correctly and therefore had to be taken into account . It sentenced the applicant to DATE of administrative detention starting from TIME on DATE with reference to the relevant provisions of LAW .

At TIME on DATE the applicant was released .

On DATE the applicant appealed against the court ’s decision of CARDINAL DATE . In his appeal , he complained that he had been found guilty even though he had not committed the alleged offences . He noted that under LAW a demonstration could be held subject to notifying the authorities and any restrictions on holding one could be imposed only by a court ; no permission had therefore been required . He also noted that he had notified ORG twice about the gathering in question and at the time it was held there had been no court decision prohibiting it . Therefore , he considered that he had organised the gathering of DATE lawfully and the conclusions of the first - instance court that he had “ held a meeting without permission of the ORG ” had not been based on law as no such permission was required by domestic law . He further challenged the conclusion of the police that he had notified the authorities about the event TIME in advance , claiming that he had already done so on DATE . Furthermore , in his opinion , even the requirement of notification DATE in advance , which had been established by the procedure for organising and holding meetings , rallies , street marches and demonstrations in the city of GPE and to which the police referred in their reports on administrative offences , was not based on law , as ORG in its decision of DATE had decided that the procedure for such notification had to be a matter for legislative regulation .

The applicant further maintained in his appeal that , in the absence of any lawful restrictions on holding a demonstration , demands by the police to stop such an event could not be considered lawful and the law did not provide for liability for disobeying unlawful demands of police officers . He finally complained that the first - instance court had violated his right to defend himself as it had refused to allow his lawyer to appear in the case on the ground that the applicant was a human - rights defender and therefore able to defend his rights himself .

In a supplement to his appeal of DATE , the applicant complained that his punishment violated LAW . Referring to provisions of LAW and CARDINAL ( b - d ) of the LAW , he further complained that his right to defend himself had been violated , and that the first - instance court had refused to question the witnesses and to examine a video record of the peaceful demonstration .

On DATE ORG examined the applicant ’s appeal in the presence of the applicant and his lawyer and rejected it . It summarised the findings of the first - instance court and the arguments of the applicant ’s appeal . The court noted that the findings of the first - instance court as to the applicant’ ’s opinion , were confirmed by the police reports and other explanations and evidence . In reply to the applicant ’s arguments to the effect that there had been no corpus delicti in his actions , ORG noted that they should be disregarded , because they were refuted by the body of evidence in the case , without elaborating further on that point . The court referred in its decision to the relevant provisions of LAW .

The relevant provisions of the LAW read , in so far as relevant , as follows :

“ Human and ORG rights and freedoms affirmed by LAW are not exhaustive .

Constitutional rights and freedoms are guaranteed and shall not be abolished .

The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force . ”

“ ORG have the right to assemble peacefully without arms and to hold meetings , rallies , marches and demonstrations , after notifying the executive authorities and bodies of local self - government beforehand .

Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes , protecting the health of the population , or protecting the rights and freedoms of other persons .

“ The following are determined exclusively by the laws of GPE :

( CARDINAL ) NORP human and ORG rights and freedoms ; the guarantees of these rights and freedoms ; the main duties of the citizen ... ”

“ CARDINAL . Laws and other normative acts enacted prior to the entry into force of this LAW shall apply in so far as they do not conflict with LAW ... ”

NORP The relevant provisions of the Code read , in so far as relevant , as follows :

“ Malicious disobedience to a lawful order or demand by a police officer who is carrying out his official duties ... shall be punishable by a fine of DATE the minimum DATE wage , or by correctional labour of between one and ’s character these measures are found to be insufficient , by administrative detention of DATE . ”

“ A breach of the procedure for organising and holding meetings , rallies , street marches and demonstrations shall be punishable by a reprimand or by a fine of DATE times the minimum DATE wage .

The same actions committed within DATE of the application of administrative penalties or by the organiser of the meeting , rally , street procession or demonstration shall be punishable by a fine of QUANTITY times the minimum DATE wage , or by correctional labour of DATE , with a deduction of PERCENT of earnings ; or by administrative detention of DATE . ”

“ The provision by officials of LOC , transport , or technical means , or the creating of other conditions for the organisation and holding of meetings , rallies , street marches and demonstrations , in violation of the established procedure , shall be punishable by a fine of QUANTITY times the minimum DATE wage . ”

Paragraph CARDINAL of Article CARDINAL of the LAW provides , inter alia , for the following rights in respect of a person whose administrative liability is engaged :

“ A person whose administrative liability is engaged shall be entitled to study the case materials , to give explanations , to present evidence , to make requests , and to have the assistance of a lawyer ... during the examination of the case ... ”

The right to a lawyer in administrative offence proceedings is further guaranteed by LAW .

According to LAW , a court resolution concerning an administrative offence could be appealed against . The relevant part of the LAW provides as to the appellate court ’s competence as follows :

“ A court of appeal shall review the case within the scope of the appeal . The court of appeal is not limited to arguments of the appeal if incorrect application of substantive law or violation of procedural norms has been established during the hearing . The court of appeal can examine new pieces of evidence which have not been examined before , if it finds that the failure to present them to the local court was justified or that the local court rejected them without good reason . ”

The Decree lays down the procedure for seeking and granting permission to organise and hold meetings , rallies , street marches and demonstrations . The PERSON provides inter alia as follows :

“ The LAW of the GPE , according to the interests of the people and for the strengthening and development of the socialist system , guarantees to the citizens of the GPE the freedom to hold meetings , rallies , street marches and demonstrations . Exercise of these political freedoms shall be ensured to the working people and their organisations by providing them with public buildings , streets , squares and other places ...

An application to hold a meeting , rally , street procession or demonstration shall be submitted to the executive committee of the appropriate local NORP of people ’s deputies ...

An application to hold a meeting , rally , street procession or demonstration shall be submitted in writing no later than DATE before the planned date of the event in question ...

NORP The executive committee of the NORP of people ’s deputies shall examine the application and notify the representatives ( organisers ) of its decision DATE prior to the date of the event mentioned in the application ...

NORP The executive committee of the NORP of people ’s deputies shall ban a meeting , rally , street procession or demonstration if the goal of the event in question is contrary to LAW GPE , ORG or of the autonomous republics or poses a threat to the public order and safety of citizens . ”

By enacting this PERSON , ORG of the GPE approved a number of Decrees of the ORG , including the above - mentioned LAW DATE .

The ORG provides in particular :

“ ... before the relevant legislation of GPE is enacted , the legislation of the GPE shall be applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of GPE and in so far as they do not contravene the LAW and legislation of GPE . ”

NORP This decision introduced the procedure for organising peaceful gatherings in the city of GPE . According to that decision , the freedom of assembly was guaranteed , but could be restricted by a court for considerations of public health , prevention of crime and disorder and protection of the rights of others . To restrict such a gathering , ORG could apply to a court . Item CARDINAL of the procedure provided that notification about a planned gathering had to be given DATE prior to the date on which it was to be held .

Item CARDINAL of the procedure specified that gatherings could not be held in the road ( except street marches and demonstrations ) , on lawns and flower beds , or in front of the central entrance ( not closer than QUANTITY ) and other entrances of administrative buildings . Nor could they be held in case of non - compliance with sanitary norms . Item QUANTITY of the procedure specified that holding a gathering in breach of any of the restrictions imposed by item CARDINAL should be considered a breach of the peace and should engage liability under the law . Item CARDINAL further provided that the organisers should be responsible for ensuring public order during a gathering . Item CARDINAL further provided that the authorities could apply to a court for the purpose of establishing the liability of persons responsible for breaching the procedure .

On DATE ORG annulled the decision of DATE of its ORG and ordered a new procedure on the holding of such gatherings to be drawn up .

In its decision ORG held inter alia :

“ CARDINAL . ... ORG of GPE applied to ORG for an official interpretation of the provisions of LAW regarding timely notification to executive authorities or bodies of local self - government of planned meetings , rallies , marches or demonstrations .

In this constitutional application it is noted that , under LAW , citizens have the right to assemble peacefully without arms and to hold meetings , rallies , marches or demonstrations following prior notification to the executive authorities or bodies of local self - government . However , it is stressed that the current legislation of GPE does not provide for a specific time - limit within which the executive authorities or bodies of local self - government are to be notified about such actions ...

... ORG holds as follows :

The provisions of the first part of DATE GPE on the timely notification to the executive authorities or bodies of local self - government about planned meetings , rallies , marches or demonstrations relevant to this constitutional application shall be understood to mean that where the organisers of such peaceful gatherings are planning to hold such an event they must inform the above - mentioned authorities in advance , that is , within a reasonable time prior to the date of the planned event . These time - limits should not restrict the right of citizens under LAW , but should serve as a guarantee of this right and at the same time should provide the relevant executive authorities or bodies of local self - government with an opportunity to take measures to ensure that citizens may freely hold meetings , rallies , marches and demonstrations and to protect public order and the rights and freedoms of others .

Specifying the exact deadlines for timely notification with regard to the particularities of [ different ] forms of peaceful assembly , the number of participants , the venue , at what time the event is to be held , and so on , is a matter for legislative regulation ... ”

In its review ORG noted inter alia as follows :

“ ... No legislation has been enacted in GPE establishing a mechanism for fulfilling the right to freedom of peaceful assembly . According to ORG no . CARDINAL on temporary application of certain legislative acts of GPE , the normative acts of the GPE remain in force , applying in order of legal rank , for example , LAW of the GPE of DATE on the procedure for organising and holding meetings , rallies , street marches and demonstrations in the GPE ... ”

The note mentioned , inter alia , as follows :

“ ... The legislation of GPE does not currently have a special law regulating public relations in the sphere of peaceful assembly . CARDINAL of the urgent problems to be settled by such a law is the time - limits for notifying the authorities of a planned peaceful gathering in order to ensure that it is held in safe conditions . LAW , while providing that the executive authorities or bodies of local self - government must be notified in a timely manner that a peaceful gathering is to be held , does not establish specific deadlines for such notification . The uncertainty of this matter results in the relevant constitutional norm being applied inconsistently and thus requires legal regulation ...

... The judicial practice contains instances of cases restricting the right to peaceful assembly being decided on the basis of the procedure for organising and holding meetings , rallies , street marches and demonstrations laid down by LAW of the GPE of DATE No . CARDINAL-XI on the procedure for organisation and holding of meetings , rallies , street marches and demonstrations in the GPE . This approach is incorrect .

Since the norms of this Decree establish the procedure for authorising ( registering ) peaceful assembly and empower the authorities and bodies of local self - governments to ban such events , whereas the norms of the LAW of GPE provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering , the above - mentioned legal act should not be applied by courts when deciding such cases ... ”

In the judgment of LOC of DATE in the case of PERSON ORG of ORG concerning the adoption of regulations on holding mass events in the city of GPE , the court held , inter alia , that the procedures for exercising the right to freedom of assembly and the procedures and grounds for restricting the right were not regulated by NORP legislation and therefore the ORG had no grounds for adopting the impugned regulation , which would interfere with the rights of citizens .

In another case ORG , in a judgment of CARDINAL DATE , restricted the right of several NGOs and private persons to hold a demonstration on account , in particular , of their failure to notify ORG of their intention DATE in advance . The court referred to LAW . The participants appealed against that judgment . On DATE ORG quashed the judgment of the first - instance court . In its decision ORG noted that the CARDINAL Decree conflicted with the LAW as it required the organisers to seek permission to hold a demonstration and authorised the executive authorities to ban such an event , whereas Article CARDINAL of the LAW provided that the authorities should be notified that a demonstration was being planned , and empowered only the judicial authorities to place restrictions on the organisation thereof . It also noted that in its decision of DATE ( see paragraph CARDINAL above ) ORG had not referred to LAW as a normative act which should apply in GPE to the legal relations under consideration . The court also noted that the file contained no documents proving that notification about the demonstration DATE in advance had not allowed the police to ensure public order during the demonstration and that the holding of such an event could create a real risk of riots or crimes or endanger the health of the population and imperil the rights and freedoms of others . It concluded that the judgment of the first - instance court was incompatible with Article CARDINAL of the LAW .

In another case ORG , in a decision of DATE , quashed the judgment of ORG , which had restricted the freedom of peaceful assembly in respect of a number of political and non - governmental organisations upon an application by ORG . In its decision ORG noted that , in deciding the case , the first - instance court had had regard to the provisions of the CARDINAL Decree , whereas since DATE the question of holding peaceful gatherings had been regulated by LAW . The court further stated that LAW conflicted with the LAW as it provided for a procedure for seeking permission to hold a demonstration and that the Decree concerned the holding of such events in a non - existent country ( “ the GPE ” ) , regulated relations between the citizens of the GPE and the executive committees of the NORP of ORG , and considered demonstrations on the basis of their compatibility with LAW GPE , the constitutions of the union and the autonomous GPE , that is , non - existent constitutions of non - existent subjects . The court also noted that under the NORP LAW human rights and freedoms , and the relevant safeguards , could be defined only by the laws of GPE .

According to the NORP ORG in DATE the NORP authorities sought to restrict peaceful gatherings in CARDINAL cases and in PERCENT of the cases they succeeded .

At the request of a NORP MP , ORG sent an information letter to an NGO in GPE . The text of this letter can be found on the official website of ORG .

The relevant parts of the letter read as follows :

“ ... It should be noted that the current legislation on the organisation and holding of peaceful demonstrations is not perfect . For example , DATE the organisation and conduct of peaceful demonstrations is regulated by LAW of the GPE of DATE N CARDINAL on the organisation and holding of meetings , rallies , street marches and demonstrations in the GPE ( hereinafter DATE “ the Decree ” ) which , in accordance with paragraph CARDINAL of LAW of NORP − is effective in so far as it does not contradict LAW . The above Decree defined , in particular , which persons were authorised to contact the executive bodies of village , settlement and town councils to notify them of proposed peaceful demonstrations ; requirements for the content of such notifications ; requirements for the executive bodies of village , settlement and town councils in ensuring conditions for the holding of a peaceful demonstration ; etc .

Thus , the requirements as to the organisation and holding of peaceful demonstrations , the time - limit for notification to be given to executive or local government bodies , the documents to be attached to the application for holding the event , etc . are currently not regulated by law ...

... Given the inadequacy of the current state of the legal regulation of the procedure for the organisation and conduct of peaceful demonstrations , which results in problems in the application of law , since the legal norms are not formulated with sufficient clarity and are subject to ambiguous interpretation by those wishing to have recourse to them ( including bodies of local government ) , only legislative regulation of the procedure for organising and holding such demonstrations will eliminate the negative practices that have arisen .

Because of the need for legislative support for the practical application of the aforesaid right defined by LAW - to assemble peacefully without arms and to hold meetings , rallies , demonstrations , pickets and marches - ORG has drafted the PERSON of GPE on the organisation and conduct of peaceful demonstrations , which was submitted by ORG of GPE to PERSON of GPE ( registration N CARDINAL from DATE ) and was approved by the ORG on its first reading on DATE ... ”

NORP The draft law mentioned in the letter is currently awaiting its second reading in ORG .

The Guidelines provide in so far as relevant as follows :

“ CARDINAL . Advance notice . The legal provisions concerning advance notice should require a notice of intent rather than a request for permission . The notification process should not be onerous or bureaucratic . The period of notice should not be unnecessarily lengthy , but should still allow adequate time prior to the notified date of the assembly for the relevant state authorities to plan and prepare for the event , and for the completion of an expeditious appeal to a tribunal or court should the legality of any restrictions imposed be challenged . If the authorities do not promptly present any objections to a notification , the organizers of a public assembly should be able to proceed with the planned activity in accordance with the terms notified and without restriction . ”

The legal framework

Regulating freedom of assembly in domestic law . Freedom of peaceful assembly should be accorded constitutional protection that ought to contain , at a minimum , a positive statement of both the right and the obligation to safeguard it . There should also be a constitutional provision that guarantees fair procedures in the determination of the rights contained therein . Constitutional provisions , however , can not provide for specific details or procedures . As such , general constitutional provisions can be abused and , of themselves , afford unduly wide discretion to the authorities .

Domestic laws regulating freedom of assembly must be consistent with the international instruments ratified by that state , and the legitimacy of domestic laws will be judged accordingly . Domestic laws must also be interpreted and implemented in conformity with the relevant international and regional jurisprudence .

Legality

Any restrictions imposed must have a formal basis in primary law . The law itself must be sufficiently precise to enable an individual to assess whether or not his or her conduct would be in breach of the law , and to foresee what the consequences of such breaches would likely be . The incorporation of clear definitions in domestic legislation is vital to ensuring that the law remains easy to understand and to apply , and that regulation does not encroach upon activities that ought not to be regulated . Definitions should therefore be neither too elaborate nor too broad . ”

Advance notification

It is common for the regulatory authority to require advance written notice of public assemblies . Such a requirement is justified by the state ’s positive duty to put in place any necessary arrangements to facilitate freedom of assembly and protect public order , public safety , and the rights and freedom of others . ORG has held that a requirement to give notice , while a de facto restriction on freedom of assembly , is compatible with the permitted limitations laid down in DATE the ORG . Similarly , ORG , in PERSON ( DATE ) , stated that : “ Such a procedure is in keeping with the requirements of LAW , if only in order that the authorities may be in a position to ensure the peaceful nature of the meeting , and accordingly does not as such constitute interference with the exercise of the right . ”

The notification process should not be onerous or bureaucratic , as this would undermine the freedom of assembly by discouraging those who might wish to hold an assembly . Furthermore , individual demonstrators should not be required to provide advance notification to the authorities of their intention to demonstrate . Where a lone demonstrator is joined by another or others , then the event should be treated as a spontaneous assembly ...

The period of notice should not be unnecessarily lengthy ( normally no more than a few days ) , but should still allow adequate time prior to the notified date of the assembly for the relevant state authorities to plan and prepare for the event ( deploy police officers , equipment , etc . ) , for the regulatory body to give a prompt official response to the initial notification , and for the completion of an expeditious appeal to a tribunal or court should the legality of any restrictions imposed be challenged .

The official receiving the notice should issue a receipt explicitly confirming that the organizers of the assembly are in compliance with the applicable notice requirements . The notice should also be communicated immediately to all state organs involved in the regulatory process , including the relevant police authorities .

Notification , not authorization

Legal provisions concerning advance notice should require a notice of intent rather than a request for permission . Although lawful in several jurisdictions , a permit requirement accords insufficient value to both the fundamental freedom to assemble and to the corresponding principle that everything not regulated by law should be presumed to be lawful . Those countries where a permit is required are encouraged to amend domestic legislation so as to require notification only . It is significant that , in a number of jurisdictions , permit procedures have been declared unconstitutional . Any permit system must clearly prescribe in law the criteria for issuance of a permit . In addition , the criteria should be confined to considerations of time , place , and manner , and should not provide a basis for content - based regulation .

If the authorities do not respond promptly to a notification , the organizers of a public assembly may proceed with the activities according to the terms notified without restriction . Even in countries where authorization rather than notification is still required , authorization should be presumed granted if a response is not given within a reasonable time . ”

At its CARDINALth plenary session ( DATE ) ORG ) adopted an opinion interpreting the ORG guidelines on drafting laws on freedom of assembly with regard to the regulation of public meetings , including the requirement of advance notice of demonstrations in public places :

“ CARDINAL . Establishing a regime of prior notification of peaceful assemblies does not necessarily extend to an infringement of the right . In fact , in several NORP countries such regimes do exist . The need for advance notice generally arises in respect of certain meetings or assemblies – for instance , when a procession is planned to take place on the highway , or a static assembly is planned to take place on a public square – which require the police and other authorities to enable it to occur and not to use powers that they may validly have ( for instance , of regulating traffic ) to obstruct the event . ”

ORG also emphasised that the regime of prior notification must not be such as to frustrate the intention of the organisers to hold a peaceful demonstration , and thus indirectly restrict their rights .


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

The applicant is a NORP citizen , born in DATE . It appears that he resides in ORG , GPE . Before the ORG the applicant is represented by Mr PERSON , a lawyer practising in GPE , GPE .

A.

On DATE an indictment was served on the applicant by the Chief of Police in Helsingør ( Politimesteren i Helsingør ) charging him with having illegally possessed a knife , with a blade whose size exceeded the maximum length permitted under NORP law , and with having assaulted and uttered threats of violence against a social worker on duty .

On DATE ORG ( retten i Hørsholm ) held a hearing in which the applicant , assisted by counsel , and CARDINAL witnesses were heard . On the basis of an evaluation of the available evidence ORG convicted the applicant and sentenced him to CARDINAL days’ imprisonment . The applicant appealed immediately against the judgment to ORG of Eastern GPE ( PERSON ) claiming acquittal .

On DATE the indictment for the proceedings in ORG was accordingly served on the applicant by ORG Statsadvokaten for Sjælland ) . The indictment also informed the applicant that he would receive further notice about the date of the hearing .

On DATE ORG issued a writ of summons to be served on the applicant , announcing that the hearing would take place on DATE in ORG . The writ granted the applicant CARDINAL days’ notice and warned him that failure to appear in court could , inter alia , result in his appeal being dismissed . The writ was forwarded to the Chief of Police of Gladsaxe . It appears , however , that problems arose in that the police were unable to find the applicant in order to serve the writ on him .

Thus , on DATE the Chief of Police informed ORG that CARDINAL unsuccessful attempts had been made to serve the writ on the applicant at his registered address and that , by mail , he had been requested to contact the police , which , however , he had not done .

The same day the police succeeded in reaching the applicant through his brother who managed to establish a telephone contact by which the applicant informed the police that he was at present working in GPE ( in GPE ) and could not , therefore , come to the hearing in ORG DATE .

On DATE the applicant failed to appear in ORG for which reason ORG requested that the applicant ’s appeal be dismissed pursuant to section CARDINAL c § CARDINAL , second sentence , of ORG ( retsplejeloven ) . The applicant ’s counsel , who was present in court , objected to the claim for dismissal but did not request leave to plead the case in the applicant ’s absence . ORG allowed the parties to present their arguments on the question of dismissal following which the ORG decided as follows : ( Translation )

“ According to the information available , during the period from DATE until DATE ORG has CARDINAL times attempted in vain to serve a summons for the hearing on the applicant , who has not been at home at the civil register address indicated and who has not reacted to the invitations of the police to contact the police .

The applicant , who was aware that the appeal had been brought before ORG , has omitted to give notice to the effect that he does not stay at the address notified to the civil register , but is staying in GPE at present . Since it is then due to the applicant ’s circumstances that it has been impossible to serve a summons on him in the usual manner , the High Court finds for ORG claim of dismissal pursuant to section CARDINAL c § CARDINAL , second sentence , of ORG . ”

On DATE the applicant applied to ORG for leave to appeal against the dismissal to ORG ( Højesteret ) . Having obtained written observations from the prosecution and from the applicant , ORG refused , on DATE , to grant leave to appeal .

B. Relevant domestic law

A person convicted in a criminal case tried by a city court is free , in principle , to appeal the judgment to ORG , to whose district the court in question belongs , cf . section CARDINAL § CARDINAL first sentence , of ORG . Immediately upon pronouncement of the judgment , a defendant can give notice orally to the court records that he wants to appeal the judgment , cf . section CARDINAL § CARDINAL , cf . section CARDINAL § CARDINAL , second sentence , of ORG .

As soon as possible after receipt of the notice of appeal , ORG sees to it that attempts are made to serve a notification ( notice of appeal and indictment ) on the defendant in the usual manner , cf . section CARDINAL § CARDINAL , cf . section CARDINAL § CARDINAL of ORG . The notification must include information to the effect that the defendant or his counsel will later be notified of the time of the hearing , cf . section CARDINAL § CARDINAL , cf . section CARDINAL § CARDINAL , cf . section CARDINAL § CARDINAL of ORG .

When an appeal also comprises assessment of the evidence , ORG arranges for a summons containing information on the time and place of the hearing to be served on the defendant with CARDINAL days’ notice , cf . section CARDINAL § CARDINAL , cf . section CARDINAL § CARDINAL of ORG . If a summons is not served pursuant to section CARDINAL a § CARDINAL , cf . section CARDINAL § CARDINAL , of ORG , or if a summons is served on the defendant at CARDINAL days’ notice , the effect is that the defendant is not lawfully summoned to the hearing , and therefore , as a point of departure , the hearing can not be held if the defendant fails to appear at the hearing .

However , pursuant to section CARDINAL c § CARDINAL , second sentence , of ORG , the defendant ’s appeal may be dismissed if it has been impossible to serve the indictment or the summons on him in the usual manner because he has changed his address or place of residence without giving due notice thereof .

The provision must be seen in the light of section QUANTITY , first sentence , of ORG . Under this provision , if a defendant fails to appear without stating a lawful cause of absence in proceedings where the appeal was raised by him and comprises the assessment of evidence , the ORG can dismiss his appeal by order if it finds that the hearing can not usefully be proceeded with in his absence .


Violation of Art. 2 in respect of failure to protect life;Violation of Art. 2 in respect of ineffective investigation;Violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Dr PERSON , the applicant 's brother , practised medicine in south - east GPE . From DATE to DATE , he had worked in PERSON . He had treated demonstrators injured in clashes with the security forces during the PERSON ( Kurdish New Year ) celebrations . Following this , he was transferred from ORG . He had told PERSON Can , the wife of his friend PERSON , that he had been threatened in Şırnak and put under considerable pressure .

In GPE , PERSON worked in a health centre . He met often with his friend PERSON Can , who was a lawyer and President of ORG ( ORG ) . ORG Can had been representing persons suspected of being members of the ORG ( ORG of Kurdistan ) . He had told his wife PERSON Can that he had received threats and that an official had warned him that steps had been planned against him . According to PERSON , who worked at the ORG , ORG had also been subjected to threats because of the attempts he had made to improve conditions in FAC . The police had carried out a search at the ORG , as they had at other ORG offices in the south - east .

In DATE PERSON , who had lived in ORG until DATE , was taken into detention by police officers in GPE and transferred to ORG , where he was interrogated to find out what he knew about the ORG . He was asked whether CARDINAL doctors in ORG , CARDINAL of whom was PERSON , had been treating wounded members of the ORG . A threat was made that PERSON would be punished . He was also asked about lawyers , particularly ORG . On his release , Bira Zordağ visited the ORG and told PERSON and ORG what had occurred .

At DATE PERSON told the applicant that he felt that his life was in danger . He believed that the police were making reports on him and keeping him under surveillance . At around the same time , ORG told the applicant that his flat had been searched while he was out and that he thought he was under surveillance .

NORP On or about CARDINAL February CARDINAL , CARDINAL men came to the block of flats where ORG lived . They rang the doorbells of PERSON PERSON and PERSON , asking for ORG . When PERSON and PERSON Can got home TIME , they received a telephone call . The callers said that they had been to the flat earlier and wanted to come and see ORG Can immediately . ORG told them to come to his office DATE .

On DATE , after receiving a phone call at his office , ORG met CARDINAL men in a coffee house . PERSON was also present . The men said that there was a wounded member of the ORG hidden outside town . ORG took the men back to his flat and called ORG on the telephone . PERSON arrived at the flat . It was arranged that the CARDINAL men would take the wounded man to GPE , a village outside ORG , and that they would call when they were ready . The CARDINAL men left . At TIME , there was a phone call . ORG left with PERSON , who was carrying his medical bag . ORG told his wife that they would not be long . They drove off in the car of ORG brother .

Metin Can and PERSON did not return that night . At TIME or TIME on DATE , PERSON Can received a phone call . The speaker sounded like one of the men who had come to the flat . He said that ORG and his friend had been killed . PERSON Can and PERSON went to ORG to report that ORG and PERSON were missing . Neither told the police about the meeting of ORG with the CARDINAL men or the details of events preceding the disappearance . Nor did PERSON Can mention those details when she made a statement to the public prosecutor that day .

By notification of CARDINAL DATE the ORG governor informed all the other governors in the state of emergency region of the disappearance of ORG Can and PERSON , requesting that they and their car be located .

At TIME on DATE PERSON noticed a car parked suspiciously opposite his office in GPE and reported it to the police . It was the car belonging to ORG brother . The police searched the car , fingerprinted and photographed it .

That TIME , police officers took statements from the neighbours in ORG block of flats .

Further strange calls were made to the ORG Can flat . On DATE ORG nephew answered the phone . A person claimed that ORG and PERSON were still alive and that they would release the former . He said that ORG would not go to LOC and would continue the struggle .

On DATE at TIME , a bag was found outside the ORG ( ORG ) building in ORG . It contained CARDINAL pairs of old shoes . On DATE CARDINAL pair of shoes was recognised by ORG as belonging to his brother ORG . ORG stated that the other pair did not belong to his brother , PERSON .

On DATE the public prosecutor obtained an order from ORG for the telephone at ORG flat to be monitored in order to identify the persons making threatening calls .

PERSON lodged a petition with the ORG governor DATE requesting that steps be taken to find his son PERSON .

On DATE Fatma Can and PERSON travelled to GPE , where they appealed to the Minister of the Interior for ORG to be found . PERSON Can returned to ORG on DATE .

At TIME on DATE it was reported that CARDINAL bodies had been found under the ORG bridge , QUANTITY outside GPE . The bodies were identified as being those of PERSON and ORG . CARDINAL cartridges were found at the scene . The bodies did not have shoes on and there was not much blood on the ground . The applicant and other members of the family arrived at the location and saw the bodies .

An autopsy was carried out at TIME on DATE at ORG morgue . The autopsy report noted that both men had been shot in the head and had their hands tied . No trace of violence or blow was observed on PERSON body . As for ORG , it was noted that his nose had haemorrhaged , there was a wound in his lip and some teeth were missing , there were bruises around his neck , on the knees and on the torso and abdomen . Maceration was observed on the feet . It was noted that there was no trace of violence or blow . An addendum was attached by the doctors who had carried out the examination to the effect that a bruise on the right eyebrow might have been caused by a blow . It was estimated that death had occurred TIME previously .

A second autopsy was carried out on DATE at CARDINAL a.m.

The applicant identified the body of his brother , PERSON . The report described the bullet entry and exit holes to the head . It stated that the right ear and adjacent area were marked with ecchymoses which could be explained by pressure on the body . There were ecchymoses around the nail bases on the left hand ; circular marks around both wrists , which might have been caused by the hands being bound by wire ; a CARDINAL by QUANTITY ecchymosis on the right knee ; a CARDINAL by QUANTITY light yellow ecchymosis on the inner lower frontal region of the right knee ; a QUANTITY wide ecchymosis on the left ankle ; QUANTITY wide epidermal scratches on the left ankle ; cyanosis in the toe bases on both feet and athlete 's foot on both feet , especially on the soles and the left sides of the feet , probably caused by remaining in water and snow for lengthy periods . The torso of the body was free from any blow , wound , burn or firearm injury save those noted above . The cause of death was brain damage and haemorrhage of the brain tissues due to the bullet wound . A classical autopsy was not necessary .

ORG Can identified the body of his nephew ORG . The report described MONEY and injuries to the body . These included bruises and scratches on the face and head , a tear in the lip , bruising around the neck , bone damage to the jaw and missing teeth , marks on the wrists indicative of being bound , bruises on the knees and cyanosis on both feet and toes . The bruises and scratches on the forehead , nose and under the right eye were thought to have been caused by blunt instruments ( for example , a stone or a stick ) and the lesions on the neck by string , rope or cable . This might have occurred immediately before death and from the application of force for short periods . These wounds would not have caused death . Death resulted from brain damage and brain haemorrhage .

Death was estimated as having occurred within DATE TIME .

On DATE the NORP province central gendarmerie commander sent the NORP public prosecutor an incident report dated DATE and a sketch map of the location of the bodies .

On DATE the NORP public prosecutor sent the CARDINAL cartridges found at the scene for ballistics examination .

On DATE the ORG public prosecutor took a further statement from PERSON Can concerning the disappearance of her husband . She mentioned that her husband had told her that he thought the police were following him and that their flat had been searched when they were out . She said that her husband had been invited to go to GPE . She had asked him to resign as President of the ORG many times and he had said that he would .

On DATE the ORG public prosecutor issued a decision of non - jurisdiction , transferring the file to GPE where the bodies had been found .

On DATE PERSON sent a petition to the public prosecutor giving information which he had heard about the events . This stated that his son had been seen being taken into custody at GPE by police officers in civilian clothes carrying walkie - talkies . The car in which they travelled had stopped at a petrol station , where the officers had mentioned that they were taking the lawyer and doctor for interrogation . Further , during a conversation at Hozat involving a judge and a lawyer called PERSON , a police officer had said that Can and Kaya had been taken to ORG .

In a petition dated DATE to the Pertek public prosecutor , PERSON recounted an incident which he had heard had occurred in a Pertek beer house on DATE . At TIME , during a television programme on contra - guerrillas , a man called PERSON , nicknamed PERSON , had announced : “ ... We killed PERSON and the lawyer ORG . ” When the people in the beer house attacked him , he had pulled out a gun . He had called for help on his walkie - talkie and gendarmes had come to take him away .

On DATE the NORP public prosecutor issued a decision of non - jurisdiction concerning the killing of PERSON and ORG by unknown perpetrators . As he considered that the crime fell within the scope of the legislation on the state of emergency , he transferred the file to ORG prosecutor .

On DATE , following a request by the Pertek public prosecutor summoning PERSON , the Pertek chief of police informed the prosecutor that there was no such person in their district .

On DATE a statement was taken by the NORP public prosecutor from the lawyer PERSON , who denied that he had heard any police officer give information about the murders of GPE and Can .

On DATE PERSON submitted a further petition to the NORP public prosecutor . He stated that Can and ORG had been seen taken by police officers at GPE and that the car had stopped at a petrol station where the petrol attendant had recognised and spoken to Can , who had said they were being taken somewhere by the officers . The petition pointed out that the CARDINAL men had been taken QUANTITY through CARDINAL official checkpoints and the circumstances indicated that the ORG authorities were involved . It stated that a complaint was being lodged against the governor , the chief of police and the Minister of the ORG .

A report dated DATE by the NORP police informed the NORP public prosecutor that ORG allegation had been investigated . The investigation disclosed that no NORP police officer had made a statement alleging that Can and Kaya had been held at ORG .

On DATE the Pertek public prosecutor instructed the Pertek chief of police to summon the managers of the beer house and requested information from the Pertek district gendarmerie command concerning the allegation that a non - commissioned officer ( ORG ) had taken PERSON from the beer house .

On DATE the Pertek chief of police informed the public prosecutor that , while it was reported that PERSON had been seen in the area and had stayed at the district gendarmerie headquarters , his whereabouts were unknown .

In a statement taken by the public prosecutor on CARDINAL DATE PERSON , who ran the Pertek beer house , stated that on DATE a man he knew as PERSON claimed that he and others had killed Can and Kaya . He had talked on the radio and a ORG had come to pick him up . He had not seen the other people in the beer house attacking PERSON or PERSON drawing a gun . In a statement , also of CARDINAL DATE , PERSON , a waiter at the beer house , agreed with the statement made by ORG .

By letter dated DATE , the Pertek district gendarmerie commander informed the public prosecutor that he was not aware of the incident at the beer house and that no assistance had been requested from a beer house . No ORG had been involved .

On DATE ORG prosecutor issued a decision of non - jurisdiction , transferring the file to ORG prosecutor .

On DATE PERSON , President of the NORP ORG , and PERSON , a lawyer , sent the ORG public prosecutor a copy of an article in the CARDINAL DATE issue of the newspaper Aydınlık which stated that a special - operations officer had identified the killers , inter alia , of PERSON and ORG as being PERSON , known as “ PERSON ( “ the PERSON ” ) , and PERSON , who were contra - guerrillas paid by the ORG and responsible for most of the killings in the area .

When summoned to give further explanations , PERSON , in a statement to the public prosecutor of CARDINAL DATE , said that he did not personally know “ PERSON ” but DATE when he was Chairman of the ORG in GPE he had received complaints that “ the Beard ” was carrying out attacks and was associating with the security forces .

On DATE the NORP public prosecutor , inter alia , instructed the police to locate and summon PERSON . The police replied on DATE that they could not find him .

Following an instruction by ORG prosecutor of CARDINAL DATE , the Pertek public prosecutor took a further statement from PERSON on DATE which confirmed that he had heard a man calling himself PERSON claim to have killed Can and GPE . PERSON had spoken into a radio asking for the regiment commander , and CARDINAL men had taken him away . He explained that ORG had moved to GPE .

On DATE the ORG public prosecutor took a statement from ORG which confirmed his earlier statement . It stated that PERSON had tried to contact the regiment commander on his radio and when he could not get through he had called the Pertek district gendarmerie headquarters asking for them to come and get him . He said CARDINAL NCOs , PERSON and PERSON , had arrived with another ORG in civilian clothes , whose name he did not know .

On DATE the NORP public prosecutor issued another instruction to the NORP police to bring GPE and PERSON to his office . On DATE the police reported that they had not found their addresses and that they were not known in their jurisdiction .

On DATE PERSON , the editor of PERSON , lodged a petition with the GPE public prosecutor , which was forwarded to the NORP public prosecutor . This identified PERSON as CARDINAL of the perpetrators of the murder of PERSON and ORG as well as other killings . It was based on information received from a Major PERSON , which had been the basis of a series of articles in the newspaper from DATE .

On DATE ORG prosecutor informed the Pertek public prosecutor that there were discrepancies in the information provided by the Pertek police and the Pertek gendarmerie and that since the gendarmes might be implicated , the public prosecutor should conduct an inquiry into the discrepancies himself .

On DATE ORG prosecutor requested that the tape and transcript of a television programme be obtained , during which an Aydınlık correspondent had talked about Major PERSON Ersever .

In a petition dated DATE to the ORG public prosecutor , PERSON referred to PERSON , the television programme and PERSON book The Confessions of Major PERSON Ersever as disclosing that PERSON was the planner and perpetrator of the Can and Kaya murders . He stated that Yıldırım had been a ORG employee for DATE and came from ORG . In his statement to the public prosecutor that day , he said that he did not know ORG personally but in the district he was talked about as having been involved in such incidents .

On DATE the ORG public prosecutor requested the ORG police to investigate the allegations made concerning PERSON Yıldırım .

By letter dated CARDINAL DATE , the Pertek public prosecutor informed the NORP public prosecutor that PERSON was known to have been a member of a NORP - Leninist organisation and had been identified as being involved in an armed attack on a van and a robbery . An arrest warrant had been issued against him on DATE , but withdrawn by ORG on DATE .

By a petition dated DATE to the ORG public prosecutor , PERSON Can , the father of ORG , filed a complaint against NORP Yıldırım , who was said in the press and in books to have killed his son . He stated that ORG 's home address was No . CARDINAL PERSON and that he worked at ORG .

The police reported on DATE that ORG had left his address DATE previously and that his present whereabouts were unknown . In a further report dated DATE , the police stated that he was still not to be found at his address . The public prosecutor was so informed .

On DATE ORG prosecutor received the tape and transcript of the television programme which recounted PERSON interviews with Major PERSON Ersever and included that journalist 's claim that PERSON , known as “ LOC ” , who was well known to the police and gendarmes , had killed ORG and ORG .

On DATE ORG prosecutor issued a decision of non - jurisdiction , transferring the file to ORG following the reorganisation of jurisdiction for ORG and GPE .

On DATE the ORG prosecutor sent instructions to the ORG , ORG , ORG and GPE prosecutors for the location and arrest of ORG , the location of PERSON , PERSON and PERSON , who had been named in newspaper articles as having been involved with “ NORP ” in contra - guerrilla murders , including those of Can and Kaya , and the location of PERSON and PERSON .

DATE . On DATE the director of ORG provided information about PERSON , PERSON and PERSON , who had been members of the ORG , had become confessors and had been detained at the prison for various periods . PERSON had been released on DATE and PERSON on DATE . PERSON had been released on DATE but redetained at the prison on DATE on a charge of homicide related to an incident where PERSON had allegedly been taken from his shop by a group of men purporting to take him into custody , and later found shot dead .

On DATE a statement was taken from PERSON , in which he denied that he had been involved in the killings of ORG and PERSON and that he did not know PERSON , PERSON , PERSON or PERSON .

On DATE PERSON made a statement in prison to a public prosecutor . He complained that the press which supported the ORG were targeting him and publishing biased articles against him . DATE he had been in GPE and , on hearing that his grandfather had died , he had gone to ORG for DATE .

On DATE the gendarmes reported that PERSON was not to be found in his home village of PERSON . He had left DATE previously .

In a report dated DATE the police informed the ORG public prosecutor , in response to a request to apprehend PERSON , that the address given for him , No . CARDINAL PERSON , did not exist and the business address was not in their jurisdiction . In a report dated DATE , the gendarmes reported that they had investigated his address in their jurisdiction but that they had been unable to discover his whereabouts .

The contents of the investigation file were supplied to ORG .

The applicant provided the ORG with a copy of the so - called “ GPE report ” , produced at the request of the Prime Minister by PERSON Kutlu Savaş , Vice - President of ORG within ORG . After receiving the report in DATE , the Prime Minister made it available to the public , although CARDINAL pages and certain annexes were withheld .

NORP The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report . It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south - east GPE and which tended to confirm the existence of unlawful dealings between political figures , government institutions and clandestine groups .

NORP The report analyses a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of “ informants ” supposedly serving the ORG , and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result , particularly in the drug - trafficking sphere . The report made reference to a certain PERSON , also known as PERSON or “ LOC ” , detailing his involvement in unlawful acts in the south - east and his links with the MİT ( the NORP intelligence service ) :

“ ... Whilst the character of PERSON , and the fact that he along with the group of confessors he gathered around himself , is the perpetrator of offences such as extortion , seizure by force , assault on homes , rape , robbery , murder , torture , kidnapping , etc . , were known , it is more difficult to explain the collaboration of the public authorities with this individual . It is possible that a respected organisation such as ORG may use a lowly individual ... it is not an acceptable practice that ORG should have used LOC several times ... LOC , who carried out activities in GPE under the name of ORG , in GPE under the name of ORG and used the name PERSON PERSON , is an individual whose activities and presence were known both by the police and MİT ... As a result of the ORG 's silence the field is left open to the gangs ... [ p. CARDINAL ] .

... PERSON was also associated with GPE , an organisation within the gendarmerie , which used large numbers of protectors and confessors [ p. CARDINAL ] .

In his confession to ORG , ... PERSON ... had stated that PERSON [ p. CARDINAL ] would say from time to time that he had planned and procured the murder of PERSON [ ] and other partisans from the mafia and the ORG who had been killed in the same way ... The murder of ... PERSON [ ] had also been planned and carried out by PERSON [ p. CARDINAL ] .

All the relevant ORG bodies were aware of these activities and operations . ... When the characteristics of the individuals killed in the operations in question are examined , the difference between those NORP supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms . These factors also operated in the murder of PERSON , a smuggler and pro - ORG activist . They equally applied to PERSON , ORG and ORG . The sole disagreement we have with what was done relates to the form of the procedure and its results . It has been established that there was regret at the murder of PERSON , even among those who approved of all the incidents . It is said that PERSON was not involved in any armed action , that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake . ( Information about these people is to be found in DATE [ ] ) . Other journalists have also been murdered [ page CARDINAL ] [ ] . ”

The report concludes with numerous recommendations , such as improving co - ordination and communication between the different branches of the security , police and intelligence departments ; identifying and dismissing security force personnel implicated in illegal activities ; limiting the use of confessors ; reducing the number of village guards ; terminating the use of ORG outside the south - east region and incorporating it into the police outside that area ; opening investigations into various incidents ; taking steps to suppress gang and drug - smuggling activities ; and recommending that the results of ORG inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken .

The applicant provided this DATE report into extra - judicial or “ unknown perpetrator ” killings by ORG of ORG . The report referred to CARDINAL unsolved killings , of which CARDINAL involved journalists . It commented on the public lack of confidence in the authorities in the south - east region and referred to information that ORG had a camp in the Batman region where they received political and military training and assistance from the security forces . It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings .

The applicant provided the ORG with a copy of Soner PERSON 's book The Confessions of Major Cem Ersever ( summarised in the Commission report , LAW ) as well as articles from PERSON and other newspapers concerning contra - guerrillas ( see paragraphs CARDINAL - CARDINAL of the ORG 's report ) .

Evidence was heard from CARDINAL witnesses by Commission delegates in CARDINAL hearings held in GPE and GPE . These included the applicant , PERSON Can , the wife of ORG , NORP , PERSON , PERSON , a journalist , PERSON , the public prosecutor from ORG , PERSON , the public prosecutor from GPE , Judge PERSON , prosecutor at ORG , PERSON , the ORG chief of police , PERSON , the Pertek district gendarmerie commander and PERSON , an ex - member of the ORG turned confessor .

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor 's authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person 's life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender 's superior .

DATE . Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL ) , provides :

“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) .


The applicant , a NORP national residing at PERSON in GPE , is a pensioner .

DATE he rented a room in GPE in GPE from a PERSON . During this period he told her that his wife was very ill and was undergoing treatment in an FAC hospital . He also claimed that he was expecting to receive payments under a pension scheme in GPE . As a result PERSON handed over to him MONEY and waived the rent of QUANTITY .

Purportedly in the expectation of receiving the above - mentioned payments , the applicant opened an account at a bank in GPE on DATE and , on DATE , PERSON gave him a further QUANTITY .

On DATE , PERSON reported the matter to the police . ORG ) asked , on DATE , the investigating judge of ORG ( PERSON ) to institute a preliminary investigation concerning the applicant on suspicion of fraud as a recidivist offender . In addition , the prosecutor requested the judge to order his detention on remand on the ground that there was a risk of his absconding .

The judge granted these requests on DATE . Prior to this , the applicant had been detained since DATE , pending extradition to GPE . On DATE he was questioned by the investigating judge .

The latter sent , on CARDINAL DATE , a rogatory letter ( PERSON ) to the PERSON am GPE ORG ( Bezirksgericht ) asking it to put some specific questions to PERSON as a witness . ORG Judge , PERSON , did so on DATE .

On DATE , ORG dropped CARDINAL of the fraud charges against the applicant . As a result , ORG no longer had jurisdiction . Accordingly , the prosecutor asked to have the case , which now concerned only the alleged fraud against PERSON , transmitted to ORG which had jurisdiction to deal with offences of lesser gravity , that is , according to LAW ) , offences punishable by a fine or a term of imprisonment not exceeding DATE . Moreover , on DATE , the prosecutor , in pursuance of LAW , called for the applicant ’s conviction on charges of fraud .

At the time when the case was referred to ORG the case - file contained mainly the following items :

- criminal information to the GPE police ;

- the applicant ’s criminal record in GPE ;

- the order made by ORG investigating judge for the applicant ’s detention on remand ;

- a record of the investigating judge ’s interrogation of the applicant ;

- a record of ORG Judge , PERSON interrogation of witness , PERSON ;

- letters from the applicant to the prosecution , asking it to drop the charges , and to ORG , complaining about his detention on remand ;

- a note to the effect that the applicant had withdrawn his complaint against detention .

During the ensuing period , Judge PERSON took the following steps in the applicant ’s case :

In a letter to LAW ( PERSON ) in GPE , she enquired why a prison sentence imposed on the applicant had been partly suspended . She received a reply on DATE .

She sent the case - file to ORG together with a rogatory letter asking it to question the applicant in order to establish whether his expectations as regards the pension payments allegedly due in DATE , had been justified and to obtain details of his pension or any other revenue from insurance policies .

On DATE , she telephoned the PERSON bank to establish whether any payments had been entered on the account opened by the applicant ( see paragraph CARDINAL above ) ; by letter of the same date the bank replied that no payment had so far been recorded .

In addition , she telephoned ORG of GPE and of ORG ( GPE ) in order to find out whether the applicant had ever applied for or received a pension . According to a note in the case - file , prepared by Judge PERSON on DATE , the first of these companies had replied that , under the reference number which the applicant had indicated , a pension had never been requested by him and that no pension benefits had been paid to him ; the other company had stated that he had not been granted a pension .

On DATE , she set down the trial hearing for DATE ( Article CARDINAL ( CARDINAL ) of LAW ) .

On DATE a hearing was held by the PERSON am GPE ORG , with Judge PERSON sitting as a single judge . ORG ( GPE ) was present , but the applicant ’s lawyer at the time did not appear although he had been summoned . The court heard the applicant first , who claimed that he was innocent . It then heard PERSON as a witness and a police officer replacing a colleague who had visited her house after the applicant ’s arrest . Various documents were exhibited ( dargetan ) , including :

- the complaint to the police ;

- the results of the police investigations in the case ;

- the applicant ’s criminal record ;

- the case - file of ORG ( see paragraph CARDINAL above ) ;

- the information provided by the PERSON bank and the CARDINAL NORP insurance companies and a letter from a third such company .

After the court had finished taking evidence , the prosecutor invited it to find the applicant guilty . The applicant asked the court to ascertain that , on DATE , he had applied to a NORP insurance company for a pension . The court dismissed this request , finding that the facts in the case were sufficiently clear .

By judgment of DATE , ORG acquitted the applicant of the fraud charge concerning the MONEY which he had received from PERSON on DATE but convicted him of having fraudulently induced her to hand MONEY to him and to waive the rent of QUANTITY ; it sentenced him to CARDINAL months’ imprisonment and ordered him to pay PERSON MONEY . The periods of detention pending extradition and the trial were deducted from the sentence .

The judgment , which was signed by Judge PERSON , was founded inter alia on PERSON testimony as well as the information obtained from the bank and the insurance companies .

The applicant appealed against his conviction and sentence to ORG . He complained , inter alia , that in the proceedings before ORG , the case had been investigated and tried by the same person .

On DATE ORG ( Ratskammer ) of ORG dismissed several requests for release submitted by the applicant on CARDINAL , DATE and DATE .

In a judgment of CARDINAL DATE , ORG , composed of CARDINAL members who had previously taken the above - mentioned decision of DATE , dismissed the appeal . As to his complaint described in paragraph CARDINAL above , the judgment stated :

" As a reply thereto , reference should be made to the prevailing legal opinion derived from ORG CARDINAL and CARDINAL of LAW , according to which the trial judge in ORG proceedings may also undertake preliminary inquiries and a judge who has carried out such inquiries will therefore not be excluded from the trial ... .

Equally , if a judge acts in a criminal case as a judge ... under a rogatory letter , this will not prevent him from participating at the trial ... . It is not necessary for the [ ORG ] in the present case to make a thorough examination of the extent to which this legal opinion , which is generally applied , corresponds to Article CARDINAL ( article CARDINAL ) of the Convention ... , since the accused , who became aware of the ( alleged ) ground of nullity at the latest at the beginning of the trial , did not ... immediately raise this ground before the PERSON am GPE ORG . "

In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file ( FAC ) on a complaint , the public prosecutor may have preliminary inquiries ( FAC ) carried out by the investigating judge , ORG and the police authorities ( LAW ( CARDINAL ) of LAW ) .

Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution , he shall either apply for the institution of a preliminary investigation ( Voruntersuchung ) or file a formal accusation ( PERSON , LAW ) . However , in ORG proceedings there is no formal process of investigation and no special procedure of committal for trial : all that is required is a written or oral application from ORG seeking the imposition of a penalty on the person concerned ( Antrag auf gesetzliche ORG , Article CARDINAL ( CARDINAL ) ) .

Pursuant to LAW , taken together , ORG may carry out preliminary inquiries , but not formal preliminary investigations like ORG . When undertaking preliminary inquiries a ORG judge must in principle observe the same rules as those that apply to an investigating judge of ORG during preliminary investigations . However , according to LAW , which sets out exceptions to this principle , ORG judge has narrower powers with respect to such matters as pre - trial detention , arrest and search for documentary evidence .

Under LAW , ORG judge may order the release of a person held on remand , subject to agreement with ORG that the grounds for detention have ceased to exist .

ORG judge shall set a date for the hearing after such preliminary inquiries as may be necessary have been made ( Article CARDINAL ( CARDINAL ) ) .

Article CARDINAL ( CARDINAL ) of LAW , which provides that an investigating judge may not participate in the trial of the case , does not apply to ORG proceedings . In such proceedings , preliminary inquiries are , according to established court practice , carried out by the trial judge .

A judge who has acted under a rogatory letter in a case , but not as an investigating judge , is not thereby excluded from trying the same case ( see the collection of ORG decisions SSt CARDINAL ) .