Violation of Art. 2;No violation of Art. 2

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

The applicants were born in DATE and DATE respectively and live in GPE . The first applicant is the mother of PERSON , who was born in DATE . The second applicant is the mother of PERSON , who was born in DATE .

NORP In DATE ORG was under the full control of the NORP military forces . The military troops were stationed in the town and its vicinity , in the settlement of PERSON ( also spelled as PERSON ) . The applicants ' families lived in the same neighbourhood on the outskirts of ORG . Their sons , PERSON and PERSON , attended the same school .

In TIME of CARDINAL DATE PERSON and PERSON were walking home from school down FAC , which was situated between the local cemetery and a field . At TIME they were seen walking by PERSON brother , PERSON . He was next to his house when at TIME he saw an explosion in the vicinity .

The applicants ' neighbour PERSON was at home and heard the sound of a flying projectile coming from the PERSON settlement . Then she heard an explosion , saw clouds of black smoke coming from the road next to the cemetery and rushed to the place . A number of the applicants ' relatives and neighbours also rushed to the place , where they found fragments of the bodies of PERSON and PERSON .

TIME a group of military servicemen arrived at the scene . CARDINAL of them said that it must have been an explosion of a landmine . But a number of local residents told the officers that they had heard the sound of a flying projectile , and that therefore the explosion could not have been caused by a landmine . The head of the Urus - Martan town administration also arrived at the scene . In TIME of CARDINAL DATE the local TV station reported the events in a news programme .

On DATE the applicants buried their sons . Many residents of ORG attended the funeral . CARDINAL of them , PERSON , told the second applicant that on DATE she had been working at the wheat processing plant located next to the road from ORG to PERSON . NORP military troops were stationed nearby . At TIME she heard a projectile being launched from a tank .

According to another local resident , PERSON , on DATE she was walking from PERSON to Urus - Martan . QUANTITY from PERSON she saw a group of servicemen on a tank . They told her that the roads to ORG were blocked and nobody was allowed to go into the town . QUANTITY from the place she met a fellow villager . He told her that drunken soldiers were down the road and that she should return to PERSON . At TIME , when PERSON was at home , she heard a projectile being launched from a tank and the sound of an explosion on the outskirts of ORG .

CARDINAL residents of PERSON , PERSON , PERSON and PERSON . T. , informed the applicants that at TIME on DATE they had heard a projectile being launched from the area where the NORP military troops had been stationed and they had heard it explode on the outskirts of ORG .

On DATE the Urus - Martan district hospital issued CARDINAL statements certifying the deaths of PERSON and PERSON on DATE from numerous missile wounds .

The Government did not challenge the facts as presented by the applicants . At the same time they pointed out that , according to the information provided by the domestic investigation , on DATE the military unit Don-CARDINAL stationed in ORG had been subjected to shelling by an illegal armed group under the command of Mr DATE . and that on that date the military unit had not used large - calibre weapons . They also stated that the deaths of the applicants ' sons could have been caused by the shelling opened by the illegal armed group .

On DATE the Urus - Martan district prosecutor 's office ( the district prosecutor 's office ) initiated an investigation into the deaths of PERSON and PERSON . The case file was given the number DATE . In the submitted documents it was also referred to under no . DATE .

On DATE the investigators examined the crime scene . Nothing was collected from the scene . The investigators briefly examined the boys ' remains on the spot . No forensic analysis of the remains was carried out by the investigation . Shortly after the events the applicants collected fragments of the explosive device which had caused the deaths of their sons and submitted them to the investigators .

On DATE the applicants ' relatives wrote to the FAC district military commander 's office ( the district military commander 's office ) requesting the authorities to conduct an effective investigation into the deaths of PERSON and PERSON . No reply was given to this request .

On DATE the head of the Urus - Martan district department of the interior ( the ROVD ) provided the investigators with a statement to the effect that PERSON and PERSON had died as a result of the explosion of a projectile of the ORG type ; that on CARDINAL October CARDINAL the military units Don-CARDINAL and regiment no . CARDINAL stationed in the vicinity of ORG did not use such large - calibre projectiles , and that on DATE the military units had been subjected to shelling by an illegal armed group under the command of PERSON .

On DATE ( in the submitted documents the date was also referred to as DATE ) the district prosecutor 's office granted the applicants victim status in the criminal case .

From DATE to CARDINAL DATE the applicants did not receive any information from the investigative authorities about the developments in the criminal proceedings .

On DATE and DATE the applicants wrote to the district prosecutor 's office requesting information about the progress in the criminal investigation and asking for access to the investigation file . On DATE the investigators refused to grant access to the file and informed the applicants that the investigation had been resumed .

On DATE the applicants requested the district prosecutor 's office to inform them about the date of the reopening of the criminal investigation . No reply was given to this request .

On DATE the district prosecutor 's office suspended the investigation in criminal case no . CARDINAL .

On DATE the applicants requested the investigators to inform them about the progress in the criminal case . No response was given to this request .

On DATE the supervising prosecutor overruled the decision to suspend the investigation as premature , and ordered the investigators to resume the proceedings and take a number of investigative steps . The applicants were not informed about this decision .

DATE the applicants complained about the ineffectiveness of the investigation to domestic courts ( see paragraphs CARDINAL below ) .

On DATE the applicants were informed orally by an investigator , PERSON , that on an unspecified date the fragments of the projectile collected by the applicants from the crime scene had been sent for an expert examination .

On DATE and DATE the GPE prosecutor 's office informed the applicants that their office was investigating the deaths of their sons and that on DATE the investigation had been suspended .

According to the applicants , throughout the investigation the authorities consistently failed to inform them about its progress and deprived them of access to the investigation file .

On DATE the district prosecutor 's office opened criminal case no . CARDINAL under LAW § CARDINAL of LAW ( murder ) in connection with the discovery on the eastern outskirts of GPE of the bodies of minors PERSON and PERSON .

On DATE the investigators examined the crime scene and the fragments of the bodies on the spot . Nothing was collected from the scene .

On DATE the investigators questioned PERSON , who stated that she had been in her courtyard when she had heard the sound of a flying projectile coming from the outskirts of the town and then the sound of an explosion . The witness and her sister had rushed out into the street and next to the district hospital they had seen a hole in the ground and the remains of CARDINAL bodies . The witness asserted that the explosion had been caused by the projectile which had arrived from the direction of the collective farm , and not by a mine , as she had clearly heard the distinctive sound of a projectile .

On unspecified dates the investigators questioned witnesses Mr Kh . Kh . and PERSON . O. , whose statements concerning the events were similar to that given by PERSON

DATE and DATE the law - enforcement agencies conducted checks in respect of CARDINAL residents of ORG to find out whether they had been involved in the deaths of the applicants ' sons .

On DATE the head of the NORP ROVD provided the investigators with a statement to the effect that the applicants ' sons had died as a result of the explosion of a projectile of the ORG type .

On DATE the investigators granted both applicants victim status in the criminal case and questioned the second applicant , who stated that she had found out about the events from her neighbours and that she had been prevented by them from approaching the scene of the incident . From the eyewitnesses she had learnt that her son and PERSON had been killed by a projectile which had arrived from the eastern part of ORG .

On an unspecified date the investigators questioned the first applicant 's husband , PERSON , who stated that on DATE he had been in ORG when he had been informed that his son PERSON had been killed by a projectile . He had rushed to the place of the incident and found the remains of his son and those of PERSON . According to the witness , it was clear that the boys had died from a projectile which had arrived from the eastern part of ORG .

On an unspecified date the investigators questioned PERSON who stated that on DATE he had heard a powerful explosion and rushed into the street . Next to the cemetery he had seen clouds of thick black smoke and had run to the place , where he had found a hole in the ground measuring QUANTITY , school textbooks and the bodies of the QUANTITY boys . He found out the boys ' names from their school books .

On an unspecified date the investigators questioned PERSON , who stated that on DATE she had been on the eastern outskirts of ORG . At TIME she had heard a projectile flying from the direction of the PERSON settlement and then an explosion . She had rushed to the place , where she had found the hole in the ground and the remains of CARDINAL boys next to it . The witness stated that an acquaintance of hers , Ms PERSON , had seen military tanks stationed in PERSON turning towards ORG and CARDINAL of them firing a projectile in the town 's direction . The witness further stated that at the scene she had not seen any wires or devices which could have indicated a landmine .

On an unspecified date the investigators questioned PERSON , who stated that on DATE she had been at home . At TIME she had heard a flying projectile and then an explosion . She had run out into the street and seen PERSON running to the place of the explosion . When the witness had arrived at the scene , she had found a hole in the ground of QUANTITY in diameter and the remains of CARDINAL boys . From the shape of the hole it had been clear that the projectile had arrived from the direction of the PERSON settlement .

On an unspecified date the investigators questioned the applicants ' neighbour , PERSON U. , who stated that on DATE he had been at home . At TIME he had heard an explosion and seen clouds of smoke and the neighbours running to the scene . There they had found the remains of the applicants ' sons . After that military servicemen had arrived at the scene . The witness had heard some people saying that the explosion had been caused by a projectile ; others had thought that it must have been a landmine . He also stated that at the material time landmines quite often exploded on that street .

On an unspecified date the investigators questioned PERSON , whose statement concerning the events of DATE was similar to the CARDINAL given by PERSON U.

On an unspecified date the investigators obtained information to the effect that on DATE the military unit Don-CARDINAL stationed in ORG had been shelled by an illegal armed group under the command of Mr DATE . , and that on that date the military unit had not used large - calibre weapons .

Despite specific requests by ORG did not disclose any documents from criminal case no . CARDINAL , stating that an investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW , since the file contained information concerning participants in criminal proceedings .

On DATE the applicants complained to the ORG town court that there was no effective investigation in the criminal case . On DATE the court allowed their complaint in part . It instructed the prosecutor 's office to resume the investigation and take a number of investigative steps . The court rejected the applicants ' complaint in the part concerning their request for access to the investigation file . On CARDINAL DATE ORG upheld this decision on appeal .

On DATE the applicants again complained to the ORG town court that the investigation in the criminal case was ineffective and requested that the suspended proceedings be resumed . On DATE the court rejected their complaint as groundless , stating that the prosecutor 's office had resumed the criminal proceedings ( see paragraph CARDINAL above ) .

For a summary of the relevant domestic law see ORG and Others v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE ) .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

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

On DATE the applicant was held in custody . It does not result from the case - file whether the applicant remains detained in this set of proceedings .

On DATE the applicant was arrested on suspicion of murder , attempted robbery and drug trafficking committed in an organised criminal group .

On DATE ORG ( Sąd Rejonowy ) remanded him in custody , relying on a reasonable suspicion that he had committed the offences in question . The court indicated that the evidence which had been gathered in the case , in particular the testimonies of witnesses and other suspects , showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged . It attached importance to the risk that he would attempt to induce witnesses to give false testimony or , by other means , would obstruct the proceedings . The latter risk was considered of the utmost importance in the light of the fact that the case involved a large number of alleged accomplices .

An appeal by the applicant against the detention order , likewise his further appeals against decisions extending his detention and all of his subsequent , numerous applications for release and appeals against refusals to release him , were unsuccessful .

In the course of the investigation , the applicant ’s pre - trial detention was extended on several occasions , namely , on DATE ( to CARDINAL October CARDINAL ) , CARDINAL DATE ( to CARDINAL DATE ) , CARDINAL DATE ( to DATE ) , DATE ( to CARDINAL DATE ) , CARDINAL DATE ( to CARDINAL DATE ) , CARDINAL DATE ( to CARDINAL DATE ) and CARDINAL DATE ( to CARDINAL DATE ) . In their decisions , the courts stressed the fact that the applicant had been acting in an organised criminal group . They underlined the unique nature of the proceedings involving organised crime , in which the authorities had to determine the degree of alleged responsibility of each of the suspects . The courts attached importance to the seriousness of the charges and the likelihood of a severe sentence being imposed on the applicant .

On DATE ORG refused to extend the applicant ’s detention . It stated that the applicant had been held in pretrial detention since DATE and that this period should have been sufficient for the authorities to collect evidence in the applicant ’s case . In addition , it considered that the decision about the extension of the applicant ’s pre - trial detention beyond DATE should be taken by ORG ( PERSON ) .

The Prosecutor lodged an interlocutory appeal against this decision .

On DATE ORG amended the contested decision and extended the applicant ’s pre - trial detention to CARDINAL DATE . The court argued that as the applicant was remanded in custody in the first set of criminal proceedings , his detention in the second set of proceedings was merely administrative . It further stated that the applicant was charged with serious offences committed in an organised criminal group and that there was a high risk that , if released , he would attempt to induce witnesses to give false testimony or , by other means , would obstruct the proceedings . Finally , the court observed that the Prosecutor could not have completed the investigation as evidence in proceedings involving organised crime often emerged gradually .

On an unspecified date the Prosecutor requested ORG to extend the applicant ’s detention to DATE .

On DATE ORG extended the applicant ’s detention to DATE . The court observed that the applicant ’s pre - trial detention had been extended for over DATE almost automatically and it did not seem that the investigation was reaching its final stage . It concluded that the extension of the applicant ’s detention for a shorter period than was requested by the ORG should prompt the authorities to accelerate the acts of investigation regarding the applicant .

The applicant lodged an interlocutory appeal against this decision claiming that he had been detained for DATE and that this period should have been sufficient for completing the investigation .

On DATE ORG quashed the contested decision . It stated that the decision about the extension of the applicant ’s pre - trial detention beyond the period of one year should be taken by ORG ( Sąd Apelacyjny ) .

On DATE ORG extended the applicant ’s detention until DATE . The court underlined the complexity of the case and the severity of the penalty to which the applicant was liable . Having regard to the organised character of the alleged criminal activities , it also held that the applicant ’s detention was necessary in order to prevent the applicant from interfering with the proceedings .

The Prosecutor lodged an interlocutory appeal against this decision claiming that DATE would not be sufficient for collecting evidence in the applicant ’s case .

On DATE ORG modified the contested decision and extended the applicant ’s detention until DATE . The court observed that the applicant’

On DATE a bill of indictment was lodged with ORG . The applicant was charged with murder , attempted robbery and drug trafficking committed in an organised criminal group .

On DATE ORG extended the applicant ’s pre - trial detention to DATE .

NORP In DATE the case was referred to the PERSON ORG .

On several occasions the PERSON ORG applied to ORG , asking for the applicant ’s detention to be extended . ORG allowed all those requests extending the applicant ’s pre - trial detention on DATE ( to DATE ) , CARDINAL DATE ( to CARDINAL DATE ) , DATE ( to CARDINAL DATE ) , CARDINAL DATE ( to CARDINAL October CARDINAL ) , CARDINAL DATE ( to DATE ) , CARDINAL DATE ( to CARDINAL DATE ) and CARDINAL DATE ( to CARDINAL DATE ) .

The criminal proceedings against the applicant are still pending . The applicant remains detained .

The applicant submitted that during the entire period of his detention he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene .

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


Violation of Art. 6-1 with regard to access to a court;Not necessary to examine Art. 6-1 with regard to the length of the proceedings;Not necessary to examine Art. 13;No violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the town of PERSON in the PERSON - on - Don Region .

In DATE the applicant deposited his savings with “ ORG ” , a NORP investment company . In DATE , when the applicant came to GPE to recover his deposit , he found the company ’s offices closed .

On DATE the applicant lodged a civil action against the company in ORG of GPE . The court disallowed the applicant ’s action for lack of territorial jurisdiction .

On DATE the applicant brought an action against the company before ORG of GPE . Citing lack of territorial jurisdiction , on CARDINAL DATE ORG transferred the case to GPE . The Government submitted that there was no indication in the case - file of the receipt of the claim by ORG . The applicant challenged this statement , referring to the “ forwarding note ” of CARDINAL DATE , from ORG to ORG , which had been copied to him .

On DATE the applicant sent a letter to ORG with a request to explain the delay in examination of his case . No answer was given .

NORP In DATE the applicant lodged yet another action against the company with ORG . It was not accepted for lack of hierarchical jurisdiction .

On DATE the applicant brought an action against the company before ORG of GPE . On DATE ORG forwarded the applicant ’s statement of claim to ORG , which , in turn , sent the claim on DATE to ORG of GPE .

On DATE the Convention entered into force in respect of GPE .

The parties offered different versions of further proceedings .

On DATE the applicant received a summons to appear before the ORG of GPE on DATE at TIME The summons was delivered by regular mail and put in his letter box .

On DATE the applicant found in his letter box a summons to appear before the ORG of GPE on DATE .

On DATE , on coming home from the office , the applicant found in his letter box a summons to appear before the ORG of GPE on DATE at TIME

The applicant submitted to the ORG copies of the above summonses certified by a notary public .

The applicant did not receive any further summonses or communications from ORG .

On DATE the applicant sent a letter to ORG , requesting it to account for the delay in the proceedings . On DATE the applicant ’s letter was returned to him with a handwritten request to specify the date when the action had been lodged . The applicant wrote the date on the same letter and sent it back on DATE . No answer was received .

The Government denied the applicant ’s submission that the hearings had been listed for DATE and CARDINAL [ sic ] DATE as not supported with the case - file materials .

According to them , the first hearing on the applicant ’s claim was fixed for DATE . As the parties failed to appear , the hearing was adjourned until DATE . The applicant was advised of the new date and he received the summons on DATE .

On DATE the hearing was adjourned until DATE , as both parties were absent . The applicant received the notice about the adjournment on DATE .

On DATE the ORG of Moscow left the applicant ’s claim “ without examination ” , finding as follows :

“ The parties failed to appear twice , on DATE and DATE ; they were notified of the hearing date ; the plaintiff does not ask for a default judgment , he did not produce the original documents and receipts , the copies submitted are not properly certified ; the court does not consider it possible to examine the case on the basis of the materials in the file . ”

The decision indicated that an appeal lay to the city court against it within DATE .

At the ORG ’s request , the Government enclosed a copy of the decision of DATE with their additional observations of DATE .

NORP In support of their statements the Government produced the front and back pages of the case - file .

The front page contains the name of the court , the names of the parties and the following handwritten notes :

“ Received : DATE . Examined : DATE at TIME CARDINAL DATE at TIME DATE at TIME filed on DATE . ”

The back page contains the following handwritten notes :

“ Summons for DATE Summons for DATE [ Copy of the decision sent ] to the plaintiff on DATE CARDINAL DATE . ”

Article CARDINAL of ORG of DATE ( in force at the material time ) provided that civil cases were to be prepared for a hearing DATE after the action had been lodged with the court . In exceptional cases , this period could be extended for DATE . Civil cases were to be examined DATE after the preparation for the hearing had been completed .

Article CARDINAL provided that summonses were to be served on the parties and their representatives in such way so that they would have enough time to appear timely at the hearing and prepare their case . If necessary , the parties could be summoned by a phone call or a telegram .

Article CARDINAL § CARDINAL provided that the court could make an interim decision to leave the claim “ without examination ” ( определение об оставлении заявления без рассмотрения ) , in particular , if the parties had not waived their right to be present and had failed to appear for the second time and the court did not consider it possible to determine the claim on the basis of the case - file . Article CARDINAL required the judge to include in the decision specific instructions on how to eliminate the obstacles to the examination of the claim . Upon removal of the circumstances on which the decision to leave the claim without examination was founded , an interested party could request the court to resume the proceedings . The court could reverse its decision to leave the claim without examination if the parties proved that they had had valid reasons for the absence .

Article CARDINAL required a copy of an interim decision to leave the claim without examination to be sent to the absent party DATE after it had been made .


The first applicant , Mr PERSON , is an NORP national who was born in DATE . The second applicant , PERSON , is a NORP national who was born in DATE . The couple live in GPE . They are represented before the ORG by PERSON , a lawyer practising in GPE .

The first applicant wanted to marry the second applicant in GPE . On DATE he contacted ORG in GPE and ORG , in order to acquire information about the procedure to obtain a visa for marriage purposes .

The latter institutions replied by sending information related to the application for a tourist visa .

On DATE all relevant documents satisfying the requirements of the tourist visa were sent to the ORG . According to the applicants , it was apparent from the information they were given that no visa for marriage purposes could be requested .

On DATE ORG in GPE informed the applicants that their request would be rejected . The applicants were told that no visas had been issued in favour of NORP nationals for DATE .

On DATE , after all the documents necessary for the marriage had been supplied and verified , the municipality of GPE issued the couples’ marriage bans . The applicants’ lawyer made a request to the competent NORP authorities for the second applicant ’s visa for marriage purposes . He did not receive any replies .

As the second applicant was pregnant , the first applicant went to GPE in order to celebrate the marriage over there .

On DATE the applicants got married in GPE .

On DATE the NORP authorities granted the second applicant a visa in her quality of an NORP national ’s family member . The couple moved to GPE and started to reside there .

On DATE the applicants presented to the Police station in GPE a request for a residence permit for the second applicant ’s family members .

On DATE the applicants addressed a registered letter to the NORP Minister of ORG . They asked in what way it would be possible to obtain a visa for family members , in order to reunite in GPE the second applicant ’s relatives . They were told that it would have been possible to allow the entry in GPE of the mother of the second applicant but not of her brothers .

On DATE the applicants requested ORG to issue a written declaration stating that the matrimonial home was the residence of the second applicant . However , ORG could not accede to this request as the second applicant did not possess a residence permit .

On DATE the applicants requested that the second applicant be granted NORP citizenship . Their request was rejected as according to NORP law , citizenship could be granted either after a marriage and DATE of residence or after DATE of marriage . Moreover , the processing of the citizenship request would have required CARDINAL .

According to the information provided by the applicants on DATE , on that date the second applicant had not obtained a residence permit in GPE .


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney

The first applicant is ORG , ORG ( “ the POA ” ) , a listed and certified trade union in GPE . The other applicants are NORP nationals : PERSON , born in DATE , and Mr PERSON , born in DATE . They are both resident in GPE and are employed as prison officers , PERSON in a ORG - run prison and Mr LOC in a prison that was transferred to private - sector management in DATE . They are members of the ORG . PERSON indicated she is the chair of the union branch in her establishment , and Mr PERSON indicated that he is secretary to the union branch in his place of employment .

The applicants were represented by PERSON of ORG , a law firm in GPE , and advised by Mr PERSON and Professor PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON of ORG .

A joint submission was received from ORG ( ORG ) and ORG ( ORG ) , which had both been given leave by the President to intervene CARDINAL parties in the written procedure ( LAW CARDINAL § CARDINAL ) .

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

In DATE it was established that prison officers were forbidden by law to take industrial action . The issue arose in the context of injunction proceedings taken against the ORG to prevent it organising industrial action ( ORG v. PERSON , DATE , unreported ) . ORG ( DATE J ) ruled that since prison officers were vested with the “ powers or privileges of a constable ” ( Prisons Act , DATE , section CARDINAL) , they were for this reason expressly excluded from the terms “ employees ” and “ workers ” within the meaning of the statutory provisions governing lawful industrial action ( ORG , DATE , sections CARDINAL and CARDINAL ) . DATE , legislation was introduced to restore to prison officers the status of workers for the purpose of employment law , while maintaining the ban on industrial action ( ORG and LAW , DATE , sections CARDINAL and CARDINAL ) . The parties expressed contrasting views on these developments . For the applicants , the PERSON ruling was “ an unintended legal anomaly ” , and section CARDINAL of the DATE LAW a sudden change of long - standing policy by fixing in legislation what was a surprising and unheralded court decision ” . The ORG rejected that view , stating that it was the intention of ORG to give a clear statutory basis to the ban on industrial action by prison officers , rendered necessary by the willingness of the ORG to take such action .

Industrial relations in the prison service are conducted in various formats and in accordance with a variety of procedures . As in other parts of the public sector in GPE , there are in the prison service what are known as " ORG " , at both local and national level . These are joint bodies , made up of representatives of management and staff , whose purpose is to facilitate co - operation . Acting principally as forums for consultation and dialogue , they do not encompass binding dispute settlement mechanisms . For this reason , the applicants considered that the dialogue that takes place within ORG is not true collective bargaining . They held the same view in relation to the establishment - level disputes procedure ( ORG . CARDINAL ) , which details the procedure to be followed in such situations but does not lead to a resolution binding on management .

There have been successive industrial relations - agreements within the prison sector . In DATE , the ORG and the prison service entered into LAW ( “ ORG ” ) . The ORG , which did not apply to the issue of remuneration , included a legally binding prohibition on strike action . The applicants described the ORG as “ asymmetric ” in this regard , as there was no equivalent binding obligation on the part of the ORG . There were disagreements between the CARDINAL sides over the precise scope of application of the ORG . On DATE the ORG served notice of their intention to withdraw from the ORG , which terminated DATE .

A new agreement , ORG ( “ FAC ” ) , was reached in DATE . It too contained an undertaking by the ORG not to take industrial action . The ORG , which did not apply to remuneration , took effect in DATE . At the same time , the statutory prohibition on industrial action was disapplied . Formal assurances were given to ORG that it would be reactivated in the event of the ORG being terminated . According to the applicants , there was again repeated disagreement between the CARDINAL sides as to the scope of the ORG , leading the ORG to give notice of termination in DATE , effective DATE . The ORG stated that on the whole the ORG operated successfully , as shown by the number of new policies introduced within the prison service and the number of changed policies , which were adopted without dispute . They added that , notwithstanding the undertaking given , the ORG threatened industrial action in DATE , DATE and DATE . A special delegates’ conference of the ORG voted in DATE not to accept any further agreement that included a no - strike undertaking . With the termination of the FAC on DATE , the statutory prohibition on industrial action was brought back into force . A new provision was added to the DATE Act empowering the Secretary of ORG to suspend and revive the prohibition ( section CARDINALA ) .

A new agreement within the prison service took effect in DATE , ORG for Changes for Specified Terms and Conditions ( “ the ORG ” ) and is currently in force . It provides for binding arbitration , but , like previous agreements , does not apply to pay . The situation in GPE is different . There the Voluntary Industrial Relations Agreement for the NORP prison service provides that , in the absence of agreement , pay disputes are to be resolved by binding independent arbitration .

The issue of remuneration of prison officers employed in ORG - run prisons in GPE , GPE and GPE comes within the remit of ORG ( “ PSPRB ” ) , created in DATE . For private - sector prison establishments , remuneration and other employment matters are agreed contractually .

Composed of independent members , the function of the ORG is to make recommendations DATE on prison - officer pay to the Secretary of ORG for ORG . At the outset of each exercise , the Secretary of ORG may give directions , in the form of a “ remit letter ” , to the ORG setting out the considerations to which they are to have regard ( Regulation CARDINAL , ORG ( Pay Review Body ) Regulations DATE ) . This power has been used repeatedly . In addition , the Chair of the PSPRB meets with the Chancellor of the ORG or the Chief Secretary of the ORG prior to the start of each review exercise to discuss the general economic context . Trade union involvement in the process takes the form of submitting evidence and making representations to the PSPRB ( Regulation CARDINAL ) . The ORG ’s recommendations are not binding on the Secretary of ORG , who may accept them , or “ make such other determination ... as he thinks fit ” ( Regulation CARDINAL , Prison Service ( ORG ) .

On DATE the ORG brought a complaint before ORG alleging that the statutory prohibition of industrial action by prison officers constituted a breach of the right to strike under ORG No . DATE . The ORG ’s conclusions on the case are set out below ( at paragraphs CARDINAL and following ) .

The applicants stated that industrial action , including strike action , occurred from time to time in the prison service before DATE . They provided examples of strikes at local level and , at national level , of other forms of industrial action in DATE . On DATE the ORG organised , for the first time , a national strike by prison officers , in protest against the ORG ’s decision to stage DATE pay rise . According to the Government , notice of the strike was given by telephone TIME before the strike commenced at TIME lawyers obtained an injunction against the ORG by TIME that day . Prison officers returned to work that TIME , TIME after the strike began . The strike disrupted the normal operation of the prison service , and in CARDINAL institute for young offenders the absence of prison officers led to serious disorder that lasted for DATE and caused extensive material damage . The applicants countered that DATE had passed without incident in CARDINAL other prison establishments affected by the strike . As for the establishment referred to by the Government , an official report into the incident had noted that the rationale for the violence was complex , the strike by prison officers being just CARDINAL contributing factor , amplified by negative reporting on television . The report had considered that the indiscipline was spontaneous , and so could not have been foreseen or avoided .

The Government maintained that the ORG was intent on withholding its ORG services as part of a general public service strike on CARDINAL DATE , and that it had sought to rely on health and safety concerns which the Government described as spurious . The situation was ultimately resolved DATE before under threat of legal action . The applicants rejected the ORG ’s account , asserting the validity of their concerns at the time , given that other categories of prison staff would be on strike , as well as fire services and ambulance crew . On DATE of the strike , ORG members had merely held lunchtime meetings , with management permission , so as to demonstrate their support for the aims of the strike . Another public - sector strike took place on DATE . According to the Government , the ORG indicated beforehand that its members would just attend lunchtime meetings . Despite this , ORG members stayed away from work for TIME in over CARDINAL establishments , necessitating the intervention of prison service lawyers . The applicants denied that the actions of ORG members on DATE amounted to industrial action . They noted that while here had been correspondence from prison - service lawyers , no proceedings had been issued and that the ORG leadership had ordered its members to resume work at lunchtime . The action taken DATE had not led to any danger to persons or property .

The Prisons Act DATE provides at section CARDINAL :

“ Every prison officer while acting as such shall have all the powers , authority , protection and privileges of a constable . ”

The relevant provisions of ORG DATE read as follows :

“ ORG from certain tort liabilities .

( CARDINAL ) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only—

( a ) that it induces another person to break a contract or interferes or induces another person to interfere with its performance , or

( b ) that it consists in his threatening that a contract ( whether one to which he is a party or not ) will be broken or its performance interfered with , or that he will induce another person to break a contract or interfere with its performance .

( CARDINAL ) An agreement or combination by CARDINAL or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination would not be actionable in tort .

CARDINAL.— Meaning of ‘ trade ORG in Part V.

( CARDINAL ) In this Part a ‘ trade ORG means a dispute between workers and their employer which relates wholly or mainly to CARDINAL or more of the following—

CARDINAL Police service .

( CARDINAL ) In this Act ‘ employee’ or ‘ ORG does not include a person in police service ; and the provisions of sections CARDINAL and CARDINAL ( rights in relation to trade union membership : access to employment ) do not apply in relation to police service .

( CARDINAL ) ‘ Police service’ means service as a member of any constabulary maintained by virtue of an enactment , or in any other capacity by virtue of which a person has the powers or privileges of a constable . ”

The Criminal Justice and LAW DATE provides as relevant :

“ CARDINAL.— Inducements to withhold services or to indiscipline .

( CARDINAL ) A person contravenes this subsection if he induces a prison officer—

( a ) to take ( or continue to take ) any industrial action ;

( b ) to commit a breach of discipline .

( CARDINALA ) In subsection ( CARDINAL ) ‘ industrial action’ means—

( a ) the withholding of services as a prison officer ; or

( b ) any action that would be likely to put at risk the safety of any person ( whether a prisoner , a person working at or visiting a prison , a person working with prisoners or a member of the public ) .

( CARDINAL ) The obligation not to contravene subsection ( CARDINAL ) above shall be a duty owed to the Secretary of ORG or , in GPE , to ORG or , in GPE , to ORG .

( CARDINAL ) Without prejudice to the right of the Secretary of ORG or , in GPE , to ORG or , in GPE , of ORG , by virtue of the preceding provisions of this section , to bring civil proceedings in respect of any apprehended contravention of subsection ( CARDINAL ) above , any breach of the duty mentioned in subsection ( CARDINAL ) above which causes the Secretary of ORG or , in GPE , to ORG or , in GPE , ORG to sustain loss or damage shall be actionable , at his suit or instance , against the person in breach .

( CARDINAL ) In this section ‘ prison ORG means any individual who—

( a ) holds any post , otherwise than as a chaplain or assistant chaplain or as a medical officer , to which he has been appointed ... under section CARDINAL(CARDINAL ) of FAC ( GPE ) DATE ( appointment of prison staff ) , or

( aa ) holds any post , other than as a chaplain or assistant chaplain , to which he has been appointed for the purposes of section CARDINAL of the Prison Act DATE ( appointment of prison staff ) ,

( c ) is a custody officer within the meaning of Part I of this LAW or a prisoner custody officer , within the meaning of Part IV of LAW DATE or LAW or III of this Part .

( CARDINAL ) The reference in subsection ( CARDINAL ) above to a breach of discipline by a prison officer is a reference to a failure by a prison officer to perform any duty imposed on him by the prison rules or any code of discipline having effect under those rules or any other contravention by a prison officer of those rules or any such code .

( CARDINAL ) In subsection ( CARDINAL ) above ‘ the prison rules’ means any rules for the time being in force under LAW DATE or CARDINAL of FAC ( GPE ) DATE ( prison rules ) .

ORG ( ORG , which entered into force on DATE , provide as relevant :

“ Establishment of ORG

The Prime Minister shall appoint a ORG to examine and report on such matters relating to the rates of pay and allowances to be applied to the prison service in GPE and GPE , and GPE , as may from time to time be referred to them by the Secretary of ORG .

Directions

With respect to matters referred to ORG by him , the Secretary of ORG may give directions to ORG as to the considerations to which they are to have regard and as to the time within which they are to report ; and any such directions may be varied or revoked by further directions under these Regulations .

Notice

Where a matter has been referred to ORG , they shall give notice of the matter and of any relevant direction to such organisations appearing to them to be representative of persons working in the prison service in GPE and GPE , and GPE , and shall afford every such organisation a reasonable opportunity of submitting evidence and representations on the issues arising ,

Report

Where a matter has been referred to ORG , their report shall contain their recommendations on that matter and such other advice relating to that matter as they think fit .

Determination of rates of pay and allowances

Where , following the reference of any matter to them ORG have made a report , the Secretary of ORG may determine the rates of pay and allowances to be applied to the prison service in GPE and GPE , and GPE , in accordance with the recommendations of ORG , or make such other determination with respect to the matters in that report as he thinks fit . ”

As noted above ( see paragraph CARDINAL ) , the ORG made a complaint before ORG in DATE , examined as case no . CARDINAL . While there is no provision in the LAW adopted by ORG expressly recognising a right to strike , both ORG and ORG on ORG have progressively developed a number of principles relating to the right to strike , based on Articles CARDINAL and CARDINAL of ORG of the Right to Organise Convention , DATE ( No . DATE ) ( see “ Giving globalisation a human face ” , ORG , DATE , at paragraph CARDINAL ) . This Convention was ratified by GPE on DATE . The ORG alleged that section CARDINAL of the DATE Act constituted a breach of the right to strike , as prison officers did not exercise authority in the name of the ORG and did not provide essential services in the strict sense of the term . It further complained that no adequate compensatory measures had been put in place whereby prison officers or their union could protect their interests in the absence of a right to strike .

NORP In its first consideration of the case ( ORG , DATE ) , ORG held :

“ CARDINAL . The ORG has considered that officials working in the administration of justice are officials who exercise authority in the name of the ORG and whose right to strike could thus be subject to restrictions or even prohibitions [ see ORG , op . cit . , para . CARDINAL ] . The ORG considers that to the extent that prison officers and prisoner custody officers exercise authority in the name of the ORG , their right to strike can be restricted or even prohibited .

ORG recalls that to determine situations in which a strike could be prohibited , the criteria which have to be established are the existence of a clear and imminent threat to the life , personal safety or health of the whole or part of the population [ see Digest , op . cit . , para . CARDINAL ] . The ORG considers that the prison service is clearly one where the interruption of the service could give rise to an imminent threat to the life , personal safety or health of the whole or part of the population , in particular , the prisoners and the wider public .

Considering that the prison service constitutes an essential service in the strict sense of the term and that prison officers , as well as prisoner custody officers to the extent that they perform the same functions , exercise authority in the name of the ORG , the ORG is of the view that it is in conformity with freedom of association principles to restrict or prohibit the right to take industrial action in the prison service . ”

ORG then raised the issue of compensatory guarantees :

“ CARDINAL . ... ORG recalls that where the right to strike is restricted or prohibited in certain essential undertakings or services , adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services [ see Digest , op . cit . , para . CARDINAL ] . ORG requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike , and to keep it informed in this respect .

... [ T]he ORG notes that the Government does not specify the method ( including any relevant guidance or criteria ) for the appointment of the members of ORG , and recalls that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but if the confidence of both sides , on which the successful outcome even of compulsory arbitration really depends , is to be gained and maintained , they should also appear to be impartial both to the employers and to the workers concerned [ see Digest , op . cit . , para . CARDINAL ] . With regard to [ the nature of ORG recommendations ] , the ORG notes that the Government does not specify which exceptional circumstances might justify a departure from the recommendations of ORG . ORG also observes that the text of LAW of ORG ( ORG , DATE , seems to leave complete discretion upon the Secretary of ORG as regards the implementation of the recommendations of ORG , by providing that ‘ where , following the reference of any matter to them , ORG has made a report , the Secretary of ORG may determine the rates of pay and allowances to be applied to the prison service in GPE and GPE , and GPE , in accordance with the recommendations of ORG , or make such other determination with respect to the matters in that report as he thinks fit’ . ORG recalls that as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service , restrictions on the right to strike should be accompanied by adequate , impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards , once made , are fully and promptly implemented [ see Digest , op . cit . , para . CARDINAL ] . ORG requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison ORG pay in GPE , GPE and GPE . In particular , the ORG requests the ORG to continue to ensure that : ( i ) the awards of ORG are binding on the parties and may be departed from only in exceptional circumstances ; and ( ii ) the members of ORG are independent and impartial , are appointed on the basis of specific guidance or criteria and have the confidence of all parties concerned . ORG requests to be kept informed in this respect . ”

ORG submitted the following recommendations to ORG :

“ CARDINAL . In light of the foregoing conclusions , the ORG invites ORG to approve the following recommendations :

( a ) Noting that the prison service is an essential service in the strict sense of the term where the right to strike can be restricted or even prohibited , the ORG requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike .

( b ) ORG requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison ORG pay in GPE , GPE and GPE . In particular , the ORG requests the ORG to continue to ensure that :

( c ) The ORG requests to be kept informed of developments in respect of the above . ”

ORG approved them ( Minutes of the CARDINALnd Session , DATE , paragraph CARDINAL ) .

Since its initial assessment of the case , ORG has reviewed the situation periodically . In its Report No . CARDINAL of DATE , it regretted the state of relations between the ORG and the ORG , and that little progress had been made in improving the mechanism for the determination of prison ORG pay . Regarding the binding nature of ORG awards , that report states :

“ CARDINAL . ... [ T]he ORG notes the ORG ’s statement that matters of public finances are for the Government to decide and that departures from ORG recommendations might on occasion become necessary to ensure acceptable award levels . ORG recalls that the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with the terms of awards handed down by a compulsory arbitration tribunal . Any departure from this practice would detract from the effective application of the principle that , where strikes by workers in essential services are prohibited or restricted , such prohibition should be accompanied by the existence of conciliation procedures and of impartial arbitration machinery , the awards of which are binding on both parties . ”

NORP The most recent consideration of the situation is contained in Report No . CARDINAL of ORG , of DATE . ORG took note of the information provided by the Government on latest developments ( including the ORG ) and commented :

" CARDINAL . The ORG notes the information provided by the Government with satisfaction . Observing that it has been dealing with this case DATE and has been requesting the Government to initiate consultations with the complainant and the prison service with a view to achieving a satisfactory solution to the need to provide for an appropriate mechanism to compensate for the strike prohibition , the ORG wishes to recognize the efforts made by all the parties concerned and commends the Government ’s desire to address the issues raised in this case . It encourages the ORG to maintain full , frank and meaningful consultations with all interested parties in the future . "


Violation of Art. 5-3;No violation of Art. 6-1

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

The applicants were arrested and taken into custody on DATE and DATE respectively on suspicion of their involvement in the throwing of Molotov cocktails at various public buildings . On DATE ORG ordered their remand in custody . The applicants were aged DATE ( PERSON ) and DATE ( the other applicants ) at the time of the events .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicants and CARDINAL other persons , accusing them of throwing Molotov cocktails at the LOC primary school and the LOC public garage on DATE and of attempting to throw Molotov cocktail at the LOC primary school with a view to supporting the activities of an illegal organisation , namely the ORG ( ORG Party ) . The charges were brought under LAW of LAW .

On DATE the criminal proceedings against the applicants and CARDINAL other accused commenced before ORG .

On CARDINAL DATE the court heard the applicants who refuted the allegations against them and their earlier submissions given before the police , public prosecutor and ORG . They also challenged the accuracy of the arrest protocol and the report on the reconstruction of the events . The court decided to secure the testimony of those who had attended the arrest and the reconstruction of events and the submissions of the accused who were not detained . It further ordered that the birth date of PERSON and another accused be determined since they had claimed that they were actually born in DATE .

DATE and DATE , ORG held QUANTITY hearings where it took various procedural decisions and postponed the trial as the procedure concerning the determination of DATE accused had not been completed .

At the hearings held on DATE and DATE respectively , the court requested the prosecution and the defendants to submit their observations on the merits of the case . On DATE the applicants ' lawyer requested an extension for the submission of the applicants ' observations . This request was accepted by the court .

NORP Throughout the proceedings the applicants ' lawyer repeatedly requested that the applicants be released pending trial . He maintained , inter alia , that they were juveniles and that their acts could not be considered to constitute an offence under LAW . The first instance court dismissed the applicants ' requests until DATE , having regard to the nature of the offence with which they were charged and the state of the evidence .

NORP On DATE the court decided to defer sentencing the applicants and their co - accused , pursuant to LAW no . DATE . It therefore ordered the release of the applicants from detention .

NORP The public prosecutor appealed .

On DATE ORG upheld the decision of the first instance court .

The relevant domestic law and practice in force at the material time are outlined in the PERSON and PERSON judgment v. GPE , ( no . CARDINAL , § § CARDINAL , DATE ) .