The applicant is a NORP national , born in DATE , and currently serving a prison sentence in the GPE . He is represented before the ORG by PERSON PERSON , a lawyer practising in GPE .

On DATE , the applicant and PERSON were present in the home of PERSON On DATE , PERSON was killed by CARDINAL stab wound in his chest . In TIME DATE , the applicant went the police and stated that he had killed PERSON It appeared that , when making this statement , the applicant had an alcohol level of QUANTITY in his blood .

On DATE , the police arrested the co - suspect PERSON , whose statement of DATE to the police confirmed the applicant 's account . The police further took samples of and secured material found under the CARDINAL suspects ' finger nails . The police further seized and secured the suspects ' coats and outer layer of their clothes . In the course of his pre - trial detention , the applicant withdrew his earlier statement that he had killed Mr M. By summons of DATE , the applicant was summoned to appear before ORG ( Arrondissementsrechtbank ) on charges of murder .

By letter of DATE , the applicant 's lawyer , referring to previous telephone messages , requested the investigating judge ( rechter - commissaris ) dealing with the case to provide him with further information in relation to the samples taken by the technical criminal investigation department ( technische recherche ) as well as the secured clothes of the applicant and GPE

In the course of a hearing held on DATE before ORG , the defence stated that there were CARDINAL persons in the victim 's home , namely GPE , PERSON and the applicant and that their statements were not consistent . The defence requested that the case be referred back to the investigating judge in order to hear PERSON , PERSON and QUANTITY police officers involved in the investigation . ORG further took evidence from the applicant .

After having deliberated , ORG decided to refer the case back to the investigating judge in order to take evidence from the CARDINAL witnesses proposed by the defence . On CARDINAL , DATE and DATE , statements were taken from the witnesses and the applicant by the investigating judge .

On DATE , the applicant 's lawyer was told by the public prosecutor that it was unclear what had happened with the material taken from the suspects ' finger nails and of their clothes and that , therefore , no forensic reports on these materials would be submitted to the court .

On DATE , a further hearing took place before ORG . As the court 's composition had changed , it fully recommenced its examination . It took evidence from the applicant , considered the other evidence before it and heard the parties ' final pleadings .

By judgment of DATE , ORG convicted the applicant of murder and sentenced him to DATE imprisonment . The applicant filed an appeal with ORG ( Gerechtshof ) .

In the course of a hearing held on DATE , ORG heard the applicant as well as the witnesses PERSON and PERSON The latter witness stated , inter alia , that he had been convicted of being an accessory to the murder of M and that he had not filed an appeal against this conviction . ORG further heard the parties ' final pleadings .

In its judgment of DATE , ORG convicted the applicant of murder and sentenced him to DATE imprisonment . On the basis of the findings of a psychiatric report on the applicant , ORG accepted that the applicant had to a certain extent a diminished responsibility and took this into account in the determination of its sentence .

As to the argument submitted by the defence that the prosecution should be declared inadmissible as the clothes and the samples taken from material under the fingernails of the suspects had gone lost thereby rendering a - for the applicant possibly exculpating - forensic examination thereof impossible , ORG held that :

< Translation >

“ The formal police records mention that , pending a possible further investigation , the secured items at issue have been entrusted to the technical criminal investigation [ department ] of the GPE - Rijnmond Regional Police . It appears from appendices to counsel 's written pleadings that the suspect 's former defence counsel has requested the investigating judge to have these materials examined . A reply to that request is not included in the documents . The written pleadings of the defence counsel in the first instance proceedings only mention that this counsel has been told by the public prosecutor “ that no clarity can be obtained what [ has ] happened with this ” .

Assuming that the materials referred to have in fact gone missing , the ORG considers this indeed regrettable , but , noting the other investigation results contained in the case - file , not an omission of such importance that this should result in the sanction of inadmissibility of the prosecution . The objection is therefore rejected . ”

ORG based the applicant 's conviction on his statement of DATE to the police and his statement of DATE to the investigating judge , the statement of CARDINAL DATE by GPE to the police , the formal police records of the finding of the victim 's body , and the report on the autopsy of the victim 's body .

The applicant 's subsequent appeal in cassation was rejected by ORG ( PERSON ) on DATE . As to the applicant 's complaint of the rejection by ORG of his argument that the prosecution should be declared inadmissible , ORG held at the outset that unlawful activities of criminal investigation officials could under circumstances result in such a serious violation of the principle of a fair trial that this should lead - also in cases where there is sufficient other lawfully obtained evidence - to the inadmissibility of the prosecution . However , such a far reaching sanction could only follow where it would concern serious violations of those principles by , deliberately or with gross negligence , disrespecting the suspect 's interest in his right to a fair hearing of his case . Due to the impossibility of giving a general rule , this question needed to be examined on a case by case basis .

Turning subsequently to the instant case , ORG held that :

< Translation >

“ ... ORG has at the outset - correctly - expressed that the circumstance that the secured traces have gone lost violates the principles of fair proceedings . ORG further held that the present case does not concern a case of a serious violation of the principles of fair proceedings as a result of which , deliberately or with gross negligence , the suspect ' interest in his right to a fair trial of his case has been disrespected This finding does not disclose an incorrect conception of the law and is also not incomprehensible taking into consideration :

a ) that it has not been argued and that the case - file contains nothing from which it could be concluded that the fact the investigation material has gone lost is the result of a deliberate action and

b ) that ORG has apparently assessed this violation [ of the principles of fair proceedings ] in the light of the harm that this , also taking into account of what the defence has submitted on this point , could reasonably have caused the interests of the defence , in which [ assessment ] ORG with [ the phrase ] “ the investigation results contained in the case - file ” apparently referred to the facts and circumstances on which it based the conviction ( “ voor het bewijs redengevend geachte feiten en omstandigheden ” ) as set out in the evidence described under CARDINAL . and the possibly exculpating material contained in the case - file .

The complaint therefore fails . ”


The applicant was born in DATE and lives in PERSON .

NORP In DATE the applicant requested ORG “ GPE ” ( the “ Association ” ; Державно-кооперативне об'єднання по агропромисловому будівництву “ NORP ” ) , his employer at the material time , to grant him and his family priority in the allocation of housing to employees . Subsequently his request was allowed on account of the fact that his father had fought and perished in World War II .

In DATE the ORG attributed the applicant apartment no . CARDINAL in a new building being constructed by several investors , including the ORG . However , in DATE the ORG transferred this apartment to another investor , as the value of its contribution into the construction project had been reassessed at a lower level .

On DATE the ORG transferred its assets to ORG “ Vinelevatorbud ” ( the “ Company ” ; CARDINAL підприємство “ LOC ) and ceased carrying out any business . However , the liquidation formalities were not completed .

On DATE the applicant instituted civil proceedings in the Staromisky District Court of Vinnytsya ( the “ ORG ” ; ORG районний суд ORG ) against the ORG , asserting his rights to apartment no . CARDINAL .

DATE the court adjourned CARDINAL hearings on account of the ORG 's absence , and CARDINAL on account of the court 's relocation to another building .

On DATE ORG allowed the applicant 's claims and allocated him apartment no . CARDINAL , having found that the re - distribution of the apartment between the investors was flawed and that the applicant 's family were entitled to priority allocation of housing . The ORG lodged an appeal in cassation .

On DATE ORG ( the “ ORG ” ; GPE обласний суд ) quashed this judgment , having found that the analysis of facts and law by ORG was insufficient and remitted the case to ORG for a fresh consideration .

On DATE ORG dismissed the applicant 's claims , having found that the re - distribution process was not in breach of applicable law . The applicant lodged an appeal in cassation .

On DATE ORG quashed this judgment and remitted the case to ORG for a fresh consideration . In particular , it found that ORG analysis was insufficient .

DATE ORG held QUANTITY hearings , CARDINAL of them being adjourned on account of the parties ' failure to appear .

On DATE ORG found that , since the applicant was entitled to priority housing , the ORG should have redistributed another apartment to the investors . The court further obliged the ORG to provide the applicant with an apartment of equal value at its own expense . This judgment was not appealed against and became final in DATE .

On an unspecified date ORG initiated the enforcement proceedings in respect of the judgment of DATE and requested ORG to provide instructions as to the execution of the judgment , given that the ORG had transferred all its assets to the Company .

On DATE ORG found the Company to be the ORG 's successor in respect of the judgment of DATE and ordered it to pay the applicant CARDINAL NORP hryvnyas ( ORG ) instead of providing an apartment . This decision was not appealed against and became final in DATE .

On DATE the Presidium of ORG quashed the ruling of DATE following a “ protest ” instituted by the court 's President and ordered ORG to re - consider the request of ORG . In particular , the ORG noted that ORG had not requested any liquidation documents and had insufficiently explored whether the ORG had been succeeded by the Company . Furthermore , in breach of applicable law , the court had neither heard nor summoned the parties concerned .

On DATE ORG found that the ORG had not been formally liquidated and ordered it to purchase an apartment for the applicant . This decision became final in DATE .

On DATE the applicant petitioned ORG to re - open the proceedings in connection with a “ newly disclosed circumstance ” ( перегляд за нововиявленими обставинами ) , namely that the ORG had , in fact , ceased to exist .

On DATE ORG allowed the applicant 's petition . It annulled the judgment of DATE and remitted the case for a fresh consideration , having summoned the Company as the defendant in the ORG 's stead .

On DATE ORG allowed the applicant 's claims and ordered the Company to provide him with an apartment . The Company appealed in cassation .

On DATE ORG , by a final decision , upheld the judgment of DATE .

On DATE the ORG of ORG quashed the judgment of CARDINAL DATE , following a “ protest ” lodged by the Deputy President of ORG , and remitted the case for a fresh consideration .

DATE ORG adjourned CARDINAL hearings , CARDINAL of the adjournments being attributable to the applicant ( amendment of claims ) .

On DATE ORG partly allowed the applicant 's claims . It obliged the ORG and the ORG jointly to provide an apartment to the applicant . The ORG appealed .

On DATE ORG quashed this judgment and remitted the case for a fresh consideration , having found that ORG had still failed to explore a number of issues , including that of succession between the ORG and the Company .

On DATE ORG dismissed the applicant 's claims , having found that the defendants had no apartments for distribution and the applicable law did not provide for monetary compensation in this event . Moreover , the applicant no longer qualified for priority treatment either by the ORG or the Company , since he no longer worked for them and his living conditions were satisfactory . The applicant appealed .

On DATE ORG upheld this judgment . The applicant appealed in cassation .

On DATE ORG returned the applicant 's appeal in cassation as “ not lodged ” on account of his failure to abide by the court 's order to pay a court fee . The applicant appealed , seeking to be relieved of the obligation to pay the fee .

On DATE ORG dismissed the applicant 's appeal against the decision of CARDINAL DATE . The applicant did not appeal in cassation .


Mr PERSON , a university lecturer in law , is a NORP citizen and lives in PERSON in GPE .

From TIME the applicant held a power of attorney from his adoptive mother , PERSON , and , on DATE , he was appointed administrator ( god man ) for her friend , PERSON . As both PERSON and PERSON became unable to care for themselves because of their advanced age , they were placed in a nursing home by GPE . The nursing home charged them for medical care and the applicant effected the relevant payments .

When he subsequently realised that the nursing home was a charitable association , he stopped paying the fees on the ground that the institution in question was not entitled to charge them . A dispute arose between the applicant and the nursing home and the latter brought a court action .

On DATE , while the above - mentioned proceedings were pending , ORG the Board " ) in GPE asked ORG ( tingsrätten ) in the same town to appoint an administrator for PERSON . The applicant , on his own and PERSON ’s behalf , filed a counter - claim and sought the immediate dismissal of the members of ORG . Referring to Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , he asked for a public hearing .

On CARDINAL occasions in the course of the ensuing proceedings the applicant was ordered by the relevant courts , under LAW , LAW ( rättegångsbalken ; see paragraphs CARDINAL below ) , to pay fines for improper ( otillbörliga ) statements made in his written observations . The orders were made in the form of decisions ( beslut ) . He appears to have paid the fines .

In his written observations of CARDINAL DATE to ORG he stated , inter alia , that the ORG could be described as " a basket of municipal rotten eggs of different colours with a common denominator and overriding ideology , namely fascism " . Accordingly , the rights and legitimate interests of individuals within the municipality - if these were taken into account at all , so intoxicated were the authorities with power - were never given proper consideration amounting to an effective examination of the needs of the community . As a result , such needs were defined by so - called democratically elected " peoples’ courts " - officially named " boards " and " councils " of the municipality of GPE - the members of which " consist[ed ] to a surprising degree of the local public mob " or " pure rotten eggs " .

ORG , considering the applicant ’s statements " improper " within the meaning of LAW , LAW , ordered him , at a sitting on CARDINAL DATE , to pay a fine of MONEY . It did not hold a hearing and adjourned its examination of the merits of the case ( see paragraph CARDINAL below ) .

On DATE the applicant appealed from the above decision to ORG for Western Sweden ( ORG NORP ) . He asked for an oral hearing and complained of not having had the possibility to defend himself orally before ORG .

In his written observations , the applicant informed ORG that , should it refuse his demands , he intended to lodge a further appeal ( presumably to ORG ) in order to bring his case to the Commission in GPE or to ORG in GPE . He expressed the opinion that the likelihood of his being granted leave to appeal was very small in view of the " generally lethargic [ , ] ... lax and allergic attitude of the final instance " , which resulted from the " anti - human rights indoctrination received by its members during their many years’ service in public administration " .

On DATE , without holding an oral hearing , ORG confirmed ORG decision and ordered the applicant to pay a further fine of MONEY , finding that his written observations of CARDINAL DATE also contained improper remarks prejudicing the good order of court proceedings .

The applicant then applied to ORG for leave to appeal , alleging that the lower and appellate courts had not only denied him a fair trial but had also violated his right to freedom of expression . Such leave was refused on DATE .

In the meantime , on DATE , ORG , without holding a hearing , accepted the applicant ’s and PERSON objection against the ORG ’s request for the appointment of an administrator , but rejected their demand for the dismissal of the members of ORG ( see paragraph CARDINAL above ) .

On DATE the applicant , on his own and PERSON behalf , lodged an appeal with ORG , seeking to have the case referred back to ORG for reconsideration , as well as an oral hearing before the lower court .

On this occasion , he asked that his case be heard by a specially composed ORG as he wished to have certain members disqualified from sitting . He alleged that CARDINAL of its members , whom he named , had a " far - reaching tendentiously fascist way of presiding " over the court and was " grossly partial in favour of municipal interests , collegiate corruption and abuse of public power through high - handedness , terror and reactionary principles " . When composed of the said judge and certain other members , who were also mentioned by name , ORG had been generally autocratic and had applied the law in a manner which had been heavily in favour of the municipal authorities .

On DATE , in a separate decision from the one mentioned in paragraph CARDINAL above , ORG rejected the appeal . In addition , it again ordered the applicant to pay MONEY for improper remarks in his appeal . It did not hold a hearing .

The applicant , on his own behalf and on that of PERSON estate ( the latter had died on DATE ) , applied to ORG for leave to appeal , which was refused on DATE ( in a different decision from that referred to in paragraph CARDINAL above ) .

Pursuant to LAW ( brottsbalken ) :

" A crime ( brott ) is constituted by any act for which the present code or other LAW provides punishment ( straff ) as stated below . "

According to LAW , a reaction to crime ( påföljd för brott ) is understood in the code to mean the ordinary forms of punishment , notably fines and imprisonment .

LAW , LAW , as applicable at the material time , read :

" A person who , at a court sitting , disturbs the proceedings or takes photographs in the courtroom , or fails to comply with directions or prohibitions imposed LAW , Article CARDINAL , shall be ordered to pay a fine . The same punishment ( straff ) may be imposed on a person who , in his oral or written observations to the court , expresses himself in an improper manner . "

LAW , Article CARDINAL , provides inter alia that the presiding judge may order a person who disturbs the proceedings or behaves in an improper manner to leave the courtroom .

Fines imposed under LAW could not exceed MONEY ( Article CARDINAL in LAW , as applicable at the relevant time ) , unlike ordinary criminal - law fines which were income - based .

The question as to which court has jurisdiction in cases concerning offences against the good order of court proceedings ( rättegångsförseelser ) is governed by LAW . On the procedure in criminal cases " ( " II . Om rättegangen i brottmål " ) - of LAW . Under LAW it is for the court sitting in the proceedings - whether civil , criminal or other - in which the improper conduct has occurred to examine of its own motion whether it constitutes such an offence .

LAW of the code ) reads :

" The court may not examine a question of criminal liability in the absence of a criminal charge . However , it may deal with issues of offences against the good order of court proceedings without a charge being brought . "

In the proceedings under consideration , the courts followed the procedure laid down in LAW on ORG ( lagen om handläggning av domstolsärenden CARDINAL - " LAW " ) . Section CARDINAL provides :

" The present Act shall apply to matters relating to the administration of justice with which the ordinary lower courts must deal of their own motion or on application and which , according to statute or other regulation , do not fall to be examined under the procedure provided for in civil or criminal cases ; however , it shall not apply to questions of punishment or other consequences of a criminal offence . "

If the court in question finds that a person has contravened LAW , LAW , it may immediately order him to pay a fine . Such a measure is not entered in the police register .

Pursuant to paragraph CARDINAL of section CARDINAL of LAW , a hearing may be held if the court in question considers that the person concerned should be heard orally . Should the court decide to hold one , it is , pursuant to section CARDINAL of LAW , governed by the same provisions as apply to hearings in civil cases .

A fine imposed LAW , LAW may , subject to the conditions laid down in LAW on GPE ( bötesverkställighetslagen CARDINAL - " LAW " ) , as amended in DATE ( DATE : CARDINAL ) , be converted into a prison sentence .

According to sections CARDINAL and QUANTITY of LAW , ORG must , upon the request of the public prosecutor , convert - by way of a decision ( beslut ) - uncollected fines into a term of imprisonment if it is obvious that the person concerned has intentionally failed to pay them or if there are other special reasons in the public interest for so converting them . A term of imprisonment imposed on this ground should be not DATE and not DATE .

In proceedings concerning a request for the conversion of a fine into a prison sentence , ORG must summon the prosecution and the defendant to appear at a hearing ( section CARDINAL ) .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant lives in GPE .

The applicant is a practitioner of general medicine . He has an individual contract ( ORG ) with ORG ( ORG ) . The applicant has also obtained special diplomas in the areas of echocardiology and sonography and performs these types of examination on his patients .

CARDINAL part of the individual contract between the applicant and ORG is LAW Honorarordnung ) which states that certain types of examinations will only be reimbursed if they are performed by a specialist doctor .

ORG refused to reimburse echocardiologic and sonographic examinations as the applicant was not a specialist doctor but a general practitioner .

On DATE the applicant claimed payment for echocardiologic and sonographic services amounting to MONEY ( ORG ) for DATE before ORG ( Paritätische Schiedskommission ) ; on DATE he submitted another claim for payment amounting to ORG CARDINAL,CARDINAL.CARDINAL for DATE ; at an unknown date this claim for payment was increased to ORG CARDINAL . On DATE the applicant submitted a claim for payment of ORG CARDINAL,CARDINAL.CARDINAL for DATE .

ORG held hearings on DATE and DATE .

As ORG did not reach a decision because of a tie , the applicant filed an application for transfer of jurisdiction ( PERSON ) to ORG Landesberufungskommission ) on DATE and DATE , respectively .

Meanwhile , on DATE the applicant had claimed payment for echocardiologic and sonographic services amounting to ORG CARDINAL,CARDINAL.CARDINAL for DATE . At DATE this claim was reduced to ORG CARDINAL,CARDINAL.CARDINAL .

On DATE ORG refused to grant the applicant ’s claims concerning DATE and DATE .

On DATE the applicant complained to ORG ) which , on DATE , set aside the decision of ORG of DATE . It found that the applicant ’s right to have his case heard by an impartial tribunal had been violated as CARDINAL of the assessors nominated by ORG had negotiated the disputed clause of LAW . Consequently , ORG did not appear independent and impartial .

As regards the claim for DATE , the applicant had filed an application for transfer of jurisdiction to ORG on DATE owing to a tie in ORG . As at that time the applicant ’s complaint against the decision of CARDINAL DATE was pending before ORG , ORG decided to stay the proceedings until ORG had given its decision . On an unknown date ORG decided to join the proceedings in respect of all the applicant ’s claims , that is to say ; those for DATE and for DATE .

After ORG had set aside ORG decision of CARDINAL DATE , the newly composed ORG again rejected the applicant ’s claims on DATE .

The applicant complained to ORG that there had not been a public hearing . ORG set aside the contested decision for the lack of a public hearing in a decision of DATE .

On DATE ORG held a public hearing . On DATE ORG rejected the applicant ’s claims , holding that it was up to the parties to the general agreement to limit direct reimbursement of certain services to specialist doctors . Such limitations served the planning and administration of affordable healthcare services and were objectively justified .

On DATE the applicant complained to ORG , alleging a breach of the principle of equal treatment and lack of independence and impartiality of ORG .

On DATE ORG found no violation of the right to a fair hearing and upheld the contested decision . It held that the assessors of ORG were independent in exercising their duties and that no circumstances giving rise to doubts about their impartiality or independence had arisen in the present case . In particular , none of the assessors of ORG had been involved in the conclusion of the general agreement or of the individual contract at issue in the proceedings . The mere fact that the assessors were members of ORG which had provisions of the same content in their general agreements was not sufficient to cast doubt on their impartiality . This decision was served on counsel on DATE .

NORP The relevant provisions of LAW ( Allgemeines Sozialversicherungsgesetz ) read as follows :

“ CARDINAL . ( CARDINAL ) Relations between the health insurance boards on the one hand and independent medical practitioners and group practices on the other shall be governed by general agreements to be concluded with the local medical associations by the ORG [ of ORG ] on behalf of the insurance boards . General agreements shall require the consent of the health insurance boards on behalf of which they are concluded . ORG may conclude the general agreements on behalf of the medical associations concerned , with their consent ...

( CARDINAL ) The content of the general agreement shall be incorporated in the individual contract between the health insurance board and the doctor or group practice . Any provisions of the individual contract which are contrary to the provisions of the general agreement in force in the place in which the doctor or group practice is established shall be devoid of legal effect . ...

( CARDINAL ) In order to arbitrate and give a decision on disputes of a legal or factual nature arising in connection with an individual contract , a ORG shall be established in each Land in individual cases . ...

( CARDINAL ) ORG shall consist of CARDINAL members , CARDINAL of whom shall be appointed by the local ORG and CARDINAL by ORG , which is a party to the individual contract . ...

( CARDINAL ) An appeal can be lodged with ORG against a decision given by ORG . ... ”

Section CARDINAL(CARDINAL ) governs the composition of ORG :

“ CARDINAL . ( CARDINAL ) For each Land , a permanent ORG shall be established . It shall consist of a professional judge as Chairman and of CARDINAL assessors . The Chairman shall be appointed by the Federal Justice Minister . The Chairman must be a judge who , at the time of his appointment , is working at a court trying cases under labour and social insurance legislation . The Federal Minister of ORG shall appoint CARDINAL assessors upon proposal of ORG respectively and CARDINAL upon proposal of ORG Representatives and employees of ORG and members and employees of ORG who are parties to the general agreement on which the individual contract subject to the dispute is based , must not be assessors in the respective proceedings . ”

The above version of CARDINAL ) of LAW entered into force on DATE . Before that date ORG and ORG each appointed CARDINAL assessors to ORG and there had been no provision that members and employees of the parties to the general agreement would be excluded .

NORP Under section CARDINAL(CARDINAL ) of LAW , ORG decides by a simple majority of votes ; abstention from voting is not possible .

NORP The assessors of ORG are appointed for a renewable period of DATE . They are not subject to the hierarchical authority of the bodies which proposed their appointment ( LAW ) .

Decisions of ORG are excluded from the competence of ORG ( Verwaltungsgerichtshof ) by LAW .


The applicant , Mr PERSON , claims to be a ORG national who was born in DATE . At the time when the application was lodged he was held in detention in PERSON . He is represented before the ORG by PERSON P.A. Blaas , a lawyer practising in ‘ s - Hertogenbosch . The respondent Government are represented by their Agent , Mr R.A.A. PERSON , of ORG .

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

The applicant entered the GPE DATE before the events complained of . He lodged a request for asylum and was met with a refusal . He remained in the GPE as an illegal alien .

On DATE the applicant was apprehended . An officer of ORG ) , acting on behalf of the Minister for ORG and Integration ( Minister PERSON ) and in accordance with LAW ( Vreemdelingenwet ) , placed the applicant in GPE detention ( vreemdelingenbewaring ) for expulsion purposes on public order grounds , namely the suspicion that the applicant was seeking ways to evade expulsion as he had no identity papers , he had failed to leave the country within the time allowed him for that purpose , he had no fixed abode , was suspected of having committed a criminal act , had no adequate means of subsistence and was not lawfully staying in the GPE .

ORG of The Hague was notified by the Minister of the detention order on DATE . In accordance with LAW , this counted as an automatic appeal .

This notification - appeal was heard before ORG on DATE . On DATE a single - judge Chamber of ORG gave a decision dismissing the appeal . The decision noted that the applicant had relied on ORG judgment in the case of PERSON v. GPE ( nos . CARDINAL and CARDINAL , CARDINAL DATE ) , but held that , given the provisions of LAW , there was an adequate guarantee that the judge would take a speedy decision about the lawfulness of the applicant ’s detention and order his release if his detention was found unlawful . Given the reasons on which it was based , the applicant ’s placement in aliens detention was found justified , and it was further found that the GPE authorities were pursuing the applicant ’s effective removal from the GPE with the required diligence , given that in the meantime the procedure for obtaining a laissez - passer from the ORG authorities had been set in motion .

The applicant lodged an appeal against the decision of DATE with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) on DATE . Again relying on the ORG ’s Shamsa judgment , he only raised CARDINAL complaint , namely that ORG had unjustly failed to acknowledge that persons placed in GPE detention must – like persons detained in the context of criminal proceedings – be heard promptly , that is DATE and TIME , before an independent tribunal . As he had only been heard after DATE , ORG should have found this delay too long and , consequently , should have ordered his release .

On DATE , following a hearing held on DATE , ORG dismissed the further appeal and upheld ORG decision . This ruling , in so far as relevant , reads :

“ The appellant has been placed in GPE detention for expulsion purposes , in accordance with LAW ( a ) of LAW . Therefore and on a statutory basis , an expulsion procedure within the meaning of LAW ( f ) of the LAW was pending against him . Pursuant to LAW , the placement in GPE detention at issue has been submitted for examination before ORG within a delay of DATE .

The judgment of ORG [ in the case of PERSON v. GPE ] of CARDINAL DATE , invoked by the [ appellant ] , concerns the continued detention of aliens against whom an expulsion or extradition procedure was no longer pending , for which continued detention there was no legal basis . Consequently , the detention had lost its lawful character and thus did not fall within the scope of CARDINAL of the permissible grounds of deprivation of liberty as listed in an exhaustive manner in LAW . In this light , ORG understands the judgment and in particular the reasoning set out in paragraph CARDINAL in the sense that the Court – in assessing such detention – incorporates the rationale of Article CARDINAL taken as a whole and , in that context , also considers relevant the guarantees for legal protection and legal certainty as incorporated in the third paragraph of [ LAW ] . Noting this as well as the [ decisions on admissibility taken by ] ORG in the case PERSON GPE [ no . MONEY , DATE ] and ORG and Others v. GPE [ CARDINAL , DATE ] , ORG is of the opinion that the ORG did not have the intention to consider LAW applicable by analogy to the detention of aliens in accordance with [ LAW ( f ) of the LAW ] , which would also be at variance with the wording of [ LAW ] . In this connection ORG also finds of relevance that the ORG , in its [ decision on admissibility ] in the case of GPE v. the GPE ( no . CARDINAL , DATE ) found that there was no reason for holding that there was a violation of LAW , as the alien concerned who had been placed in GPE detention under LAW [ as in force until DATE ] could at any point in time challenge the lawfulness of [ that ] detention before the judge who should determine [ this issue ] speedily . ORG did not conduct an additional examination of the matter under [ LAW ] . In accordance with LAW an alien can also at present file an appeal at any point in time against a decision imposing deprivation of liberty .

ORG therefore agrees with ORG that the applicant ’s reliance on [ the ORG ’s Shamsa judgment ] fails ... ”

This ruling was published in LAW ( ORG ; “ JV ” ) DATE .

Until DATE , the admission , residence and expulsion of aliens were regulated by the DATE LAW ( ORG ; “ the DATE LAW ” ) . Further rules were set out in the DATE LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( ORG ) and LAW DATE ( PERSON ) . LAW ( PERSON ) applied to proceedings under LAW , unless indicated otherwise in this LAW .

On DATE , the DATE LAW and the pertaining regulations were replaced by QUANTITY , the CARDINAL Aliens Decree , the DATE Regulation on Aliens and the CARDINAL LAW . Unless indicated otherwise in LAW , LAW continued to apply to proceedings on requests by aliens for admission and residence .

At the time of the events complained of , the CARDINAL Aliens Act , as relevant to the case , provided as follows :

“ CARDINAL . If necessary in the interests of public order or national security so requires , [ the competent Minister ] may , for the purpose of expulsion ( uitzetting ) , order the detention of an alien who :

( a ) is not lawfully resident ; ... ”

“ In deviation from LAW on ORG ( PERSON ) , no appeal lies against a decision of ORG ... :

a. about a decision or act based on ... [ LAW ] ... ”

“ CARDINAL . Our [ competent ] Minister shall notify ORG of a decision to impose deprivation of liberty as referred to in Article ... DATE ... [ of the DATE LAW ] DATE after communication of the decision , unless the alien himself has lodged an appeal first . As soon as ORG has received the notification , the alien shall be deemed to have lodged an appeal against the said decision imposing deprivation of liberty . The appeal shall also constitute a request for the award of damages .

The Regional Court shall immediately fix the time of a hearing . The hearing shall take place no later than DATE after the receipt of the written statement of appeal or the notification . ... In deviation from LAW , the delay referred to in that Article can not be prolonged .

The Regional Court shall give judgment orally or in writing . A written judgment shall be given within DATE of the conclusion of the hearing . In deviation from Article QUANTITY of LAW , the delay referred to in that LAW can not be prolonged .

NORP If ORG finds on appeal that the application or implementation of the decision [ to impose deprivation of liberty ] is contrary to this LAW or is – on consideration of all the interests involved – not reasonably justified , it shall accept the appeal . In such a case the ORG shall order that the deprivation of liberty be terminated or the manner of its implementation altered . ”

Article CARDINAL

“ CARDINAL . In deviation from DATE under a. , a ruling given by ORG as referred to in LAW can be appealed before ORG of ORG . ... ”

Article CARDINAL

“ CARDINAL . In case ORG has rejected as unfounded an appeal within the meaning of LAW and the deprivation of liberty continues , Our Minister shall notify ORG of the continuation of the deprivation of liberty DATE after the ruling within the meaning of LAW has been given , unless the alien himself has lodged an appeal first . As soon as ORG has received the notification , the alien shall be deemed to have lodged an appeal against the decision to prolong the decision imposing deprivation of liberty . ”

Article CARDINAL was amended with effect from DATE . It now requires ORG to be notified of the detention decision within DATE after its issuance unless the alien has lodged an appeal first , and the hearing of the appeal must take place DATE after ORG has received the written statement of appeal or the Minister ’s notification . This amendment meant in practice a revival of the legal situation that existed before DATE in respect of these CARDINAL time - limits under the former DATE LAW and pertaining regulations ( for further details , see PERSON the GPE ( dec . ) , nos . CARDINAL and CARDINAL , DATE , under “ Relevant domestic law and practice ” ) .

LAW CARDINAL of the LAW stipulates that there is no time - limit for filing an appeal within the meaning of ORG CARDINAL and CARDINAL of the DATE LAW and that an appeal referred to in Article CARDINAL must be filed within DATE . Accordingly , a person placed in GPE detention can in principle file as many appeals against this placement as he or she sees fit . When the lawfulness of a decision of placement in GPE detention has been determined for a first time , the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in GPE detention . Pursuant to LAW , no appeal to ORG lies against a decision by ORG on such a subsequent appeal ( ORG , DATE , case no . CARDINAL/CARDINAL ) . The hearing and determination of such a subsequent appeal are subject to the same mandatory time - limits as those for a first appeal ( ORG of GPE sitting in GPE , DATE , case no . ORG CARDINAL/CARDINAL ) .

According to a ruling given by ORG on DATE ( JV CARDINAL/CARDINAL ) , the time - limit set out in LAW is of a strict mandatory nature . In the event that this time - limit has not been respected , the placement in GPE detention becomes unlawful on DATE following DATE on which this time - limit expired .

As there is no statutory fixed maximum duration of a placement in GPE detention for expulsion purposes , an alien whose expulsion has been ordered can , in principle , remain in GPE detention for an unlimited period of time provided there are reasonable prospects for expulsion within the foreseeable future . However , it has been established in domestic caselaw that the interest of an alien to be released from GPE detention increases with the passage of time .

Where a placement in GPE detention exceeds a period of DATE , it is generally held that the alien ’s interest in being released is greater than the interest in keeping him in detention for the purposes of expulsion . Depending on the specific circumstances of each case , this point in time may also be reached before or after DATE have passed . It may be later when an exclusion order ( ongewenstverklaring ) has been imposed or where the alien concerned frustrates the determination of his identity or nationality , and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his or her control ( see , ORG ( ORG ) of ORG of the GPE , case no . ORG CARDINAL , DATE ; and ORG of The GPE sitting in GPE , case no . ORG CARDINAL/CARDINAL , DATE ) .


Violation of Art. 2;Violation of P1-1;Violation of Art. 13

The applicant was born in DATE . She lived in the village of PERSON in the PERSON district of ORG , GPE . Currently she lives abroad after seeking asylum . The applicant is the mother of PERSON ( also spelled ORG ) PERSON , born in DATE .

At TIME on DATE approximately CARDINAL men in QUANTITY APCs ( armoured personnel carriers ) and a white VAZ CARDINAL Niva car with the registration plate CARDINAL QUANTITY arrived at the applicant 's house in PERSON .

The men were armed and equipped with portable radio sets . They neither introduced themselves nor produced any documents . The applicant thought that they were ORG servicemen . It appears that the servicemen arrived to apprehend the applicant 's husband and CARDINAL men who were staying in the house that night . The men broke into the applicant 's house and opened gunfire . The applicant 's husband shouted to the servicemen : “ Do not shoot ! There are children in the house . ” In spite of the warning the servicemen continued shooting . They took the applicant 's husband outside ; the applicant 's CARDINAL children remained in their rooms and the applicant was in the corridor .

During the shooting the applicant 's CARDINAL sons PERSON ( born in DATE ) and PERSON ( born in DATE ) ran out from their bedrooms into the corridor . At some point PERSON ran out of his sister 's bedroom , screaming that PERSON had been wounded and was bleeding . It appears that PERSON had been hit by a fragment of a rifle grenade .

The applicant tried to go into her daughter 's room , but the servicemen pushed her outside the house into the yard . When the applicant asked them to let her go inside , the servicemen forbade her under gun point . She was made to lie down on the ground with her hands behind her head .

When the shooting was over , their neighbour PERSON went into the house and carried out the body of PERSON .

As a result of the shooting the CARDINAL men who were staying in the applicant 's house were killed , and the applicant 's husband was taken to ORG of the PERSON district ( “ the PERSON ROVD ” ) .

After the shooting the applicant saw that her house , as well as her family possessions in it , had been damaged by the gunfire . In addition , the family 's identity documents , including passports and birth certificates , had been taken away by the servicemen .

The applicant submitted that after the shooting , the servicemen had taken away CARDINAL plastic bags with the applicant 's family documents and valuables , including the applicant 's golden bracelet and CARDINAL rings .

The applicant 's description of the events of DATE is based on several undated accounts provided by her to her representatives and on the letters which the applicant sent to the authorities . The applicant also submitted articles published in the newspaper “ PERSON ” ( ORG ) on DATE and on DATE and an article published in the newspaper “ Niyso - Dagestan ” ( Нийсо-Дагестан ) on DATE .

The Government submitted , with reference to the documents from the criminal investigation file ( see below ) , that the CARDINAL men who had been at the applicant 's house on TIME DATE had been suspected of the armed robbery of a woman and of an attack on a serviceman of the traffic police , PERSON , who had later died . The crimes had been committed by QUANTITY persons on DATE , and on DATE the PERSON district prosecutor 's office ( the district prosecutor 's office ) opened a criminal investigation into the incident . The investigation was assigned file number DATE . It has been established that during the attack the criminals took hold of PERSON 's police identity document and his PM service pistol with a known serial number .

The police obtained information that CARDINAL suspects , Mr GPE . and PERSON R.Yu . , had found refuge at the applicant 's house and that they had stored weapons and armaments there , including the PERSON pistol . On DATE the investigator of the district prosecutor 's office decided to carry out an urgent search at the applicant 's house with the aim of finding the CARDINAL suspects and the weapons . Since the suspects could have been armed , the prosecutor had been assisted by servicemen of the PERSON and of the special police force of ORG .

Upon arrival at the applicant 's house , police officers Mr P.A. and Mr S.O. informed the applicant and her husband about the aim of their visit and suggested that they evacuate the building for their own safety . The applicant , her husband and their CARDINAL sons PERSON and PERSON came out of the house . Then the applicant informed the policemen that her daughter PERSON had remained in the house . Mr P.A. and Mr S.O. returned to the house in order to take the child out , but Mr GPE . and Mr DATE . , who had taken refuge in the house , threw hand grenades at them . Both policemen were injured . Their colleagues , in order to cover them , opened gunfire and killed both suspects .

After the skirmish was over , the site was inspected by the investigator of the district prosecutor 's office and by forensic and medical experts , in the presence of CARDINAL attesting witnesses . They discovered the bodies of Mr GPE . and Mr R.Yu . and of the applicant 's daughter , PERSON . In the room where the CARDINAL fugitives had been hiding , they also found safety pins from hand grenades and a PM hand pistol with the serial number corresponding to the CARDINAL stolen from GPE

Shortly after the shooting had ended , experts from the PERSON took pictures of PERSON and wanted to take her body to the morgue for an autopsy . The applicant and her relatives refused to give their permission and wrote down an official statement of refusal .

From the beginning of her correspondence with the authorities the applicant was assisted by PERSON , head of the local human rights organisation ORG ( PERSON ) . The applicant and PERSON contacted various official bodies , including the NORP President , ORG , the PERSON district administration , the mass media and prosecutors ' offices at different levels , describing the circumstances of PERSON killing and requesting an investigation into the crime . The applicant retained copies of a number of their letters and submitted them to the ORG . The relevant information is summarised below .

On DATE the applicant wrote to a number of the ORG authorities , including the district prosecutor 's office , the ORG prosecutor 's office and ORG . She described the events of DATE and requested an investigation into the death of her daughter and prosecution of the culprits . The applicant also complained that her property had been unlawfully destroyed during the special operation and requested compensation for the pecuniary and non - pecuniary damage caused by the actions of the servicemen .

In DATE or DATE the applicant informed the ORG prosecutor 's office that servicemen of the PERSON had participated in the special operation on DATE .

On DATE the ORG prosecutor 's office informed the applicant that her complaint about unlawful actions of servicemen of the PERSON during her husband 's apprehension had been forwarded to the district prosecutor 's office for examination .

On DATE the district ORG registry office ( NORP ) issued a statement confirming the death of PERSON on DATE .

On DATE the NORP village administration issued a death certificate for PERSON .

On DATE the applicant again wrote to the authorities , including the district prosecutor 's office , the ORG prosecutor 's office and ORG . In her letter she pointed out that on DATE she had already complained about her daughter 's killing , but the authorities had failed to initiate a criminal investigation into the death . She requested explanations concerning the reasons for the failure to initiate the investigation and to prosecute the perpetrators .

On DATE and DATE the ORG prosecutor 's office informed the applicant that her complaint about the death of PERSON had been forwarded to the district prosecutor 's office for examination .

On DATE the Khasavyurt ORG sentenced the applicant 's husband to DATE imprisonment for harbouring CARDINAL criminals . In its judgment the court stated , inter alia , that his “ minor daughter PERSON had been killed in the course of a special operation aimed at apprehending the criminals who had been hiding in the house ” . The applicant 's husband accepted his guilt and did not appeal against the sentence .

It appears that PERSON , who had assisted the applicant in the preparation of her complaints to the domestic authorities , was arrested in DATE on suspicion of illegal possession of weapons . Following allegations of torture and ensuing public pressure , he was released and acquitted . He left GPE in DATE and sought asylum in another country .

On DATE a commission of the administration of PERSON , including the head of the administration , the chief accountant and the applicant 's CARDINAL neighbours , visited the applicant 's house . They examined the scene and drew up the following report on damage :

“ During the special operation on DATE the house ... was practically destroyed ; as a result of gunfire and explosions the windows and doors were blown out , the roof was damaged by shots , a powerful blast resulted in cracks in the walls and in the ceiling ; the furniture in the living room and in the kitchen , the refrigerator and the TV set were rendered unusable . ”

According to the report , the applicant 's house was uninhabitable and required major repairs . The report further estimated the cost of repairs at CARDINAL MONEY ( RUB ) , without specifying additional details .

NORP In response to a specific request from ORG , the ORG submitted CARDINAL pages of documents from the criminal investigation files mentioned above . Although this was not marked on many documents , it appears that the Government submitted copies of the decisions to open the criminal proceedings in the cases assigned file numbers DATE , DATE and DATE .

The Government submitted that on DATE the district prosecutor 's office had opened criminal investigation no . CARDINAL into the attack on the police officers and the unlawful purchase and storage of arms and ammunition . The investigation was opened in view of the wounding of CARDINAL policemen , PERSON and Mr S.O. The decision did not mention the suspects ' and the applicant 's daughter 's deaths . The investigation obtained information that Mr GPE . and Mr DATE . had been involved with illegal armed groups and had fought against the authorities in GPE . Thus , on DATE , the district prosecutor 's office opened a new investigation file concerning participation in illegal armed groups , which was assigned number CARDINAL .

On DATE the investigator of the district prosecutor 's office , assisted by medical and forensic experts , in the presence of CARDINAL witnesses , examined the body of PERSON . They noted CARDINAL large open wounds : CARDINAL measuring QUANTITY by QUANTITY to the head and CARDINAL measuring QUANTITY by QUANTITY to the upper part of the torso . The ORG submitted a copy of the expert report . The experts also took photographs ; however , as follows from subsequent documents and the ORG 's submissions , the photographs could not be developed because the film was defective .

On DATE criminal investigation files nos . CARDINAL and DATE were joined and assigned number CARDINAL . The decision did not refer to the death of the applicant 's daughter or to the deaths of the suspects .

No separate criminal investigation was opened into the applicant 's daughter 's death . The Government submitted that in the course of the investigation of file no . DATE the authorities had established that PERSON had died of splinter wounds caused by hand - grenade explosions . The police officers had not used grenades and had only employed hand guns . The forensic reports on the bodies of Mr GPE . and PERSON R.Yu . concluded that they had died as a result of bullet wounds . Seeing that no autopsy had been carried out on the body of PERSON owing to her relatives ' refusal to submit it for such an examination , the investigation relied on the description of her body , which referred to splinter wounds . It concluded that her death had resulted from the explosion of hand grenades thrown by the suspected criminals .

On DATE the criminal proceedings against Mr GPE . and PERSON R.Yu . were terminated on account of their deaths . The investigation of criminal case no . DATE continued .

On DATE the district prosecutor 's office took statements from CARDINAL investigators , medical and forensic experts who had examined the child 's body and CARDINAL attesting witnesses . The Government submitted copies of their testimonies , except for the medical expert 's statement and CARDINAL witness 's statement . The forensic expert explained that he had taken photographs of the house , of CARDINAL male bodies in the courtyard and of the girl 's body in the neighbouring house . Once the film was developed , some photographs were spoiled because the film was defective . Thus , no photographs of the girl 's body came out .

According to the Government , the medical expert stated that he had examined the girl 's body in the neighbouring house and noted CARDINAL large open wounds to the head and upper part of the torso . These wounds could have been caused by splinters from an explosive device . The body had then been transferred to the relatives , who had refused to submit it for an autopsy .

The investigator submitted that TIME on DATE he had been alerted that the suspects in the murder of Inspector PERSON were hiding in the house of the imam of PERSON . TIME he went to the scene , accompanied by servicemen of the PERSON and of the special police unit of ORG . They also invited CARDINAL witnesses residing in PERSON , PERSON . Once at the house , the servicemen surrounded the house . After that the police ordered everyone to leave the house . A woman , a man and CARDINAL children came out into the entry hall and the police led them outside the house . The woman said that another child remained in the house . CARDINAL servicemen of the special police unit entered the house and immediately afterwards there came the sound of explosions . Several policemen ran to the house and started to shoot in order to cover up their colleagues . The persons taking refuge in the house fired back and threw hand grenades , some of which exploded outside the house , and some inside the house . As soon as the QUANTITY policemen were led out of the building , other servicemen shot at the doors and windows of the house with machine guns and automatic rifles . When the shooting from inside the house subsided , the policemen went in and brought out CARDINAL male bodies . They said that there was a child 's body in the house . A neighbour walked in and carried the body to the nearby house . Then the body was examined by the officials from the prosecutor 's office , in the presence of CARDINAL witnesses . They noted CARDINAL large open splinter wounds CARDINAL to the front of the head and another near the shoulder blade . The investigator added that the police had not used hand grenades ; they had fired from machine guns and automatic rifles . The investigator also answered a number of questions concerning the missing property and identity documents and the damage caused to the applicant 's house . He stated that they had collected and seized CARDINAL yellow rings and the applicant 's passport . No other documents or valuables had been found or seized . As to the state of the house , the investigator specified that the window glazing , furniture and parts of the roof had been damaged . The walls had not been damaged . Some parts of the house were in any event unfinished and were not inhabitable . The state of the house could be ascertained from the photographs taken immediately after the attack .

Another investigator , a member of the team working on ORG murder , stated that he had arrived at the applicant 's house at TIME on DATE . There he was instructed to examine the child 's body , together with the criminal and forensic experts . They noted CARDINAL large wounds , caused by splinters from an explosive device . The mother of the child refused to submit the body for an autopsy and signed a document to that effect . After the body was examined , the relatives took it for burial . The criminal expert later informed the investigator that the film had been defective and no photographs could be developed .

The witness PERSON stated that he and his friend PERSON had been doing their TIME jogging when the police asked them to be witnesses to a search in PERSON . When the CARDINAL men arrived at the house , it was surrounded by police . They saw a man , a woman and QUANTITY children come out , accompanied by servicemen . The woman said that another child remained in the house . QUANTITY police officers went in and there followed several explosions . Then several more policemen ran to the house and the witnesses were taken away to a safe distance , from where they could not see the house . They could hear shots being fired and explosions . Once the shooting was over , the witnesses were invited by the investigator to be present during the search . In front of the house there were CARDINAL male bodies . Someone brought out a child 's body , which was taken to the neighbouring house . The investigator found and seized CARDINAL yellow rings and a woman 's passport . The investigator also noted and seized a number of safety pins from hand grenades and empty cartridges , as well as a hand pistol . The rooms were first inspected by a bomb expert and then by the investigators and witnesses . The house was partially damaged , but the load - bearing walls and the roof were intact . Some rooms were unfinished . The Government submitted a copy of PERSON testimony and stated that PERSON had made similar statements .

In their observations the Government extensively cited an undated statement by Mr PERSON , the head of the criminal investigation department of the PERSON , no copy of which has been submitted . According to the Government , Mr PERSON stated that the department had been tipped off about the location of the suspects in GPE 's murder . TIME on DATE he had arrived at the applicant 's house , accompanied by servicemen of the special police force . The servicemen surrounded the house . CARDINAL serviceman of the special police force walked up to the house and knocked on the door . He was let inside . TIME later he came out of the house , together with a man , a woman and CARDINAL children . The woman said that a third child remained in the house . She wanted to return to the house , but was not allowed to . CARDINAL servicemen of the special police force went to the house in order to retrieve the child . As soon as they had gone in , there came the sounds of explosions . Several more servicemen ran to the house to help their colleagues . They were shot at from inside the house and more grenades were thrown . The CARDINAL wounded policemen were assisted in leaving the house , and the servicemen shot at the windows and doors of the house . The policemen were not equipped with grenades . When the shooting from inside the house subsided , several policemen went into the house . They found the bodies of CARDINAL men and a girl . The male bodies were taken into the courtyard . A local resident took out the child 's body and took it to the neighbouring house . Mr PERSON was told by his colleagues that the body had CARDINAL large splinter wounds . An expert in explosives examined the house , following which an investigator conducted a search in the presence of CARDINAL witnesses . Mr PERSON also stated that he had seen the seized pistol with the serial number corresponding to that taken from FAC and a number of empty cartridges . The investigators put them in bags and sealed off the courtyard of the house .

The Government submitted a note dated DATE , in which PERSON . stated that the family had refused to submit the body of PERSON for an autopsy with the aim of establishing the cause of her death . The note stated that the family knew the cause of the child 's death and that they wanted to proceed with the burial in accordance with religious rites .

The Government submitted an undated note signed by the applicant to the effect that she had received from the investigator of the district prosecutor 's office CARDINAL golden rings and her passport , which had been seized at her house on DATE .

The Government also submitted a number of letters sent by the district prosecutor 's office to the applicant . On DATE the investigator informed the applicant that the investigation had established that her daughter had died as a result of grenade explosions caused by GPE . and R.Yu . The criminal proceedings against the CARDINAL men had been terminated on account of their deaths . CARDINAL rings had been returned to the applicant . She could seek compensation for other damage through the Khasavyurt ORG . The decisions of the investigators could be appealed against to a higher - ranking prosecutor or to a court .

From the documents submitted it does not appear that the investigators attempted to take statements from the applicant , her husband or their neighbours .

The Government stated that the investigation of criminal case file no . DATE was in progress and that disclosure of other documents would be in violation of LAW , since the files contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings .

On DATE the applicant complained to the Khasavyurt ORG of Dagestan ( “ the district court ” ) about the destruction of her property during the special operation conducted on DATE and the failure of the authorities to initiate criminal proceedings into the death of PERSON . She sought a ruling obliging the district prosecutor 's office to initiate an investigation into the crime and to prosecute the perpetrators .

DATE . On DATE the district court refused to examine her complaint . It stated that the applicant was entitled to appeal against actions of the district prosecutor 's office only within the course of an ongoing criminal investigation or that she could appeal against the authorities ' refusal to initiate criminal proceedings . The court pointed out that she had failed to submit any evidence of an ongoing criminal investigation or of the authorities ' refusal to initiate criminal proceedings .

The applicant did not appeal against that decision .

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


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

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

The applicant was employed in the Zjednoczone PERSON in GPE , a state owned company , which was subsequently acquired by ORG ( “ LCP ” ) .

In DATE the applicant and his colleague PERSON invented a new , modernised system of water management for their company ( projekt racjonalizatorski pt . ORG gospodarki wodnej w ORG ) . The system came into use in DATE .

Under the relevant legislation the applicant and PERSON should have been remunerated for their project . They had reached the settlement with the company in respect to the payment but it was not effected .

Subsequently , the applicant and PERSON sued the company for payment . They filed their statement of claim with ORG ( Sąd Wojewódzki ) on DATE .

On DATE ORG ordered the applicant to pay court fees . Later , on an unspecified date the court granted him an exemption from court fees .

On DATE the applicant modified his claim .

On DATE the court held a hearing . The Government submit that the applicant asked the court to adjourn the hearing . The applicant argues that he had never asked for the hearing to be adjourned .

On DATE the applicant submitted a settlement proposal . In a letter of CARDINAL DATE “ ORG ” informed that the applicant ’s claim was partially granted and asked him to submit further documentary evidence .

On DATE the applicant filed another statement of claim .

On DATE the applicant filed with ORG yet another statement of claim . On DATE he also withdrew his statement of claim of DATE .

On DATE the court held a hearing but the applicant failed to appear .

The court held further hearings on DATE , CARDINAL DATE and CARDINAL DATE , DATE , DATE . It heard evidence from the applicant and CARDINAL witnesses .

The applicant submits that on an unknown date in DATE or DATE the court held yet another hearing .

The applicant was not present during the hearing held on DATE . On that date the court heard evidence from an expert .

On DATE the court ordered that expert evidence be obtained . On DATE CARDINAL expert returned the case - file submitting that he was not competent to prepare a report . On DATE the court transferred the file to another expert , who again was not competent to deal with case . On CARDINAL DATE ORG asked yet another expert to prepare a report . In his letter of CARDINAL JuneCARDINAL the applicant asked the court to reverse its decision to obtain expert evidence and to determine the claim on the basis of evidence as it stood at that time . Despite that , on DATE , the court ordered that evidence from a new expert be obtained .

On DATE the report was submitted to the court . The applicant contested the report .

On DATE the court held a hearing . It closed the examination of the case and informed the parties that the final decision would be delivered on DATE . The applicant was present during that hearing .

ORG gave judgment on DATE in the applicant ’s absence . The applicant appealed but he failed to comply with formal requirements which resulted in his appeal being eventually rejected by ORG on DATE .


Violation of Article 6 - Right to a fair trial

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and is serving his prison sentence in the Gaziantep H - type Prison .

On DATE the applicant was taken into custody during a military operation carried out by the NORP armed forces on suspicion of being a member of an illegal armed organisation , namely the ORG ( ORG . The applicant was detained at a gendarme station , where he was questioned in the absence of a lawyer and his detailed statement was recorded verbatim .

In the statement the applicant was quoted as having said that he had joined the ORG on CARDINAL DATE and that he had carried out a number of armed activities since DATE .

On DATE the applicant was brought before the public prosecutor and subsequently the investigating judge . When questioned by the prosecutor and the judge , in the absence of a lawyer , the applicant confirmed the accuracy of the information contained in the statement he had made at the gendarme station , and repeated that he had carried out a number of armed activities . The applicant was placed in detention on remand on the order of the investigating judge .

On DATE the public prosecutor at ORG filed an indictment , charging the applicant with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory . He sought the death penalty under LAW .

The trial of the applicant and his CARDINAL co - defendants began on DATE before ORG . In the course of the trial , the applicant was represented by his lawyer . He informed the court that he had joined the ORG in DATE and had received military training . He further admitted to certain charges brought against him . The applicant also stated , during the hearings , that he had been forced to put his thumbprint on the statement taken from him at the gendarme station .

On DATE ORG found the applicant guilty as charged and sentenced him to death . The death penalty was commuted to a life sentence . The court found it established , on the basis of , inter alia , the statements taken from the applicant after his arrest and the testimony given by him during the trial , that he had carried out a number of illegal activities and had been involved in the killing and kidnapping of a number of village guards .

On DATE ORG dismissed the applicant ’s appeal .

A description of the relevant domestic law may be found in PERSON v. GPE ( [ ORG ] no . CARDINAL , § § DATE , DATE ) .


The applicant was born in DATE and is currently detained in FAC .

On DATE the applicant was convicted of murder by ORG , sitting as an assize court , and sentenced to life imprisonment .

On DATE the applicant filed an objection ( PERSON ) against the local electoral register ( NORP ) with ORG ( PERSON ) , complaining that his name had not been entered in the register although he met the general conditions such as minimum age , citizenship and residence in the community . He alleged that his exclusion from the electoral register under LAW of LAW ( Nationalratswahlordnung ) was unlawful as this provision was unconstitutional . He invoked , inter alia , LAW No . CARDINAL to the Convention .

ORG dismissed the applicant 's objection on DATE and , referring to section CARDINAL of LAW , refused to enter the applicant 's name in the electoral register . On DATE the applicant appealed .

On DATE ORG ( GPE - behörde ) dismissed the appeal . It found that ORG had acted correctly in refusing to enter the applicant 's name in the electoral register and that it was not the task of these authorities to express a position on the alleged unconstitutionality of the law applied .

On an unspecified date the applicant requested ORG to grant him legal aid to lodge a complaint with that court against ORG decision .

On DATE ORG refused to grant legal aid as it found that the applicant 's complaint lacked any prospect of success . It referred in that connection to a previous decision of DATE in which it had found that section CARDINAL of LAW was not unconstitutional .

Article CARDINAL of LAW , as in force at the time of the events and in so far as relevant , reads as follows :

“ ( CARDINAL ) ORG is elected by the nation in accordance with the principles of proportional representation on the basis of an equal , direct , secret and personal vote for men and women who by the date of the election have completed DATE .

( CARDINAL ) All men and women who on the date of the election are in possession of NORP nationality and have completed DATE shall be eligible for election .

( CARDINAL ) DATE Forfeiture of the right to vote and to stand for election can only ensue from a court sentence .

( CARDINAL ) The electoral register shall be drawn up by the municipalities as part of their assigned sphere of competence . ”

Section CARDINAL of the LAW reads as follows :

“ ( CARDINAL ) Anyone who has been convicted by a domestic court of CARDINAL or more criminal offences committed with intent and sentenced with final effect to a term of imprisonment of DATE shall forfeit the right to vote . Disenfranchisement shall end DATE . Time shall start to run once the sentence has been enforced and any preventive [ detention ] measure combined with the deprivation of liberty has been enforced or dropped ; if the sentence is enforced with the period of detention on remand being counted towards the sentence , time shall start to run when the judgment becomes final .

( CARDINAL ) NORP If the legal consequences [ of a conviction ] are suspended under other legal provisions or have lapsed or if all legal consequences or the forfeiture of the right to vote have been pardoned , the convicted person shall not forfeit the right to vote ; nor shall he or she forfeit the right to vote if the court has imposed a conditional sentence . If the condition is revoked , disenfranchisement shall take effect from DATE that decision becomes operative . ”

Section CARDINAL of LAW , entitled “ conditional suspension of concurrent sanctions ” ( PERSON mehrerer GPE ) , as in force until DATE , read as follows :

“ ( CARDINAL ) If a term of imprisonment and a fine are imposed concurrently , both sanctions shall be conditionally suspended if the relevant requirements are met . If it can be expected that enforcement of CARDINAL sanction alone or of part of CARDINAL sanction will suffice , sections CARDINAL [ conditional remission of sentence ] and DATE [ conditional remission of part of a sentence ] may be applied .

( CARDINAL ) Confiscation can not be the subject of conditional remission . If another subsidiary sanction is imposed it shall be conditionally suspended if the main sanction is also conditionally suspended and independent enforcement of the subsidiary sanction is not necessary . The same shall apply in respect of the legal consequences of a conviction . ”

By LAW , ORG no . CARDINAL ( DATE , BGBl . Nr . CARDINAL/CARDINAL ) , paragraph CARDINAL of Section CARDINAL was replaced by the following wording :

“ ( CARDINAL ) ORG sanctions and the legal consequences of a conviction may be the subject of conditional remission of a sentence independently from the main sanction . ”

In its decision of CARDINAL DATE ( ORG . DATE ) ORG examined the constitutionality of the conditions of the disenfranchisement under section CARDINAL of LAW of a person convicted of aggravated fraud and serving a DATE prison term .

ORG held in particular as follows :

“ The enactment of legislation providing for disenfranchisement under section CARDINAL(CARDINAL ) of the [ LAW ] on the basis of a final sentence ( imposed by a domestic court for CARDINAL or more offences committed with intent ) carrying a term of imprisonment of DATE lies , in ORG view , within the margin of appreciation afforded to the legislature in matters of election of the legislature . The fact that as a consequence of this rule citizens who are sentenced to DATE imprisonment for an offence committed with intent are stripped of their right to vote , whereas citizens who are sentenced to just under DATE imprisonment ( for an intentionally committed offence ) are not , does not make the legal provision in question unconstitutional ( cf . PERSON . MONEY ) . Nor do the factual submissions advanced by the complainant in this connection ( for instance with reference to FAC ) alter this conclusion in any way . ”

In its decision of DATE ( BCARDINAL/CARDINAL ) ORG again examined the constitutionality of section CARDINAL of LAW . The complainant had been convicted of aggravated robbery and kidnapping and sentenced to DATE imprisonment respectively . In its decision , after referring at length to the judgment of ORG in the case of ORG v. GPE ( no . CARDINAL ) ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINALIX ) , it held that in view of that judgment it maintained the findings adopted in its decision of CARDINAL DATE . It stated in particular as follows :

“ In respect of the present complaint it is established that the legal position in GPE at issue in the judgment in the PERSON case differs decisively from the CARDINAL in GPE that is relevant here : section CARDINAL of the National Assembly Election Act does not provide for blanket forfeiture of the right to vote in respect of all convicted prisoners , irrespective of the type or seriousness of the offence they have committed or their individual circumstances . The precondition for imposing forfeiture of the right to vote is a final sentence for one or more intentionally committed offences carrying a prison sentence of DATE ; sentences to a fine , sentences to DATE imprisonment and conditional prison sentences do not result in forfeiture of the right to vote . Moreover , section CARDINAL(CARDINAL ) allows the judge to conditionally suspend the legal consequences of the conviction , including therefore disenfranchisement ; in this respect the NORP legal system also makes legal provision for consideration to be given to the individual circumstances of the person concerned . ”


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

The applicant was born in DATE and lives in the GPE region .

On an unspecified date in DATE the former owners of the land belonging to the LOC settlement , situated on the territory of ORG ( “ the ORG ” ) , filed claims for restitution of their ownership rights .

On DATE the ORG settlement local council assigned a plot of land for the applicant ’s use and for construction of a private house . On DATE the applicant paid MONEY ( RUR ) for the use of that plot .

On CARDINAL DATE a meeting of ORG took place attended by the applicant , acting on behalf of the ORG , a representative of the pre - nationalisation owners who sought to restore their property rights to the land assigned to the territory of the new ORG settlement , and representatives of various municipal and ORG institutions . It was decided to organise another meeting to discuss the possibility of restoring property rights to the land in GPE settlement in kind and to propose to the Government that plots of QUANTITY be allocated to the former owners for the construction of private houses .

DATE the Government enacted several decrees allowing persons in the applicant ’s position to acquire ownership of the land they had been using .

On DATE the applicant and the NORP municipality signed a land - purchase agreement which specified that on DATE the applicant had paid MONEY ( LTL ) for the plot of land . On DATE the plot of land was registered in ORG in the applicant ’s name and , in accordance with NORP law , the applicant became its owner .

On DATE , civil proceedings were brought by a group of CARDINAL private individuals for annulment of the land - purchase agreements , including that of the applicant . The plaintiffs claimed restitution of their property rights to the land in question , which the ORG had allocated for the building of private houses and which had been nationalised by the NORP occupying power in DATE . The dispute involved a total of CARDINAL co - defendants , including the applicant .

On DATE ORG ordered the seizure of the applicant ’s land . The order was later upheld by ORG and ORG , and specified that the applicant could grow only plants with a DATE lifespan on the land at issue . Moreover , the applicant was forbidden from carrying out any construction activities on the land pending the court proceedings .

On DATE ORG dismissed the action as unsubstantiated .

On DATE the ORG quashed the decision , noting that the lower court had failed to properly inform CARDINAL defendants in the case about the forthcoming hearing . The case was returned for fresh examination at first instance .

On DATE ORG again dismissed the action .

On an unspecified date the case was transferred to ORG , which examined it on appeal .

On DATE ORG stayed the proceedings , deciding to submit a question as to the constitutionality of the Government decrees on the basis of which the land had been sold to the applicant .

On DATE the GPE Governor ’s Office informed the applicant that despite the courts’ ban on pursuing any activities on the plot of land , “ at present there are perennial plants and there is also a pond ” . The applicant was requested to “ bring the illegal actions to an end ” . On DATE the applicant informed the local authorities that “ it was only from your letter that I learned about the seizure of my plot of land . The pond was dug , the plants were planted and other works were done in DATE , DATE and DATE ” .

On DATE ORG adopted a ruling , finding that the Government decrees in question violated the rights of the former owners of the land , who had the right to restitution of their property . The decrees were declared unconstitutional as contradicting LAW and , inter alia , LAW ( CARDINAL ) of the PERSON on the procedure and conditions governing the restoration of rights of ownership to existing real property ( FAC dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų ) ( “ the LAW ” ) . The ruling read in part as follows :

“ ... although the legislature enjoys a certain discretion in establishing the conditions and procedure for the restoration of rights of ownership , in doing so it must take account of the constitutional principle of protection of the right of ownership . This principle also presupposes that , unless it is necessary for the needs of society , land unlawfully nationalised by the occupying government must be returned to its owners in kind under the procedure and conditions established by law ...

... given that Government Decree no . CARDINAL of CARDINAL DATE and Government Decree no . CARDINAL of DATE established that the land allocated to the ORG also included an area designated for building private dwelling houses , and that it was established that the status of the land , subject to being bought out by the ORG , was granted because that land was on territory allocated to the scientific and educational establishment , and given also that Government Decree no . CARDINAL of DATE permitted natural persons to acquire private ownership of the plots of land on the territory attributed to the educational - production base of the ORG , the right of the owners to restore their ownership rights over the said land has been denied ” .

As a result , on DATE ORG reversed the decision of ORG of DATE . It was noted that the Government decrees on the basis of which the applicant had signed the land - purchase agreement had been declared unconstitutional . Consequently , the administrative acts whereby the land had been sold to the applicant were declared null and void . The court also observed that “ the defendants [ CARDINAL of them being the applicant ] have for the most part not started the construction works . Not all the defendants have bought out the plots of land which were assigned to them for construction of private houses and not all the [ defendants ] who signed land - purchase agreements have had them registered ” . The court applied Article CARDINAL of LAW and ordered restitution , obliging the local authorities to return to the applicant the sum of LTL MONEY which he had previously paid for the plot of land at issue . As some of the defendants had paid for their plots of land in DATE with “ single - use investment vouchers ” ( vienkartinėmis išmokomis ) , the court ordered that those sums be repaid to them .

The defendants , including the applicant , lodged an appeal on points of law . They alleged , inter alia , that ORG had examined the case in the absence of their lawyer . The defendants further argued that it would be impossible to execute the appellate court ’s decision since it ordered restitution in “ single - use investment vouchers ” , which no longer had any pecuniary value in GPE . Lastly , they contended that the annulment of the land - purchase contracts was contrary to the right to protection of private property and would amount to re - privatisation .

On DATE ORG upheld the decision . It stated that the annulment of the impugned acts was necessary to protect the legitimate interests of the pre - nationalisation owners . The court acknowledged that the “ single - use investment vouchers ” had in the meantime ceased to exist as a means of payment . ORG noted , however , that the subject matter of the proceedings was the annulment of the land - purchase contracts and that the assessment of possible compensation for the investment vouchers had not been its subject matter . Finally , the court found that on DATE the applicant ’s lawyer had been duly notified of the appellate court hearing which was to take place on DATE , and that she had requested that the hearing be postponed , given that she had to attend another court hearing at the same time . ORG , however , noted that the applicant ’s lawyer had failed to provide any proof of that hearing . The court ruled that , taking into account the need to ensure the speediness of the proceedings and the high number of participants in the case , the appellate court had taken a reasonable decision to hear the case in the lawyer ’s absence .

By a decision of DATE the Deputy Governor of GPE restored the former ORG title to the plot of land on the ORG settlement of which the applicant had acquired ownership under the annulled land - purchase agreement of CARDINAL DATE .

The LAW of GPE provides :

“ Property shall be inviolable . Rights of ownership shall be protected by law . Property may be expropriated only for the needs of society and in accordance with the procedure established by law , and shall be justly compensated . ”

The Restitution Law , adopted on DATE and amended on numerous occasions , provided that , in restoring property rights , priority was to be given to restitution in kind . The ORG retained the right to buy out the property from the previous owners if the current social conditions and relations so required ( atsižvelgiant į visuomeninius santykius ) . In particular , LAW ( CARDINAL ) of the PERSON provided that the ORG could buy out land which had been allocated to scientific or educational institutions for carrying out experiments or for other scientific purposes .

On DATE the Government adopted decree no . CARDINAL on the status of land used by ORG and approval of the zoning scheme for its use . In an attempt to create better conditions for the ORG to address scientific , educational and social issues , it was decided that the land , which was used by the ORG and which the ORG ’s management had earmarked for the construction of private housing , could be bought out by the ORG .

On DATE the Government adopted decree no . CARDINAL and partially amended decree no . CARDINAL , specifying that part of the total area of land used by the ORG was to be set aside for building private houses on campus . On DATE the Government enacted decree no . CARDINAL , which granted natural persons the right to acquire private ownership of the plots of land which were on the territory of the ORG and which had been allocated to them by the ORG settlement local council prior to DATE for the building of dwelling houses .

On DATE ORG examined the issue of compatibility with LAW of the domestic laws on the restitution of property rights . In its decision ORG held , inter alia , that possessions which had been nationalised by the NORP authorities since DATE should be considered as “ property under the de facto control of the ORG ” . ORG also stated that , if possible , the property rights should be restored in kind . It further ruled that buying out land in the countryside for the purpose of building private housing served no public interest , since after such land was bought out it could be privatised , thereby breaching the previous ORG right to restitution .

The PERSON on the initial privatisation of ORG property ( PERSON turto pirminio privatizavimo įstatymas ) , adopted on DATE and amended on numerous occasions , provided that NORP citizens would be granted “ single - use investment vouchers ” ( vienkartinės išmokos ) , for amounts ranging from RUR CARDINAL,CARDINAL to RUR CARDINAL , for the initial privatisation of ORG property .

On DATE ORG adopted decision no . CARDINAL , pursuant to which the rouble as a currency unit was to be withdrawn from monetary transactions with effect from CARDINAL DATE . A new temporary currency , the talonas , was to be used instead of the rouble , the exchange rate between the CARDINAL being CARDINAL .

Under the DATE Committee ’s decision of DATE the talonas ceased to exist and was replaced by a new permanent currency , the NORP litas . The exchange rate was CARDINAL talonai to MONEY .

The Civil Code , in force since DATE , provides insofar as relevant as follows :

“ CARDINAL . Any transaction that fails to comply with the mandatory statutory provisions shall be null and void .

When a transaction is declared null and void , each party shall be required to restore to the other party everything he or she has received by means of that transaction ( restitution ) . Where it is impossible to restore in kind the items received , the parties shall be required to compensate each other in money , unless the law provides for other consequences as a result of the transaction ’s being declared void .

“ CARDINAL . In claiming an item as stipulated by LAW , the owner shall have the right to demand : from the person who knew or should have known that his possession was illegal ( possessor in bad faith ) , that he or she reimburse or provide compensation for all income he or she received or should have received during the entire period of possession ; from an illegal possessor in good faith – all income which such possessor received or should have received since the time when he or she found out or should have found out about the possession being illegal or found out about the commencement of a civil case concerning restitution of the item concerned .

An illegal possessor in bad faith shall have the right in his or her turn to claim from the owner necessary expenses related to the item concerned from the time the owner receives income from it .

An illegal possessor in good faith shall have the right to claim from the owner compensation for all his expenses incurred in connection with the item concerned that have not been covered by income received from it .

An illegal possessor in good faith shall have the right to keep those parts that have been added to improve the item concerned , provided these can be removed without causing damage to it . If the parts added as improvement can not be removed or if the item was improved in a different manner , the illegal possessor in good faith shall have the right to claim a compensation for the expenses arising from such improvement , in an amount not greater than the increase in value . ”

“ CARDINAL . Restitution shall take place where a person is required to return to another person the property he or she has received either unlawfully or by error , or as a result of the transaction whereby the property was received by him or her being annulled ab initio , or as a result of the obligation becoming impossible to perform because of force majeure . ... ”

“ Restitution shall be made in kind , except in cases where this is impossible or would cause serious inconvenience to the parties . In the latter case , restitution shall be effected by means of an equivalent monetary payment . ”

“ CARDINAL . The monetary equivalent shall be estimated on the basis of the prices valid at the time when the debtor received the items he is required to restore . ”

“ The repayment of expenses for the care and custody of the property subject to restitution which have been incurred by the person who is required to return the property shall be carried out in accordance with the provisions of Book IV of this Code , applicable in respect of possessors in good faith and possessors in bad faith . ”

“ CARDINAL . The fruits and revenues accruing from the property subject to restitution shall belong to the person required to make restitution . This person shall bear all the expenses incurred in the production of those benefits and revenues . ... ”

Article CARDINAL of the Code of Civil Procedure , in force until DATE , provided that a court could suspend proceedings in a case , at the request of the participants in the proceedings or of its own motion , when it submitted a request to ORG to resolve a question as to the constitutionality of the act applicable in that particular case . Under LAW , the proceedings were suspended until ORG had given its ruling .