No violation of Art. 7-1;No violation of Art. 14+7

The applicant is a NORP national who was born in DATE and lives in GPE ( GPE ) .

DATE approximately DATE CARDINAL NORP fled from GPE ( “ the GPE ” ) to GPE ( “ the FRG ” ) . In order to staunch the endless flow of fugitives , the GPE built FAC on DATE and reinforced all the security measures along the border between GPE , in particular by installing anti - personnel mines and automatic - fire systems ( ORG ) . Many people who tried to cross the border to reach the LOC subsequently lost their lives , either after triggering anti - personnel mines or automatic - fire systems or after being shot by NORP border guards . The official death toll , according to the ORG ’s prosecuting authorities , was CARDINAL . Higher figures have been advanced by other sources , such as the “ CARDINAL DATE ORG ” ( ORG CARDINAL . DATE ) , which speaks of CARDINAL dead . In any event , the exact number of persons killed is very difficult to determine , since incidents at the border were kept secret by the GPE authorities .

ORG NORP ) of the GPE laid down the principles to be followed in matters of national defence and security and organised defence with the assistance of the GPE ’s ORG ( ORG DATE ; LAW – see paragraph CARDINAL below ) .

ORG ( Politbüro ) of the ORG ’s ORG was the party ’s decision - making organ and the most powerful authority in the GPE . It took all policy decisions and all decisions concerning the appointment of the country ’s leaders . The number of its members varied : after the ORG ’s ORG and last ORG in DATE it had CARDINAL members and CARDINAL candidate members .

The presidents of both these bodies , and the president of the GPE ’s parliament – the Volkskammer – were members of the GPE ’s ORG ( PERSON “ the SED ” ) .

The Secretary - General of the ORG ’s ORG presided over ORG , and all the members of the ORG were party officials . It met in general DATE and took important decisions about the establishment and consolidation of the border - policing regime ( Grenzregime ) and about orders to open fire ( Schiessbefehle ) .

NORP GPE border guards ( Grenztruppen der DDR ) were members of ORG ( Nationale Volksarmee – “ the ORG ” ) and were directly answerable to ORG ( FAC für nationale ORG ) . The annual orders of the Minister of Defence were themselves based on decisions of ORG .

For example , in a decision of DATE ORG made it clear that the orders ( ORG ) and service instructions ( PERSON ) laid down by the Minister of Defence should point out to border guards that they were “ fully responsible for preservation of the inviolability of the State border in their sector and that ‘ border ORG ( Grenzverletzer ) should in all cases be arrested as adversaries ( PERSON ) or , if necessary , annihilated ( vernichtet ) ” . Similarly , a service instruction of CARDINAL DATE stated : “ ORG are to be laid in targeted positions and in close formation ... with a view to halting the movements of border violators and ... bringing about their arrest or annihilation ” .

DATE , and especially during the period from DATE , consolidation and improvement of the border security installations ( LOC ) and the use of firearms were regularly discussed at meetings of ORG . The orders issued by ORG as a result likewise insisted on the need to protect the GPE ’s State border at all costs and stated that border violators had to be arrested or “ annihilated ” ; these orders were then implemented by the commanding officers of the border guard regiments . All acts by border guards , including mine - laying and the use of firearms against fugitives , were based on this chain of command .

The applicant , who had enlisted for a DATE period of military service , from DATE , at the instigation of his father , a career officer , was a member of the CARDINALth regiment of the GPE ’s border guards from DATE .

In DATE the flight of CARDINAL of citizens of the GPE to the ORG ’s embassies in GPE and GPE , and to GPE , which had opened its border with GPE on DATE , demonstrations by CARDINAL of people in the streets of GPE , GPE , GPE and other cities and the restructuring and openness campaign conducted in GPE by PERSON ( “ perestroika ” and “ glasnost ” ) precipitated DATE of FAC on DATE , the collapse of the system in the GPE and the process that was to lead to the reunification of GPE on DATE .

By a note verbale of CARDINAL DATE GPE suspended Articles CARDINAL and CARDINAL of the bilateral agreement with the GPE of DATE ( in which GPE had agreed to waive entry visas for each other ’s nationals and refuse travellers permission to leave for third countries ) , referring expressly , in doing so , to Articles DATE and CARDINAL of LAW ( see paragraph CARDINAL below ) and to LAW .

During DATE the GPE ’s newly - elected parliament urged the NORP legislature to ensure that criminal prosecutions would be brought in respect of the injustices committed by the ORG ( die strafrechtliche GPE des SED - PERSON sicherzustellen ) .

In a judgment of CARDINAL DATE ORG ( Landgericht ) sentenced the applicant to DATE and QUANTITY months’ juvenile detention ( ORG ) , suspended on probation ( auf Bewährung ) , for intentional homicide ( Totschlag ) .

ORG found that it had been established that during TIME DATE he and another border guard had fired CARDINAL bursts of QUANTITY shots each which had caused the death of a fugitive trying to swim away from GPE , after shouting out to him and firing warning shots ( GPE ) . The victim was Mr PERSON , aged DATE , who was hit in the head by CARDINAL of the shots and instantly sank and drowned . His body was recovered in the TIME and handed over to officials of ORG ( ORG für ORG . The guards who had fired at Mr ORG were congratulated , decorated with the “ Order of Merit of the GPE ’s border troops ” ( Leistungsabzeichen der Grenztruppen der DDR ) and awarded a bonus of MONEY . Mr ORG ’s widow was told that her husband had committed suicide , that the urn containing his ashes had already been buried and that she could apply to the cemetery management for the card identifying the burial site ( ORG ) .

On the basis of the criminal law applicable in the GPE at the material time , ORG first declared the applicant guilty of intentional homicide ( Totschlag – Article CARDINAL of the GPE ’s Criminal Code – StGB - DDR ; see paragraph CARDINAL below ) ; with regard to the question of limitation , ORG referred to the established case - law of ORG ( see ORG , Criminal Cases , decisions published in the DATE ORG – Monatszeitschrift des Deutschen Rechts DATE , p. CARDINAL and in ORG – ORG DATE , p. CARDINAL ) , and to LAW of DATE on the suspension ( NORP ) of limitation in respect of injustices committed under the ORG regime , also known as LAW ( Gesetz über das Ruhen der Verjährung bei SED - ORG ; see paragraph CARDINAL below ) .

ORG then applied the criminal law of the ORG , which was more lenient than that of the GPE , and convicted the applicant of intentional homicide ( ORG CARDINAL and CARDINAL of the FRG ’s Criminal Code – StGB ; see paragraph CARDINAL below ) .

ORG also held that the applicant could not justify his conduct by pleading section PERSON ) of the GPE ’s ORG ( DATE see paragraph DATE below ) because Mr ORG ’s attempt to cross the border could not be classified as a serious crime within the meaning of LAW of the GPE ’s Criminal Code ( see paragraph CARDINAL below ) .

It further held that the applicant could not rely on LAW ( see paragraph CARDINAL below ) . He had , admittedly , acted in accordance with the following order given to border guards at the time : “ The unit ( PERSON ) ... will ensure the security of the GPE ’s State border ... its duty is not to permit border crossings ( PERSON ) , to arrest border violators or to annihilate them ( vernichten ) and to protect the ORG border at all costs ( unter PERSON ) ... ” . Moreover , he had been part of a military system subject to absolute discipline and obedience in which he had undergone intense political indoctrination ; in the event of a successful crossing of the border , the guards on duty knew that an investigation would be conducted by the military prosecutor ( PERSON ) . However , ORG held that , even for a private soldier , it should have been obvious that firing at an unarmed person infringed the duty of humanity ( PERSON ) and that the applicant could have fired into the water without having to fear the consequences of disobeying orders , since it would have been impossible to observe the exact trajectory of the bullets under water .

In a judgment of DATE , separate from its judgment of DATE concerning PERSON and PERSON , likewise applicants before ORG ( applications nos . CARDINAL and CARDINAL ) and former members of ORG , ORG ( ORG ) upheld the judgment of ORG .

It first gave an account of the facts of the case , accepting that it could not be gainsaid that the first shots fired by the applicant had been warning shots , but pointing out that the subsequent shots had been fired immediately afterwards and that the CARDINAL soldiers knew that the fugitive might be fatally wounded by these later shots .

ORG went on to observe that a ground of justification which placed the prohibition of crossing the border above the right to life “ flagrantly and intolerably PERSON ] elementary precepts of justice and human rights protected under international law ” ( “ verstösst offensichtlich und unerträglich gegen ORG der Gerechtigkeit und gegen völkerrechtlich ORG ” ) and was invalid . It also referred to LAW .

ORG held that the statutory grounds of justification provided in the law of the GPE should have been interpreted strictly and in a manner favourable to human rights ( menschenrechtsfreundlich ) , so that the killing of an unarmed fugitive who merely wanted to swim from CARDINAL part of GPE to the other was unlawful ( rechtswidrig ) .

Like ORG , ORG considered that it should have been obvious to the applicant that the order to annihilate “ border violators ” contravened the criminal law as laid down in Article CARDINAL § CARDINAL of the GPE ’s Criminal Code ( see paragraph CARDINAL below ) , the equivalent provision to which was LAW ( see paragraph CARDINAL below ) .

In conclusion , ORG held that the decisive factor was that the killing ( PERSON ) of an unarmed fugitive by sustained fire ( Dauerfeuer

The applicant then lodged a constitutional appeal with ORG ( Bundesverfassungsgericht ) .

In a judgment of DATE ORG joined the applicant ’s appeal to those of Mr Streletz and PERSON .

After hearing submissions from ORG ( ORG für Justiz ) and ORG of ORG ( GPE für GPE ) , ORG dismissed the appeals as being ill - founded , basing its decision on the following grounds in particular :

“ LAW has not been infringed .

The appellants submitted that LAW had been breached mainly on account of the fact that the criminal courts had refused to allow them to plead a ground of justification provided for at the material time in the GPE ’s provisions on the border - policing regime [ Grenzregime ] , as interpreted and applied by the GPE authorities . The first , second and third appellants [ Mr PERSON , who did not lodge any application with the ORG , PERSON and PERSON ORG ] further submitted that they had been victims of the violation of a right guaranteed by LAW in that they had been convicted , pursuant to the law of GPE , as indirect principals [ mittelbare GPE ] .

Neither complaint is well - founded .

NORP ( a ) LAW CARDINAL of LAW is an expression of the principle of the rule of law ... This principle forms the basis for the use of civil rights and liberties , by guaranteeing legal certainty , by subjecting ORG power to statute law and by protecting trust . In addition , the principle of the rule of law includes , as one of the guiding ideas behind LAW , the requirement of objective justice ... In the sphere of the criminal law , these concerns relating to the rule of law are reflected in the principle that no penalty may be imposed where there is no guilt . That principle is at the same time rooted in the human dignity and personal responsibility which are presupposed by LAW and constitutionally protected by LAW and CARDINAL § CARDINAL thereof , and to which the legislature must have regard when framing the criminal law ... It also underlies LAW ...

LAW secures these aims by allowing conviction only for acts which , at the time when they were committed , were defined by statute with sufficient precision as criminal offences . It further prohibits the imposition of a higher penalty than the one prescribed by law at the time when the offence was committed . In the interests of legal certainty and justice , it provides that in the sphere of the criminal law , which permits extremely serious interference with personal rights by the ORG , only the legislature may determine what offences shall be punishable . LAW CARDINAL of LAW thus reinforces the rule of law by strictly reserving law - making to ORG ... The citizen ’s trust is earned by the fact that LAW gives him the assurance that the ORG will punish only acts which , at the time when they were committed , had been defined by ORG as criminal offences , and for which it had prescribed specific penalties . That allows the citizen to regulate his conduct , on his own responsibility , in such a way as to avoid committing a punishable offence . This prohibition of the retroactive application of the criminal law is absolute ... It fulfils its role of guaranteeing the rule of law and fundamental rights by laying down a strict formal rule , and in that respect it is to be distinguished from other guarantees of the rule of law ...

( b ) Article CARDINAL § CARDINAL of LAW protects against retroactive modification of the assessment of the wrongfulness of an act to the offender ’s detriment ... Accordingly , it also requires that a statutory ground of justification which could be relied on at the time when an act was committed should continue to be applied even where , by the time criminal proceedings begin , it has been abolished . However , where justifications are concerned , in contrast to the definition of offences and penalties , the strict reservation of ORG ’s law - making prerogative does not apply . In the sphere of the criminal law grounds of justification may also be derived from customary law or case - law . Where grounds of justification not derived from written law but nevertheless recognised at the material time subsequently cease to be applied , the question arises whether and to what extent LAW likewise protects the expectation that they will continue to be applied . No general answer to that question need be given here , because in the instant case a justification – based partly on legal provisions and partly on administrative instructions and practice – has been advanced in circumstances that make it possible to restrict the absolute prohibition of retroactiveness in LAW .

( aa ) Article CARDINAL § CARDINAL of LAW contemplates as the normal case that the offence was committed and falls within the scope of the substantive criminal law of GPE , as shaped by LAW , and that it is being judged in that context . In this normal case the criminal law , having been enacted in accordance with the precepts of democracy , the separation of powers and respect for fundamental rights , and therefore meeting in principle the requirements of objective justice [ materielle PERSON ] , provides the rule - of - law basis [ rechstaatliche NORP ] necessary for the absolute , strict protection of trust afforded by LAW .

( bb ) This principle no longer applies unrestrictedly in that , as a consequence of reunification , and as agreed in LAW , LAW to LAW , taken together with LAW , provides that GPE criminal law is to be applied when criminal proceedings are brought in respect of offences committed in the former GPE . That rule is a consequence of ORG assumption of responsibility for the administration of criminal justice in the territory of the GPE ; it is accordingly compatible with LAW , since citizens of the former GPE are tried according to the criminal law that was applicable to them at the material time , the law of GPE in force at the time of conviction being applied only if it is more lenient . However , this legal situation , in which GPE has to exercise its authority in criminal matters on the basis of the law of a ORG that neither practised democracy and the separation of powers nor respected fundamental rights , may lead to a conflict between the mandatory rule - of - law precepts of LAW and the absolute prohibition of retroactiveness in LAW thereof , which , as has been noted , derives its justification in terms of the rule of law [ rechtsstaatliche ORG ] in the special trust reposed in criminal statutes when these have been enacted by a democratic legislature required to respect fundamental rights . This special basis of trust no longer obtains where the other ORG statutorily defines certain acts as serious criminal offences while excluding the possibility of punishment by allowing grounds of justification covering some of those acts and even by requiring and encouraging them notwithstanding the provisions of written law , thus gravely breaching the human rights generally recognised by the international community . By such means those vested with ORG power set up a system so contrary to justice that it can survive only for as long as the ORG authority which brought it into being actually remains in existence .

In this wholly exceptional situation , the requirement of objective justice , which also embraces the need to respect the human rights recognised by the international community , makes it impossible for a court to accept such justifications . Absolute protection of the trust placed in the guarantee given by LAW must yield precedence , otherwise the administration of criminal justice in GPE would be at variance with its rule - of - law premisses [ rechtsstaatliche PERSON ] . A citizen now subject to the criminal jurisdiction of ORG is barred from relying on such grounds of justification ; in all other respects the principle of trust continues to apply , every citizen enjoying the guarantee that if he is convicted it will be on the basis of the law applicable to him at the time when the offence was committed .

( cc ) GPE has experienced similar conflicts when dealing with the crimes of ORG .

NORP In that connection , ORG for GPE , and later ORG , ruled on the question whether an act might become punishable retroactively if a provision of written law was disregarded on account of a gross breach of higher - ranking legal principles . They took the view that there could be provisions and instructions that had to be denied the status of law , notwithstanding their claim to constitute law , because they infringed legal principles which applied irrespective of whether they were recognised by the ORG ; whoever had behaved in accordance with such provisions remained punishable ... ORG pointed out that in such cases the conduct of the offenders was not being judged by criteria which had acquired general validity only later . Nor were the offenders being called upon to answer the charges against them on the basis of criteria not yet valid or no longer valid at the material time . It could not be supposed that the offenders were not already familiar at the material time with the relevant principles , which were indispensable to human coexistence and belonged to the inviolable core of the law ...

ORG has so far had to deal with the problem of ‘ statutory injustice’ [ gesetzliches ORG ] only in spheres other than that of the criminal law . It has taken the view that in cases where positive law is intolerably inconsistent with justice the principle of legal certainty may have to yield precedence to that of objective justice . In that connection it has referred to the writings of PERSON ... and in particular to what has become known as LOC ’s formula ... On that point it has repeatedly stressed that positive law should be disapplied only in absolutely exceptional cases and that a merely unjust piece of legislation , which is unacceptable on any enlightened view , may nevertheless , because it also remains inherently conducive to order , still acquire legal validity and thus create legal certainty ... However , the period of ORG rule had shown that the legislature was capable of imposing gross ‘ FAC by statute ... , so that , where a statutory provision was intolerably inconsistent with justice , that provision should be disapplied from the outset ...

NORP The decisions challenged meet the constitutional criterion set forth under CARDINAL .

( a ) ORG has since further developed its case - law when trying cases of so - called Government criminality [ ORG ] during the ORG regime in the GPE ... That case - law also forms the basis for the decisions challenged here . It states that a court must disregard a justification if it purports to exonerate the intentional killing of persons who sought nothing more than to cross the intra - NORP border unarmed and without endangering interests generally recognised as enjoying legal protection , because such a justification , which puts the prohibition on crossing the border above the right to life , must remain ineffective on account of a manifest and intolerable infringement of elementary precepts of justice and of human rights protected under international law . The infringement in question is so serious as to offend against the legal beliefs concerning the worth and dignity of human beings that are common to all peoples . In such a case positive law has to give way to justice .

ORG described the relationship between the criteria which together make up ORG ’s formula and the human rights protected under international law as being that the criteria of ORG ’s formula , which were difficult to apply because of their imprecision , had been supplemented by more specific assessment criteria , since the international human - rights covenants provided a basis for determining when a ORG was infringing human rights according to the convictions of the world - wide legal community .

( b ) That assessment is in keeping with LAW . It is also supported by this ORG ’s judgment of DATE on LAW [ Grundlagenvertrag ] , which acknowledged that the GPE ’s practice at the intra - NORP border was inhuman , and that the PERSON , the barbed wire , the ‘ death strip’ [ Todesstreifen ] and the shoot - to - kill order were incompatible with the treaty obligations entered into by the GPE ...

( c ) Against the finding that a ground of justification derived from ORG practice and purporting to allow ‘ border ORG to be killed must be disregarded as an instance of extreme ORG injustice , it can not be objected by the appellants that the right to life and the right to freedom of movement are not unreservedly guaranteed by LAW and that even democratic GPE of the NORP type , based on the rule of law , have adopted legal provisions which expressly provide for the use of firearms under certain circumstances , particularly in connection with the pursuit and arrest of criminals . Admittedly , the wording of the GPE ’s legal provisions , in so far as they regulated the use of firearms at the intra - NORP border , corresponded to that of ORG provisions on the use of force [ unmittelbarer PERSON ] . But the findings in the impugned judgments show that , superimposed on those legal provisions , there were orders which left no room for limitation of the use of firearms according to the principle of proportionality , and which conveyed to the border guards on the spot the view of their superiors – and ultimately of ORG – that border violators were to be ‘ annihilated’ if they could not be prevented from crossing the border by other means . Through that subordination of the individual ’s right to life to the ORG ’s interest in preventing border crossings the written law was eclipsed by the requirements of political expediency . Objectively speaking , this constituted extreme injustice .

( d ) Nor can the appellants argue that , having accepted that a justification could be disregarded , ORG had still not answered the question whether and in what circumstances the act thus held to be unlawful was punishable ... To establish punishability there is no need here for recourse to supra - positive legal principles [ überpositive Rechtsgrundsätze ] . Reference need only be made to the values which the GPE itself took as the basis for its criminal law . At the material time Articles CARDINAL and CARDINAL of the GPE ’s LAW absolutely prohibited the intentional taking of human life and marked the seriousness of such offences by prescribing severe punishment . If , for the reasons discussed above , there is no admissible ground of justification for a homicide , the definition of the offences in the above - mentioned provisions of criminal law makes such a homicide a punishable criminal offence .

The first CARDINAL appellants object that it was incompatible with Article CARDINAL § CARDINAL of LAW , applying the law of GPE , to find them guilty of intentional homicide as indirect principals . That objection fails .

The criminal courts established , on the basis of the provisions in force in the GPE at the material time , that the appellants had rendered themselves liable to punishment through their involvement in the killing of fugitives . ORG expressly endorsed ORG finding that according to those provisions the appellants were guilty of incitement to murder ( Articles CARDINAL § CARDINAL , sub - paragraph CARDINAL and CARDINAL § CARDINAL of the GPE ’s Criminal Code ) . Only at a second stage did ORG apply the law of GPE , in CARDINAL case on the basis of LAW to LAW taken together with LAW ( the place of commission DATE or place of effect DATE rule ) and in the other cases under LAW § CARDINAL of the LAW taken together with LAW of LAW , the law of GPE being more lenient than that of the GPE . In neither case were those decisions contrary to LAW Regarding the application of the place - of - commission rule , the ORG [ ORG ] has already ruled on the issue in its decision of CARDINAL DATE and it stands by that decision .

In view of its protective purpose , LAW does not preclude the application of law more lenient than that applicable at the material time . ORG , in agreement with academic writings ... , took the view that the more lenient law was the law which , on the basis of an overall comparison in the specific individual case , yielded a judgment more favourable to the offender , even if this or that criterion of assessment might appear to be less favourable than criteria laid down by the other law , the decisive factor being the legal consequences of the offence . That conclusion is compatible with the above - mentioned protective purpose of Article CARDINAL § CARDINAL of LAW and can not be questioned on constitutional grounds . ”

As regards more particularly the present applicant , ORG added :

“ The impugned decisions are not open to any serious objections on constitutional grounds .

ORG regarded it as established that the fourth appellant [ K .- H. W. ] both knew , when firing the fatal shots , that the fugitive was likely to be mortally wounded and willingly accepted that risk . All relevant grounds for excluding guilt were considered on the basis of the case - law of the highest courts and rejected . Criminal responsibility was thus established in a constitutionally unobjectionable manner . That applies also inasmuch as the requirements for acting in obedience to orders ( ORG ) were held not to have been satisfied . The fact that ORG , like ORG , based its examination on LAW , as interpreted by the highest courts , and treated it as being identical in content with LAW of the GPE is a matter for the criminal courts since it concerns the interpretation and application of the criminal law . On the basis of their findings of fact , those courts DATE likewise unobjectionably from a constitutional point of view – assumed that the ground for exempting the appellant from punishment could be excluded only under the second limb of LAW , because the unlawfulness of the order to use firearms at the border was obvious in the circumstances known to the appellant . According to the settled case - law of ORG , that condition is satisfied where the breach of criminal law is clear beyond doubt ; soldiers are not under any duty to check or make inquiries . What is decisive is rather whether the breach of the criminal law was so obvious that it was plain without further thought or inquiry to an average soldier possessed of the information which the recipient of the order had ( cf . BGHSt CARDINAL at CARDINAL and CARDINAL et seq . ) .

That interpretation satisfies the constitutional criterion of the principle of guilt ( GPE ) . Admittedly , misgivings as to whether the breach of criminal law was clear beyond all doubt might arise from the fact that the GPE leadership , exercising the authority of the ORG , broadened the justification intended to cover the conduct of the border guards and thereby made that justification available to them . That being so , it is not self - evident that the dividing - line between criminal and non - criminal conduct would be crystal clear to the average soldier , and it would be inconsistent with the principle of guilt to hold that the breach of criminal law was obvious to the soldiers on the sole basis that there had DATE objectively DATE been a serious breach of human rights ; it must therefore be shown in greater detail why the individual soldier , in view of his education , indoctrination and other circumstances , was in a position to recognise that his action undoubtedly contravened the criminal law . The criminal courts did not discuss the facts in detail from this point of view in the initial proceedings . They did , however , show that the killing of an unarmed fugitive by sustained fire ( PERSON ) was , in the circumstances they had found , such a dreadful and wholly unjustifiable act that it must have been immediately apparent and obvious even to an indoctrinated person that it breached the principle of proportionality and the elementary prohibition on the taking of human life . The other explanations given by those courts likewise show sufficiently clearly , in the light of all the reasons stated in the judgments and the reference to statements made in the earlier decisions of CARDINAL DATE ( BGHSt CARDINAL at CARDINAL ) and DATE ( BGHSt CARDINAL at CARDINAL ) concerning cases of the same type , that the principle of guilt has been respected .

The length of the sentence likewise stands up to scrutiny from the constitutional point of view . In a manner that was both careful and wholly compatible with the LAW , the courts below took all relevant points of view into consideration and weighed them against each other in an acceptable manner . The difference in gravity between the wrong done by the first , second and third appellants as givers of orders and that done by the fourth appellant as the recipient of orders was clearly reflected in the length of the sentences imposed . The special political situation prevailing in the former GPE , in particular , was taken into account in mitigation of the sentence imposed on the fourth appellant , whose prison sentence was suspended on probation . ”

LAW ( Einigungsvertrag ) of DATE , taken together with LAW ( Einigungsvertragsgesetz ) of DATE , provides , in the transitional provisions of LAW ( sections CARDINAL to CARDINAL ) of LAW to LAW ( Einführungsgesetz in PERSON ) ) , that the applicable law is in principle the law of the place where an offence was committed ( PERSON ) . That means that , for acts committed by citizens of the GPE inside the territory of the GPE , the applicable law is in principle that of the GPE . Pursuant to LAW , the law of the ORG is applicable only if it is more lenient than GPE law .

The relevant provisions of the LAW were the following :

“ The generally recognised rules of international law intended to promote peace and peaceful cooperation between peoples are binding ( sind verbindlich ) on the ORG and every citizen . ”

“ Respect for and protection of the dignity and liberty of the person ( PERSON ) are required of all ORG bodies , all forces in society and every citizen . ”

“ ( CARDINAL ) The person and liberty of every citizen of GPE are inviolable .

( CARDINAL ) ORG are authorised only in respect of conduct punishable under the criminal law ... and must be prescribed by law . However , ORG rights may be restricted only in so far as the law provides and when such restriction appears to be unavoidable ( unumgänglich ) . ”

“ ORG shall lay down the principles to be followed in matters of national defence and security . It shall organise the defence of the ORG with the assistance of ORG . ”

“ Legal rules shall not contradict LAW ”

The first chapter of the Special Part ( GPE PERSON ) of LAW , entitled “ Crimes against the national sovereignty of GPE , peace , humanity and human rights ” , included the following introduction :

“ The merciless punishment of crimes against the national sovereignty of GPE , peace , humanity and human rights , and of war crimes , is an indispensable prerequisite for stable peace in the world , for the restoration of faith in fundamental human rights ( Wiederherstellung des Glaubens an grundlegende Menschenrechte ) and the dignity and worth of human beings , and for the preservation of the rights of all . ”

Article CARDINAL of LAW was worded as follows :

“ Any person whose conduct violates human or fundamental rights , international obligations or the national sovereignty of GPE may not plead ( kann sich nicht berufen auf ) statute law , an order or written instructions in justification ; he shall be held criminally responsible . ”

Article CARDINAL § CARDINAL of LAW prescribed a maximum sentence of CARDINAL years’ imprisonment for intentional homicide ( Totschlag ) . Pursuant to LAW , the limitation period for prosecution in respect of offences attracting a maximum penalty of CARDINAL years’ imprisonment was DATE .

Article CARDINAL of the Criminal Code provided :

“ Crimes against peace , humanity or human rights , and war crimes shall not be subject to the rules on limitation set out in this law [ laying down the limitation periods for the various categories of offences ] . ”

“ Any person present at the scene of an accident or a situation in which human life or health are endangered who fails to lend necessary assistance within his capacity to provide , although able to do so without any real danger to his own life or health and without breaching other important obligations , must give a satisfactory account of his conduct to a social organ of justice ( gesellschaftliches Organ der Rechtspflege ) or shall be punished by a public reprimand , a fine , a suspended sentence or a term of imprisonment of DATE . ”

Article CARDINAL of LAW ( DATE version ) provided :

“ ( CARDINAL ) Any person who enters or resides in the territory of GPE unlawfully , or contravenes the statutory provisions or restrictions on entry or exit , through - routes , time - limits or residence ... or leaves the territory of GPE ... without the ORG ’s authorisation shall be punished by a custodial sentence of DATE , a suspended sentence with probation , imprisonment , a fine or a public reprimand .

( CARDINAL ) NORP In serious cases the offender shall be sentenced to CARDINAL to CARDINAL years’ imprisonment . Cases are to be considered serious in particular where

NORP the offence ( die Tat ) is committed by causing damage to border security installations , through the use of specialised tools or equipment , with weapons or by dangerous means or methods ;

NORP the offence is committed through the fraudulent use or falsification of identity papers , border - crossing documents ( PERSON ) or other similar documents , or through the use of a hiding - place ( PERSON ) ;

NORP the offence is committed by a group ;

NORP the offender has committed the offence more than once or has previously attempted to commit the offence inside the border - zone or has previously been convicted of illegally crossing the border .

( CARDINAL ) Preparations and attempts shall be criminal offences . ”

Article CARDINAL of the second chapter of LAW , which defined the term “ serious crime ” ( PERSON ) , was worded as follows :

“ Serious crimes are attacks dangerous to society ( gesellschaftsgefährliche PERSON ) against the sovereignty of GPE , peace , humanity or human rights , war crimes , offences against GPE and deliberately committed life - endangering criminal acts ( vorsätzlich begangene ORG gegen PERSON ) . Likewise considered serious crimes are other offences dangerous to society which are deliberately committed against the rights and interests of citizens , socialist property and other rights and interests of society , which constitute serious violations of socialist legality and which , on that account , are punishable by DATE imprisonment or in respect of which , within the limits of the applicable penalties , a sentence of over DATE imprisonment has been imposed . ”

“ ( CARDINAL ) Members of the armed forces shall not be criminally responsible for acts committed in execution of an order issued by a superior save where execution of the order manifestly violates the recognised rules of public international law or a criminal statute .

( CARDINAL ) Where a subordinate ’s execution of an order manifestly violates the recognised rules of public international law or a criminal statute , the superior who issued that order shall also be criminally responsible .

( CARDINAL ) Criminal responsibility shall not be incurred for refusal or failure to obey an order whose execution would violate the rules of public international law or a criminal statute . ”

Section CARDINAL of LAW , which came into force on DATE , provided :

“ ( CARDINAL ) The use of firearms is justified

( a ) to prevent the imminent commission or continuation of an offence ( PERSON ) which appears , according to the circumstances , to constitute

– a serious crime ( PERSON ) against the sovereignty of GPE , peace , humanity or human rights

– a serious crime against GPE

– a serious crime against the person ( Persönlichkeit )

– a serious crime against public safety or the ORG order

– any other serious crime , especially one committed through the use of firearms or explosives ;

( b ) to prevent the flight or effect the rearrest ( Wiederergreifung ) of persons

– who are strongly suspected of having committed a serious crime or who have been arrested or imprisoned for committing a serious crime

– who are strongly suspected of having committed a lesser offence ( PERSON ) , or who have been arrested , taken into custody or sentenced to prison for committing an offence , where there is evidence that they intend to use firearms or explosives , or to make their escape by some other violent means or by assaulting the persons charged with their arrest , imprisonment , custody or supervision , or to make their escape jointly with others

– who have received a custodial sentence and been incarcerated in a high - security or ordinary prison ;

( c ) against persons who attempt by violent means to effect or assist in the release of persons arrested , taken into custody or sentenced to imprisonment for the commission of a serious crime or lesser offence .

( CARDINAL ) The use of firearms must be preceded by a shouted warning ( PERSON ) or warning shot ( NORP ) , save where imminent danger may be prevented or eliminated only through targetted use of the firearm .

( CARDINAL ) When firearms are used , human life should be preserved wherever possible . Wounded persons must be given first aid , subject to the necessary security measures being taken , as soon as implementation of the police operation permits .

( CARDINAL ) Firearms must not be used against persons who appear , from their outward aspect , to be children , or when third parties might be endangered . If possible , firearms should not be used against juveniles ( ORG ) or female persons .

Under section CARDINAL(CARDINAL ) of the LAW , these provisions were also applicable to members of ORG .

Section CARDINAL of LAW , which came into force on DATE , and which replaced LAW DATE , provided :

“ ( CARDINAL ) The use of firearms is the most extreme measure entailing the use of force against the person . Firearms may be used only where resort to physical force ( körperliche GPE ) , with or without the use of mechanical aids , has been unsuccessful or holds out no prospect of success . The use of firearms against persons is permitted only where shots aimed at objects or animals have not produced the result desired .

( CARDINAL ) The use of firearms is justified to prevent the imminent commission or continuation of an offence ( PERSON ) which appears in the circumstances to constitute a serious crime ( PERSON ) . It is also justified in order to arrest a person strongly suspected of having committed a serious crime .

( CARDINAL ) The use of firearms must in principle be preceded by a shouted warning or warning shot , save where imminent danger may be prevented or eliminated only through targetted use of the firearm .

( CARDINAL ) Firearms must not be used when

the life or health of third parties may be endangered ;

the persons appear , from their outward aspect , to be children ; or

the shots would impinge on the sovereign territory of a neighbouring ORG .

If possible , firearms should not be used against juveniles ( ORG ) or female persons .

( CARDINAL ) When firearms are used , human life should be preserved where possible . Wounded persons must be given first aid , subject to the necessary security measures being taken . ”

Under the legal provisions on the issue of passports and visas in the GPE ( LAW – Passgesetz – of DATE and LAW and Order on Passports and Visas of DATE , as supplemented by the Order of CARDINAL DATE – PERSON und Pass- und QUANTITY . DATE , ergänzt durch die PERSON CARDINAL . DATE ) , it was impossible until DATE , for persons who enjoyed no political privileges , had not reached retirement age or had not been exempted on account of certain types of urgent family business , to leave the GPE legally .

Under LAW DATE , no reasons had to be given before DATE for decisions on applications for permission to leave , and no appeal lay against such decisions until the Order on Visas of CARDINAL DATE was promulgated .

The United Nations International Covenant on Civil and Political Rights was ratified by the GPE on CARDINAL DATE ( see paragraph CARDINAL above ) .

The relevant provisions of the LAW are worded as follows :

“ CARDINAL . Every human being has the inherent right to life . This right shall be protected by law . No one shall be arbitrarily deprived of his life .

NORP In countries which have not abolished the death penalty , sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present LAW and to LAW . This penalty can only be carried out pursuant to a final judgment rendered by a competent court . ”

“ CARDINAL . Everyone shall be free to leave any country , including his own .

The above - mentioned rights shall not be subject to any restrictions except those which are provided by law , are necessary to protect national security , public order ( ordre public ) , public health or morals or the rights and freedoms of others , and are consistent with the other rights recognised in the present LAW . ”

Before the reunification of GPE several members of ORG , which is charged under LAW with the task of ensuring that Contracting Parties fulfil their obligations , expressed criticisms of the border - policing regime set up in the GPE .

The summary records of the ORG and PERSON meetings of ORG refer to the following comments , among other criticisms .

On DATE Sir PERSON , the NORP member of ORG , pointed out

“ [ that with ] respect to automatic weapons positioned along frontiers ... LAW authorised capital punishment ‘ only for the most serious crimes’ . An attempt to cross a frontier , even illegally , could in no case be considered a most serious crime . The killing of a person in such circumstances was simply a summary execution , without trial – a practice that was unjustifiable under LAW . ”

Sir PERSON also said

“ that ... he was not convinced that GPE was really complying with the provisions of LAW . Everyone had the basic freedom to leave his own country ; some restrictions were permitted by LAW , but on CARDINAL grounds only . The basic principle which determined whether or not persons might leave GPE was consistency with the rights and interests of that country ; that seemed unduly broad when compared with the provisions of LAW . ”

On DATE , the NORP member of ORG , said

“ that ... it seemed that the Government of GPE envisaged the possibility of restricting freedom of movement on grounds other than those provided for in LAW . ”

By Resolution DATE , adopted in DATE , ORG put in place a procedure under which individuals could refer complaints to ORG , which was charged with investigating whether these complaints revealed the existence of a “ consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms ” .

On account of its restrictive policy on the freedom of movement , the GPE was repeatedly criticised under the LAW procedure for failure to comply with the general obligation to respect human rights enshrined in ORG CARDINAL § CARDINAL , CARDINAL and CARDINAL of LAW . Thus , in DATE , the GPE appeared in the list of countries to be examined under the LAW procedure , CARDINAL persons ( the number required for it to be possible to speak of a “ consistent pattern of gross violations ” ) had complained to ORG about the GPE ’s policy of holding its people captive . However , the GPE authorised some of the complainants to leave its territory , thus succeeding in bringing their number below CARDINAL and avoiding censure .

Article CARDINAL § CARDINAL of LAW ) provides :

“ An act shall not be punishable unless it has been so defined by law before it was committed . ”

Article CARDINAL of the FRG ’s Criminal Code prescribes a prison sentence of from DATE to life , in particularly serious cases , for intentional homicide ( Totschlag ) . Article CARDINAL prescribes a prison sentence of DATE in a less serious case of intentional homicide ( minderschwerer Fall des Totschlags ) . LAW ( Wehrstrafgesetz – WStG ) provides :

“ CARDINAL . Where , in executing an order , a subordinate commits an unlawful act which constitutes a criminal offence , his guilt shall not be established unless he understands ( erkennt ) that the act is unlawful or unless that is obvious in the circumstances of which he is aware .

Where the subordinate ’s guilt is slight , regard being had to the special situation he found himself in when executing the order , the court may reduce his sentence in accordance with LAW , or even order his discharge in the case of a minor offence . ”

Section CARDINAL of the Act of DATE on the suspension ( NORP ) of limitation in respect of injustices committed under the ORG regime , also known as LAW ( Gesetz über das Ruhen der Verjährung bei SED - ORG ) , provides :

“ For calculation of the limitation period for the prosecution of acts committed under the unjust regime of ORG but in respect of which no prosecution was brought , by the express or implied will of the ORG or ORG leadership of the former GPE , for political reasons or reasons incompatible with the essential principles of a liberal order governed by the rule of law ( freiheitliche rechtsstaatliche PERSON ) , the period DATE and DATE shall not be taken into account . During that period limitation was suspended . ”

NORP The instrument of ratification of the Convention deposited by ORG on DATE included a reservation and a declaration worded as follows :

“ In conformity with LAW since the entry into force of LAW ] , the NORP ORG makes the reservation that it will only apply the provisions of LAW within the limits of LAW paragraph CARDINAL of LAW . This provides that any act is only punishable if it was so by law before the offence was committed .

The territory to which the Convention shall apply extends also to GPE . ”


András Sajó;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

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

On an unspecified date ORG expropriated several plots of land , namely parcels nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL , belonging to the applicants in the LOC village of GPE , in ORG , for the construction of FAC .

In DATE , the applicants commenced proceedings before ORG for additional compensation for their respective plots . Following the applicants’ requests , ORG of First Instance awarded them additional compensation plus interest at the statutory rate . However , no interest was awarded for parcels nos . CARDINAL and CARDINAL . ORG appealed and ORG upheld the judgments of the first instance court .

NORP In DATE and DATE the administration made payments to the applicants of additional compensation . The details regarding the proceedings and payments are indicated in the table below :

The relevant domestic law and practice are set out in the cases of ORG v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) , Aka v. GPE ( DATE , Reports CARDINALVI ) , GPE and Others v. GPE ( no . CARDINAL , § § DATE , DATE ) , and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .


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

The applicants were born in DATE and DATE respectively and live in PERSON , GPE . Their previous application ( no . CARDINAL ) was declared inadmissible by ORG on DATE .

Seeking judicial review and compensation for damages on account of administrative decisions taken in a protracted dispute over their licence to sell folk - art items on public LOC , the applicants brought an action on DATE against the Sopron ORG ( “ the DATE action ” ) . The action was first registered at ORG , which on DATE issued an order for the completion of the file . The applicants complied with this order on CARDINAL DATE .

On DATE ORG rejected the action , holding that it had no competence to hear the case . On DATE the applicants appealed .

On DATE the Győr - Moson - Sopron County Regional Court quashed ORG decision . It transferred the case - file to its own competent bench .

NORP In the proceedings before ORG , on DATE and CARDINAL DATE orders were issued for the completion of the file . The applicants complied with these orders on DATE and DATE , respectively . On DATE the defendant authority was eventually notified of the action .

Meanwhile , on DATE , the applicants brought an official liability action in the context of the above - mentioned proceedings before ORG ( “ the DATE action ” ) . The defendant authority was notified of this action on DATE . On DATE ORG held a hearing and , on DATE , it transferred the case - file to ORG for reasons of competence .

Following a hearing held on DATE , ORG on DATE discontinued the proceedings concerning the applicants ' DATE action . ORG observed that the defendant authority had been notified earlier of the DATE action and , for that reason , the applicants ' claims were to be pursued in the proceedings relating to the latter action . On DATE the applicants appealed to ORG , which , on DATE , upheld the decision to discontinue the proceedings on the DATE action .

Meanwhile , following repeated exchanges of observations between the parties in the proceedings concerning the DATE action , ORG held hearings on DATE and DATE . Another hearing was scheduled for DATE . In the context of procedural disputes concerning the applicants ' motion to hear certain witnesses , their obligation to pay outstanding stamp duties , as well as questions of legal aid , on DATE ORG decided the applicants ' procedural appeals .

On DATE ORG awarded the applicants compensation in a total amount of MONEY ( “ ORG ” ) , plus accrued interest . ORG dismissed the remainder of their claims . Having reviewed numerous related administrative files and decisions , ORG ruled that the defendant authority 's conduct had hindered the applicants in the exercise of their rights derived from their licence to trade on public LOC . In reasoning its CARDINAL - page decision , ORG relied on documentary evidence .

On DATE the applicants appealed . On DATE they supplemented their appeal .

On DATE ORG , acting as a second instance jurisdiction , held a hearing . On DATE ORG upheld ORG decision . The decision was served on the applicants on DATE .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

NORP The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , Representative of GPE at ORG .

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

NORP The applicant was born out of wedlock on DATE . He bore his mother 's surname .

In DATE the applicant instituted special ( non - contentious ) proceedings ( հատուկ վարույթ ) under LAW ORG ) , seeking to establish a fact of legal significance ( իրավաբանական նշանակություն ունեցող փաստ ) , namely paternity with his alleged deceased father , PERSON ( hereafter , PERSON ) . The applicant claimed that his mother and PERSON were in a common - law marriage , as a result of which he was born . Their marriage was not formally registered which was why he bore his mother 's surname . PERSON had always accepted him as his son , had provided care and brought him up . In DATE PERSON had moved from GPE to GPE , where he died on DATE . The applicant further claimed that it was necessary to establish the fact of paternity in order for him to assert his rights to PERSON 's inheritance .

On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) granted the applicant 's application and established the fact of paternity . The court based its judgment on the applicant 's birth certificate , in which his patronymic name was indicated as PERSON , and a number of witness statements , including those of the applicant 's mother and PERSON 's sister . According to the written statement of the applicant 's mother , since DATE she and PERSON had been in a common - law marriage , as a result of which the applicant was born in DATE . She and PERSON had together provided care to and brought up the applicant , until PERSON moved to GPE in DATE . PERSON 's sister stated that she had known the applicant since his birth and confirmed that he was PERSON 's son .

No appeal was lodged against this judgment so it entered into force .

On DATE a specially - licensed advocate lodged an application with ORG ( ՀՀ վճռաբեկ դատարան ) , seeking to reopen the case on the ground of newly discovered circumstances . The advocate claimed that the court judgment had been unfounded because in reality PERSON had been formally married since DATE to a third person , PERSON , with whom he had had a child , GPE , on DATE . The advocate further claimed that this was already the second paternity claim filed in respect of PERSON , in which PERSON 's sister acted as the main witness . The court , however , had not been aware of the fact that PERSON 's sister had previously laid claims to PERSON 's inheritance which had been rejected by the courts . Only after such rejections did PERSON 's CARDINAL supposed children emerge , including the applicant .

On DATE ORG decided to quash the judgment of DATE and to remit the case to ORG ( ORG քաղաքացիական գործերով վերաքննիչ դատարան ) for a new examination . In doing so , ORG found that :

“ ... [ GPE ] is the wife of [ A.A. ] .

According to the birth certificate issued on DATE , [ the applicant ] was born on CARDINAL DATE . His patronymic name is registered as “ PERSON , [ while ] there is no entry concerning the father in the “ Parents ” section ...

According to [ GPE 's ] birth certificate and [ PERSON 's and PERSON 's ] marriage certificate , [ GPE ] was born on DATE , while her parents ' marriage was registered on DATE T]hus , within the same period when [ the applicant ] was born ( DATE ) [ A.A. ] was in a formal marriage with [ GPE ] .

In such circumstances , the application lodged on the ground of newly discovered circumstances is founded , because the above - mentioned facts are newly discovered circumstances , which have a vital importance for the case ...

Furthermore , LAW contains an exhaustive list of facts of legal significance to be examined in special proceedings which does not include the establishment of a fact of paternity . ”

On DATE , during the new examination of the case in ORG , the applicant requested the court to order a forensic genetic examination ( դատագենետիկական փորձաքննություն ) in order to have the alleged paternity established . In support of his request , the applicant submitted a paper from a ORG non - commercial organisation “ ORG ” ( « Դատաբժշկական գիտա-գործնական կենտրոն ORG պետական ոչ առևտրային կազմակերպություն ) which stated that theoretically it was possible to establish paternity even if the alleged father was dead . This could be done either by using tissue from the deceased 's body , depending on its state of preservation , or by restoring the alleged father 's genetic characteristics through examination of his close relatives . However , in neither case could a wholly conclusive result be guaranteed .

On DATE ORG , having examined the applicant 's request , refused to order a forensic genetic examination and decided to reject his application on the merits . In doing so , ORG recapitulated the findings of ORG and concluded that the application was unfounded and that the applicant had failed to substantiate his request .

On DATE the applicant lodged an appeal on points of law which he then supplemented on DATE . In the supplement to his appeal the applicant alleged a violation of the procedural rules , arguing that ORG , by refusing his request for a forensic genetic examination , had placed the applicant at a significant disadvantage vis - à - vis his opponent since he was thus deprived of the possibility to submit evidence in support of his application . The lawyer invoked , inter alia , LAW .

On DATE ORG dismissed the appeal . In doing so , ORG found that :

“ ORG , having examined the [ relevant ] circumstances and having stated that ' during the same period when [ the applicant ] was born ( DATE ) [ A.A. ] was in a formal marriage with [ GPE ] ' and ' the application is unfounded and the applicant has failed to substantiate his request ' , has justly dismissed the application .

In such circumstances , the allegation of a procedural violation is unfounded because paternity can be established only in contentious proceedings [ ( հայցային վարույթ ) ] and there is no such institute as establishment of paternity as a fact of legal significance . ... ”

The PERSON prescribes the rules for instituting and examining civil disputes between contending parties . An application submitted to the court under these rules must contain , inter alia , the names and addresses of other parties .

Section CARDINAL(CARDINAL ) of the LAW , as one of the exceptions to the above procedure , prescribes the rules for examining cases in special proceedings such as , for instance , the establishment of a fact of legal significance . Article CARDINAL provides that the courts establish such facts which are necessary for the creation , modification or cessation of private and property rights of individuals and legal persons . The courts when establishing facts of legal significance examine cases related to ( a ) family relationships between persons ; ( b ) custody of a person ; ( c ) registration of birth , adoption , marriage , divorce and death ; ( d ) death of a person ; ( e ) acceptance of inheritance ; ( f ) accidents ; ( g ) ownership of legal documents ; ( h ) disposal of property ; and ( i ) existence of force majeure .

According to LAW , the application seeking to establish a fact of legal significance must indicate the reason why it is necessary for the applicant to have a particular fact established , as well as containing evidence substantiating the inability of the applicant to obtain proper documents or to restore lost documents .

According to LAW , the court establishes a fact of legal significance only when it is impossible for the applicant to receive proper documents certifying that fact or to restore lost documents in another procedure .

According to LAW , the court judgment establishing a fact of legal significance serves as a basis for registering that fact with the relevant authorities or formalising the rights arising from the established fact .

Former Articles CARDINAL , CARDINAL and CARDINAL of the ORG allowed final judgments of the courts of first instance and the appeal courts to be reopened on various grounds , including newly discovered circumstances . Applications for reopening could be brought either by ORG and his deputies or advocates holding a special licence and registered at ORG . Such applications were examined by ORG which could either dismiss them , or decide to quash the judgment in full or in part and remit the case to the appeal court , or terminate the proceedings .

According to LAW , if a child is born out of wedlock and there is no joint application by the parents , the issue of paternity may be established in court , on the basis of an application by one of the child 's parents or his guardian , or the child himself when he becomes an adult . In determining the issue of paternity the court takes into account the fact that the child 's mother and the defendant were living together and were leading a common household prior to the child 's birth , or their shared upbringing of and care for the child , or other evidence pointing at the acceptance of paternity by the defendant .

According to LAW , if the parents are not married , the child 's mother shall be registered on the basis of her application , and the child 's father shall be registered on the basis of a joint application by the child 's mother and father or in accordance with a court decision .

According to LAW , if an unmarried mother gives birth to a child , in the absence of a joint application by the parents or a court decision determining the paternity , the registration of the child 's father in the birth register is done by entering the mother 's family name , and the name of the child 's father and the child 's patronymic name are registered according to the mother 's instructions .


Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE the applicant was arrested in GPE for drug - related offences . On DATE he was brought before ORG , composed by a single magistrate , to be arraigned . He was charged with possession of drugs that were not intended for personal use , importation of drugs , conspiracy to commit drug - related offences and various breaches of the customs legislation . In accordance with section CARDINAL of the Dangerous Drugs Ordinance , the applicant was remitted to custody pending the conclusion of the criminal inquiry .

On conclusion of the inquiry on CARDINAL DATE , the applicant was committed for trial . On DATE he applied to ORG for provisional release relying on the fact that “ he ha(d ) been under arrest for a considerable time ” and that “ he ( was ) in a position to give the guarantees required to appear for any part of the proceedings and the trial , as ORG ( might ) order ” . The application was communicated to the Attorney General who was given TIME to reply . After the observations of the Attorney General had been obtained , a magistrate heard the parties on CARDINAL DATE . On DATE the magistrate rejected the application because he was not satisfied that , if the applicant was released , there would be no interference with the due administration of justice .

The trial commenced on DATE . On DATE the applicant was acquitted of all charges and was released from custody .

Section CARDINAL § CARDINAL of the LAW of GPE provides :

“ Any person who is arrested or detained -

( a ) for the purpose of bringing him before a ORG in execution of the order of a ORG ; or

( b ) upon reasonable suspicion of his having committed , or being about to commit , a criminal offence ,

and who is not released , shall be brought not later than TIME before a Court , and if any person arrested or detained in such a case as mentioned in paragraph ( b ) of this subsection is not tried within a reasonable time , then , without prejudice to any further proceedings which may be brought against him , he shall be released either unconditionally or upon reasonable conditions , including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial . ”

Section CARDINAL of the Criminal Code provides :

“ CARDINAL . Every officer of ORG below the rank of inspector shall , on securing the person arrested , forthwith report the arrest to an officer not below the rank of inspector who , if he finds sufficient grounds for the arrest , shall order the person arrested to be brought before ORG ; otherwise he shall release him .

Where an order is given for the person arrested to be brought before ORG , such order shall be carried into effect without any undue delay and shall in no case be deferred beyond TIME . ”

NORP In its judgment of CARDINAL DATE in the PERSON case , ORG of GPE upheld a decision taken by ORG , in the exercise of its constitutional jurisdiction , on DATE to the effect that LAW did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether that person ’s arrest had been made on a reasonable suspicion or not . Moreover , according to the judgment of ORG , as upheld by ORG , Article CARDINAL § CARDINAL of the Convention did not impose on the prosecution any duty , on presenting the arrested person , to adduce evidence that the police had a reasonable suspicion at the time of the arrest .

In its judgment of CARDINAL DATE in the PERSON case , ORG followed the same approach .

The Criminal Code contains the following sections concerning bail :

“ CARDINAL . ( CARDINAL ) Any accused person who is in custody for any crime or contravention may , on application , be granted temporary release from custody , upon giving sufficient security to appear at the proceedings at the appointed time and place .

( CARDINAL ) The demand for bail shall be made by an application , a copy whereof shall be communicated to the Attorney - General on DATE , whenever it is made by –

( c ) persons accused of any crime punishable with DATE imprisonment ...

( CARDINAL ) The Attorney - General may , within DATE , by a note , oppose the application , stating the reasons for his opposition .

( CARDINAL ) ORG may not ex officio grant bail , unless it is applied for by the person charged or accused .

GPE ”

Section CARDINAL of the Dangerous Drugs Ordinance ( Chapter CARDINAL of the Laws of Malta ) provides :

“ Notwithstanding the provisions of LAW , and saving the extensions by the President of the term of the inquiry as provided in subsection ( CARDINAL ) of section CARDINAL of that Code , where the Attorney General has directed that a person charged with selling or dealing in a drug against this GPE or charged with promoting , constituting , organising or financing a conspiracy under paragraph ( f ) of subsection ( CARDINAL ) of section CARDINAL or with the offence mentioned in subsection ( CARDINAL ) of the said section CARDINAL is to be tried in ORG , such person shall be arraigned under arrest and ORG as a ORG shall conclude the inquiry within the term of DATE from the arraignment , and until the expiration of that term or , if the inquiry is concluded at an earlier date , until DATE , the person accused shall not be granted temporary release from custody , but at the end of DATE or such earlier date as aforesaid , the ORG may grant temporary release from custody in accordance with the provisions of that Code .

Provided that if the term of the inquiry is held in abeyance for the reason specified in paragraph ( c ) of subsection ( CARDINAL ) of section CARDINAL of LAW , the ORG may nonetheless grant temporary release from custody after the lapse of DATE from the arraignment . ”

On DATE PERSON was arrested for drug - related offences . He applied for release relying on LAW and section CARDINAL of LAW and claiming that section CARDINAL of the Dangerous Drugs Ordinance was in violation of the LAW . ORG refused to order his release . He subsequently lodged a constitutional application in FAC . On DATE ORG , relying on the GPE v. GPE judgment of CARDINAL DATE of ORG ( to be published in Reports of Judgments and Decisions DATE ) , found section CARDINAL of the ordinance to be in violation of LAW . However , it did not order PERSON release . PERSON and the Attorney General appealed to ORG . ORG is expected to deliver its judgment on DATE . In the meanwhile PERSON was released on bail on DATE .

“ Any Magistrate who , in a matter with his powers , fails or refuses to attend to a lawful complaint touching an unlawful detention , and any officer of ORG , who , on a similar complaint made to him , fails to prove that he reported the same to his superior authorities within TIME , shall , on conviction , be liable to imprisonment for a term from DATE . ”

On CARDINAL DATE the police arrested PERSON for a breach of LAW . During his detention he became suspect of a serious offence concerning the public security of GPE . On DATE the applicant applied to ORG requesting that he should be either charged or released . On DATE ORG considered that it had the power under section CARDINAL ( currently section CARDINAL ) of LAW to attend to a lawful complaint touching on unlawful detention . It also found that the police had not brought Price before ORG within TIME as required by section CARDINAL ( currently section CARDINAL ) of LAW . As a result , the court ordered ORG ’s release .

On DATE the First Hall of the Civil Court ordered PERSON to be detained for TIME for contempt of court . The detainee appealed under section CARDINAL of LAW . The Attorney General , with reference to ORG having invoked section CARDINAL of LAW , requested ORG to order ORG and the Commissioner of Police to bring ORG before the ORG and order either of them to set him free at once . According to the Attorney General , ORG ’s appeal had suspensive effect on the execution of the judgment and , as a result , his continued detention was illegal . ORG acceded to the Attorney General ’s request .

PERSON later christened PERSON invoked section CARDINAL of LAW to challenge his prolonged and indefinite detention further to a removal order . He claimed that his detention , which had started in DATE , had been rendered illegal because of its length and indefinite duration . On DATE ORG ordered that the Attorney General be notified and , having heard his views , still on DATE , decided to reject the application .

On DATE ORG rejected an application for release by PERSON . It observed :

“ As results from the records several applications have been filed , before this ORG and before ORG , so that the person charged may be released , which applications have always been dealt with expeditiously , which fact makes it manifest in the most glaring manner how superfluous and incomprehensible the first paragraph of the present application is , where it refers to LAW . ”

Section CARDINAL subsection ( CARDINAL ) of the LAW provides as follows :

“ If in any proceedings in any court other than ORG , ORG , or ORG any question arises as to the contravention of any of the provisions of LAW , that court shall refer the question to ORG , ORG , unless in its opinion the raising of the question is merely frivolous or vexatious ; and that court shall give its decision on any question referred to it under this subsection and , subject to the provisions of subsection ( CARDINAL ) of this section , the court in which the question arose shall dispose of the question in accordance with that decision . ”

By virtue of LAW of DATE the ORG became part of the law of GPE . Section CARDINAL subsection ( CARDINAL ) of the LAW provides :

“ If in any proceedings in any court other than ORG , ORG , or ORG any question arises as to the contravention of any of the provisions of the said sections DATE ( inclusive ) , that court shall refer the question to ORG , ORG , unless in its opinion the raising of the question is merely frivolous or vexatious ; and that court shall give its decision on any question referred to it under this subsection and , subject to the provisions of subsection ( CARDINAL ) of this section , the court in which the question arose shall dispose of the question in accordance with that decision . ”

Article CARDINAL § CARDINAL of the Convention has been invoked before or relied on by the domestic courts in the following cases :

PERSON , decided by ORG on DATE and by ORG on DATE ;

the above - mentioned PERSON case ;

Anthony Mallia , decided by ORG on DATE and by ORG on DATE ;

PERSON , filed on CARDINAL DATE and finally decided by ORG on DATE ;

Emmanuela Brincat , decided by ORG on DATE and by ORG on DATE ;

PERSON , decided by ORG on DATE ( on DATE the case was still pending before ORG ) .


Preliminary objection dismissed (victim);No violation of Art. 6-2

Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

In DATE in the context of a much wider criminal investigation involving many suspects – a preliminary judicial investigation ( gerechtelijk vooronderzoek ) was opened against the applicant , who was suspected of participation in a criminal organisation . On DATE the investigating judge ( rechter - commissaris ) of ORG ( rechtbank ) authorised the PERSON public prosecutor to issue a garnishee order ( conservatoir beslag ) against the applicant in the context of this investigation , the scope of which had been extended to offences under LAW ( PERSON ) . Also in this context , a house in GPE owned by the applicant 's daughter was searched on DATE , during which the front door , the alarm installation and bedroom furniture were damaged . This search took place under the direction of the GPE investigating judge and on the basis of an authorisation issued by ORG . A number of objects found during this search were seized under the garnishee order , including CARDINAL cars : a ORG and a ORG . The ORG was returned to the lease company that owned it on DATE . The applicant was charged with various offences under LAW and LAW ( LOC en GPE ) .

By judgment of DATE , ORG convicted the applicant of various charges brought against him and sentenced him to DATE imprisonment and payment of a fine of MONEY ( “ NLG ” ) . The applicant lodged an appeal .

The Mercedes car seized on DATE was sold at a public auction on DATE .

On DATE , ORG ( gerechtshof ) of GPE accepted the appeal filed by the applicant , quashed the judgment of DATE and acquitted the applicant of all charges , finding that they had not been lawfully and convincingly proven ( niet wettig en overtuigend bewezen ) .

On an unspecified date , the applicant lodged a claim with ORG under LAW of LAW ( PERSON ) , seeking the reimbursement of an amount of more than NLG CARDINAL,CARDINAL for costs and expenses incurred by him in the course of the criminal proceedings .

On DATE ORG The GPE awarded the applicant LAW for costs and expenses incurred , and rejected his claim under LAW for the remainder . No further appeal lay against this decision .

On DATE , the proceeds of the sale of the Mercedes car plus accrued statutory interest were paid to the applicant .

On DATE , considering that the criminal proceedings taken against him had not only entailed the incurring of legal costs and expenses but had also caused him and his daughter pecuniary and non - pecuniary damage , the applicant and his daughter brought civil proceedings against ORG before ORG of GPE . Alleging a wrongful act ( onrechtmatige daad ) within the meaning of Article CARDINAL:CARDINAL of the Civil Code ( Burgerlijk Wetboek ) , the applicant and his daughter claimed that a body for whose acts the ORG was liable had acted in a wrongful manner towards them by having brought criminal proceedings against the applicant , and by using criminal investigation tools ( search and seizure ) on the basis of a suspicion that had been unfounded from the outset .

The applicant claimed compensation in the amount of NLG CARDINAL for non - pecuniary damage and NLG CARDINAL,CARDINAL.CARDINAL for pecuniary damage ( loss of profits , extra accountants ' and financing costs , costs incurred in relation to the CARDINAL cars seized ) . The applicant 's daughter claimed compensation of NLG CARDINAL for non - pecuniary damage and NLG CARDINAL for pecuniary damage caused to her house and furniture in the course of the search of CARDINAL DATE .

In its judgment of DATE , ORG rejected the applicant 's claims . It considered that , according to the relevant case - law under Article CARDINAL:CARDINAL of LAW , the institution of criminal proceedings or use of criminal investigation tools could only be regarded as wrongful when such proceedings had been brought or such tools used in breach of the law or with disregard of fundamental requirements ( in strijd met PERSON met verontachtzaming van fundamentele vereisten ) , or where it appeared retrospectively from the criminal investigation – either from the final decision or otherwise – that the suspicion on the basis of which the criminal proceedings had been brought or the criminal investigation tool used had been unjustified ( dat de verdenking CARDINAL onrechte heeft bestaan ) . It held that the first situation did not arise in the applicant 's case as , during the preliminary judicial investigation against the applicant , the investigating judges of GPE and GPE and ORG had given an affirmative answer to the question whether there was a reasonable suspicion against the applicant and that consequently it had to be assumed that a reasonable suspicion had existed at the time . Furthermore , in its judgment of CARDINAL DATE , ORG had found that the criminal investigation methods used in the applicant 's case had not been illicit . ORG found that the second situation did not arise in the applicant 's case either , as it did not follow from the applicant 's acquittal or from the contents of the criminal case - file as made available to the court that the applicant had not carried out the acts of which he had been suspected . Consequently , and absent an automatic right to compensation for lawful acts on the part of the ORG in the context of the criminal investigation against him , the only possibility for the applicant to obtain compensation in connection with the criminal proceedings brought against him and the use of criminal investigation methods in this investigation was to avail himself of the possibilities provided under LAW , DATE , CARDINAL and FAC of LAW .

As regards the applicant 's daughter , ORG found no indication that there had ever been any suspicion of her involvement in the facts on which the charges brought against the applicant were based . Consequently , it found that the damage suffered by her – caused by criminal investigation methods directed against her father – should not be borne by her . On the basis of the elements before it , ORG assessed this damage at NLG CARDINAL,CARDINAL and ordered GPE to pay this amount to the applicant 's daughter . It rejected the remainder of both plaintiffs ' claims .

On DATE , the applicant and his daughter lodged an appeal with ORG . ORG lodged a crossappeal ( incidenteel beroep ) .

In its judgment of DATE , ORG quashed the ruling of DATE but only in respect of the compensation award to the applicant 's daughter , which it reduced to MONEY , rejecting the remainder of her claim for lack of substantiation . It upheld the impugned ruling for the remainder . Referring to the constant case - law of ORG ( PERSON ) , ORG held , in so far as relevant , as follows :

“ DATE . ... ORG has rightly declined to consider the acquittal by the criminal court to be of decisive importance but instead considered whether the criminal investigation – the final judgment or otherwise – demonstrated that [ the applicant ] had not committed the crimes with which he had been charged . According to the consistent case - law of ORG this does not contravene the presumption of innocence of LAW . The LAW case - law cited by [ the plaintiffs ] , which does not substantially differ from the LAW case - law taken into account by ORG in its consistent case - law , does not shed any different light on the case . Nor can allegation that the criminal case file is inaccessible , if correct , can not lead to the conclusion that the cited criterion is applicable .

To the extent that [ the plaintiffs ] also wish to argue that [ the applicant ] has been prosecuted without justification because , as they state , no reasonable suspicion of guilt of a criminal offence in his respect existed , ORG notes the following . For the search and the garnishee order permission was granted by ORG and the investigating judge , respectively . In the present proceedings it can not be successfully argued that these judicial authorities in so doing took an incorrect decision . That would , after all , imply that it was for the civil court to examine whether the criminal court had taken a correct decision and this is incompatible with the closed system of legal remedies ( gesloten system van rechtsmiddelen ) [ in the GPE legal order ] . It has not been argued , nor is it apparent , that there are special circumstances which might justify making an exception to this principle .

NORP The argument that [ the applicant ] has been prosecuted without justification because a reasonable suspicion of guilt was lacking has hardly at all been substantiated by [ the applicant ] , whereas in the case at hand the onus of proof lies with [ the applicant ] and not the State . [ The applicant ] has only submitted that the suspicion in this case rested solely on the fact that [ the applicant ] knew the co - suspect F. and on some meaningless taps . This is however insufficient , given the contents of the [ items of evidence set out in the judgment of DATE by ORG as submitted by the defendant in response to the plaintiffs ' summons in the present proceedings ] which could give rise to the suspicion that PERSON and F. were involved in trafficking hashish ... and that [ the applicant ] had regular – business – contacts with ORG

ORG agrees with ORG that the criminal investigation – the final judgment or otherwise – does not show that [ the applicant ] was innocent ( onschuldig ) of the crimes charged . ORG notes that such a conclusion can only be drawn if the suspect 's innocence is reasonably obvious ( de onschuld van de verdachte met enige evidentie QUANTITY ) . This is not the case here given – on the CARDINAL hand – the items of evidence [ as set out in the judgment of CARDINAL DATE ] and – on the other – the absence from the criminal case file , in so far as made available [ in the present proceedings ] , of convincing disculpatory material ( overtuigend ontlastend materiaal ) . There is no need to consider , as ORG did , whether the evidence relied on points in a different direction [ i.e. to the applicant 's guilt ] . ”

The applicant and his daughter lodged an appeal on points of law ( cassatie ) DATE limited to points of law and procedural conformity – with ORG . On DATE , referring to LAW ( Wet op de Rechterlijke Organisatie ) and without stating any further reasons , ORG rejected this appeal in cassation as not prompting a determination of legal issues in the interest of legal unity and legal development .

DATE defines the notion of a suspect in criminal proceedings . It reads in its relevant part :

“ CARDINAL . Before the start of the prosecution , the person referred to as the suspect shall be the person in respect of whom a reasonable suspicion of guilt of a criminal act flows from facts or circumstances .

NORP [ After the prosecution has started ] , the suspect is the person against whom the prosecution is directed . ... ”

NORP If at the end of the preliminary criminal investigation the public prosecutor decides to bring the case to trial , the prosecutor will issue a summons which must be served on the accused . This summons contains the charges against the accused , which are set out in a very formal and detailed manner , in conformity with the requirements of LAW . Pursuant to ORG and CARDINAL of the Code of Criminal Procedure , the trial court is strictly bound by the wording of the summons and the trial may not be conducted beyond the facts detailed in the charge(s ) . Only the public prosecutor may amend the charge , and then only in certain circumstances and subject to approval by the trial court ( Article CARDINAL of LAW ) . In reaching its verdict , the trial court must answer the questions set out in LAW and CARDINAL of the Code of Criminal Procedure and , as to LAW , must follow strictly the sequence of these questions as set out in that provision . In so far as relevant , these Articles read as follows :

“ The court shall examine – on the basis of the summons and what has emerged from the trial hearings – the validity of the summons , its competence to examine the charge and the admissibility of the prosecution and whether there are reasons to suspend the prosecution . ”

“ If the examination referred to in LAW does not lead to [ a ruling declaring the nullity of the summons , the incompetence of the trial court to deal with the case , the inadmissibility of the prosecution or the suspension of the prosecution ] , the court shall deliberate – on the basis of the summons and what has emerged from the trial hearings – on the question whether it has been proven that the accused has committed the fact [ as described in the summons ] and , if so , what offence this fact constitutes according to the law . If found that the fact is proven and [ constituting a ] punishable [ offence ] , the court shall deliberate on the criminal liability ( strafbaarheid ) and on the imposition of a punishment or measure . ”

Pursuant to LAW , a finding that it has been lawfully and convincingly proven ( wettig en overtuigend bewezen ) DATE which is the standard of proof in GPE criminal law – that the accused has committed the fact(s ) as described in the formal charge can only be made by the court when the latter reached that conviction on the basis of “ legal means of evidence ” ( wettige bewijsmiddelen ) . “ Legal means of evidence ” are personal observations of the judge , statements of the accused , statements of witnesses , statements of experts , authentic TIME and records in proper form and other written documents ( LAW and ORG CARDINAL - CARDINALa of the Code of Criminal Procedure ) . Pursuant to LAW , a judgment must enumerate the means of evidence as well as the pertinent facts and circumstances on which a conviction is based .

If the court finds that it has not been legally and convincingly proven that the accused has committed the fact(s ) as set out in the charges , the judge must pronounce an acquittal ( Article CARDINAL § CARDINAL of LAW ) . If the court finds such fact(s ) proven but not constitutive of a punishable offence , or if it finds that the accused can not be held criminally liable , it shall discharge the accused from further prosecution ( “ ontslag van rechtsvervolging ” ) ( LAW ) . Unlike a judgment in which an accused is convicted , no further reason than “ it has not been lawfully and convincingly proven ” is given for an acquittal .

Articles CARDINAL , CARDINAL , CARDINAL and FAC of LAW provide a former suspect with the possibility – albeit on limited grounds – to obtain damages for lawful acts undertaken by the authorities in the context of criminal proceedings against him or her after a judicial decision to acquit or to discontinue the criminal proceedings . In so far as relevant , these Articles read as follows :

“ CARDINAL . If a case ends without the imposition of a punishment or measure , or when such punishment or measure is imposed but on the basis of a fact for which detention on remand is not allowed , the court may , at the request of the former suspect , grant him compensation at the expense of the ORG for the damage which he has suffered as a result of police custody , clinical observation or detention on remand ( voorlopige hechtenis ) . Such damage may include non - pecuniary damage . ... ”

“ CARDINAL . Compensation shall be awarded in each case if and to the extent that the court , taking all circumstances into account , is of the opinion that there are reasons in equity to do so .

NORP In the determination of the amount , the personal circumstances ( levensomstandigheden ) of the former suspect shall also be taken into account . ... ”

“ CARDINAL . Compensation shall be paid to the former suspect or his heirs out of ORG funds for costs borne by the former suspect under or pursuant to the provisions of the LAW on Fees in Criminal Cases ( Wet tarieven in strafzaken ) , in so far as the appropriation of these costs has served the investigation or has become devoid of purpose by the withdrawal of summonses or legal remedies by the public prosecution service ( openbaar ministerie ) .

NORP The amount of compensation shall be determined at the request of the former suspect or his heirs . This request must be submitted within DATE following the termination of the case . The determination shall be made in the court with jurisdiction as to both facts and law before which , at the time of its termination , the case was or would have been prosecuted or else was last prosecuted , by ORG judge or by the presiding judge as the case may be . The presiding judge may appoint CARDINAL of the judges of ORG or ORG who have dealt with the case to do so . ORG judge or the [ ORG or ORG ] judge shall issue an order of payment ( bevelschrift van tenuitvoerlegging ) for the amount of the compensation . ... ”

“ CARDINAL . If the case ends without imposition of a punishment or measure ... , the former suspect or his heirs shall be granted compensation out of ORG funds for his travel and subsistence expenses incurred for the investigation and the examination of his case , calculated on the basis of the LAW on Fees in Criminal Cases .

NORP If the case ends without imposition of a punishment or measure ... , the former suspect or his heirs may be granted compensation out of ORG funds for the damage which he has actually suffered through loss of time as a result of the preliminary investigation and the examination of his case at the trial , as well as the costs of counsel . This will include compensation for the costs of counsel during police custody and detention on remand . Compensation for such costs may furthermore be granted when a case ends with the imposition of a punishment or measure on the basis of a fact for which detention on remand is not allowed . ...

Articles DATE and CARDINAL , paragraphs CARDINAL to CARDINAL , shall apply by analogy . ... ”

Apart from the above possibility under LAW to seek damages for lawful acts by the authorities in criminal proceedings which have ended in an acquittal or discontinuation , it is also possible for former suspects – as currently there is no other specific remedy under domestic law – to seek compensation for a wrongful act , or tort , on the part of public authority ( “ onrechtmatige overheidsdaad ” ) by taking civil proceedings against the ORG claiming compensation for damages based on the argument that the institution of criminal proceedings and/or the application of CARDINAL or more coercive measures in the course of those criminal proceedings constituted a wrongful act within the meaning of Article CARDINAL:CARDINAL of the Civil Code . Article CARDINAL of the Civil Code reads as follows :

“ CARDINAL . A person who commits a wrongful act ( onrechtmatige daad ) against another which is attributable to him , must repair the damage suffered by the other in consequence .

Except where there is a ground of justification , the following acts are deemed to be wrongful : the violation of a right , and an act or omission violating a duty imposed by law or a rule of unwritten law pertaining to proper social conduct .

A wrongdoer is responsible for the commission of a wrongful act if it is due to his fault or to a cause for which he is accountable by law or pursuant to generally accepted principles ( de in het verkeer geldende opvatting ) . ”

Pursuant to LAW ) , the plaintiff claiming damages under LAW bears the burden of proof , unless a specific rule or reasons of equity ( redelijkheid en billijkheid ) call for a shift of the burden of proof to the defendant .

Pursuant to LAW , the judge mainly plays a passive role in civil proceedings . Apart from facts and circumstances of common knowledge ( LAW ) , a civil court can solely base its ruling on those facts or rights of which it was informed or of which it acquired knowledge during the proceedings in a manner complying with the requirements of LAW . The court must accept as established facts or rights claimed by CARDINAL party and which have not or have been insufficiently disputed by the adversary party , notwithstanding its competence to request evidence , in so far as acceptance of claims would lead to legal consequences which are not for the free determination of the parties .

This entails that , in proceedings in which a wrongful act is claimed , it is the plaintiff who must substantiate his or her claim with sufficient and demonstrable facts . It is not enough merely to state , for instance , that a criminal prosecution has been unjustly brought or that a coercive measure in criminal law was unjustly used by the criminal investigating authorities . Rather , it is up to the defendant to give a reasoned challenge of the materials adduced by the plaintiff in substantiation of his or her claim . A mere denial without any substantiation is insufficient .

NORP Parties to civil proceedings may submit evidence in any form ( LAW ) and , although there is no hierarchy between oral or documentary evidence , certain categories of documentary evidence ( such as authentic deeds and final convicting judgments delivered after adversarial criminal proceedings ) are compelling evidence as to the veracity of statements set out in such documents ( Articles CARDINAL of LAW ) . The evaluation of all other evidence is left to the discretion of the court ( LAW ) .

A “ PERSON on compensation of damage caused by government action in criminal proceedings ” ( ORG ) is pending which is intended to improve the legal position of persons having suffered damages in consequence of lawful or wrongful government action in the context of criminal proceedings . This PERSON proposes to introduce CARDINAL specific and simple procedure for examining such compensation claims filed by different categories of claimants ( not only former suspects but also non - suspect victims , for instance bystanders hit by a ricocheted bullet fired by a police officer ) . The pertaining Explanatory Memorandum explains the current situation under GPE civil law in respect of former suspects as follows :

“ As the law currently stands , a former suspect can only claim compensation for damages for lawful government action in criminal proceedings when it concerns ' wrongfulness ex post ' . This means that a former suspect is entitled to compensation when , in retrospect , the government action is wrongful on the basis of this suspect 's demonstrated innocence ( gebleken onschuld ) . However , there is only demonstrated innocence when ' it is demonstrated by the ruling of the criminal court or otherwise by the documents relating to the criminal procedure that has not ended with a finding that the charges have been proven ( bewezenverklaring ) that the suspect is innocent and that the suspicion on which the action of the police or justice authorities was based was unfounded ' ( ORG , DATE , ... PERSON [ ORG case - law database number , ' PERSON ' ] AVCARDINAL ) .

Where these documents do not demonstrate that the person concerned was innocent , then it must be assumed DATE according to consistent case - law – that the suspicion of the person concerned complied with the standard laid down in DATE [ of LAW ] , that criminal law measures [ taken and ] based on that suspicion were not unlawful and that DATE for obtaining compensation of damage – the suspect is to turn to the possibilities under LAW , CARDINAL and FAC of LAW ( see , inter alia , ORG DATE , ... PERSON ) . This applies also for those cases in which the accused has been acquitted , because an acquittal does not always mean that an accused was innocent . In some cases it is no longer possible to find out during the criminal proceedings what exactly did happen . For instance because witnesses give conflicting evidence on essential points and the accused 's denial is supported by other statements . Then it is possible to acquit an accused for lack of evidence while at the same time it remains unclear whether the accused has committed the fact [ constituting the offence ] .... ”