No violation of Art. 5-1;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant was indicted in ORG ( PERSON ) on charges of aggravated larceny . On DATE ORG appointed PERSON as defence counsel for the applicant .

On DATE ORG ordered the applicant 's pre - trial detention in connection with the criminal proceedings instituted against him . The relevant part of the decision reads :

“ ... the defendant PERSON has been charged with repeated criminal offences of aggravated larceny under LAW ) of the C[riminal ] C[ode ] which he committed on QUANTITY occasions DATE and DATE .

In view of the following facts : that the defendant PERSON has been charged with repeated criminal offences of aggravated larceny over DATE ; that according to the criminal records he has already been convicted of that same offence ; that before this court several sets of criminal proceedings are pending [ against him on charges ] of the criminal offence under LAW ] ; that he has neither income nor property – this panel finds that these circumstances justify the suspicion that he could commit the same or similar criminal offence were he to remain at large , which makes ordering his detention under LAW ) of LAW justified . ”

The applicant was arrested and remanded in custody on DATE . He lodged an appeal against the decision of CARDINAL DATE . On DATE ORG PERSON GPE ) allowed the applicant 's appeal and quashed the decision of DATE , but did not lift the applicant 's detention .

The operative part of this decision reads :

“ the appeal by the defendant PERSON is allowed , the first - instance decision ( but not the applicant 's detention ) is quashed and the case is to be remitted to that court for fresh deliberation . ”

The relevant part of the reasoning reads :

“ The appeal is well - founded .

The defendant 's allegations that the impugned decision was adopted in breach of the provisions of criminal procedure under LAW in conjunction with LAW of ] C[riminal ] P[rocedure ] are well - founded . The reasoning of the impugned decision states that the meeting , held after the indictment had been lodged , at which the panel deliberated on [ the defendant 's ] detention , was held in the absence of ORG , the defence lawyer officially appointed for the defendant PERSON , in accordance with LAW ORG . However , the defendant questioned the finding of the first - instance court that defence counsel had been properly summoned to the panel meeting in question , pursuant to LAW ORG . The defendant alleged in his appeal that his officially appointed defence counsel had not been served with the decision of his appointment prior to the panel meeting of CARDINAL DATE where [ the panel ] had been deliberating on his detention . Defence counsel had not been summoned to the panel meeting in question . The defendant maintained that the summons for the panel meeting had been sent to his defence counsel by fax on DATE at TIME He enclosed a copy of the minutes of a different hearing held before FAC on DATE in proceedings no . P-CARDINAL/CARDINAL showing that [ the lawyer appointed for him ] had been present at that hearing TIME and that , therefore , since the panel meeting was held at TIME , his defence counsel had not been properly summoned to that meeting .

The above circumstances show that the defence lawyer was not properly summoned to the panel meeting at which the defendant 's detention was deliberated upon , despite the fact that , pursuant to LAW ORG , he should have received the summons in time in order to be able to appear . Therefore , the right of the defendant to be defended by officially appointed counsel , who could only be a practising lawyer , at a panel meeting at which the decision on his detention was to be taken , and [ whose absence ] might influence that decision , was infringed .

It is also important to point out that the facts concerning the question whether the appointed lawyer received the decision of his appointment and whether he was properly summoned to the panel meeting at which the question of the defendant 's detention was to be deliberated upon could not be taken to have been correctly and sufficiently established , in view of the reasons stated above .

The first - instance court must establish whether the lawyer PERSON from GPE received , and if so , when , the decision on his appointment as defence counsel and it must then properly summon him to a fresh panel meeting where the possibility of [ implementing ] a custodial measure is to be deliberated .

In view of the above considerations , the appeal of the defendant PERSON is to be allowed , the impugned decision quashed ( but not the detention ) and the case remitted to the first - instance court for fresh deliberation ( LAW of the ORG ) . ”

On DATE ORG ordered the applicant 's detention under LAW ) of LAW . On DATE an appeal lodged by the applicant was dismissed by ORG .

On DATE the applicant lodged a constitutional complaint against the decision of DATE , arguing that , although the decision on his detention had been quashed , his detention had not been lifted .

On DATE ORG dismissed the charges against the applicant because the ORG Attorney had dropped the charges on the ground that there was no evidence that the applicant had committed the criminal offence in question . On DATE the same court lifted the applicant 's detention and the applicant was immediately released .

On DATE ORG ( Ustavni sud PERSON ) declared the applicant 's constitutional complaint of CARDINAL DATE inadmissible on the grounds that the impugned decision was no longer operative since , in the meantime , on DATE , ORG had issued a fresh decision ordering the applicant 's detention . The relevant part of the decision reads :

“ CARDINAL . ... ORG has established that in the fresh proceedings ORG adopted a new decision no . Kv-CARDINAL/CARDINAL - CARDINAL ( K-CARDINAL/CARDINAL - CARDINAL ) of DATE ordering the applicant 's detention .

Since the new decision ordered the applicant 's detention and practically set aside the impugned decision , the conditions for considering the merits of the complaint had ceased to exist by the time ORG was deciding on the applicant 's constitutional complaint , . ”

On an unspecified date the applicant brought a civil action against the ORG before ORG , seeking MONEY ( HRK ) on account of damages he had suffered owing to his “ unfounded ” detention . On DATE ORG allowed the claim and granted the applicant HRK CARDINAL,CARDINAL . On an unspecified date the ORG Attorney 's ORG lodged an appeal and the appeal proceedings are currently pending .

Section CARDINAL(CARDINAL ) of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL ) reads :

“ CARDINAL . Everyone may lodge a constitutional complaint with ORG if he or she deems that a decision ( pojedinačni akt ) of a ORG body , a body of local and regional self - government , or a legal person with public authority , which has decided on his or her rights and obligations , or on a suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional right ) ... ”

The relevant provisions of LAW ( Zakon o kaznenom postupku – Official Gazette nos . PERCENT , CARDINAL/CARDINAL , CARDINAL , CARDINAL and CARDINAL , ORG and DATE ) provide as follows :

( CARDINAL ) A CARDINAL - judge panel of a ORG adopts decisions out of a hearing . ”

( CARDINAL ) Detention may be imposed only if the same purpose can not be achieved by another [ preventive ] measure .

( CARDINAL ) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist .

( CARDINAL ) When deciding on detention , in particular its duration , the court shall take into consideration the proportionality between the gravity of the offence , the sentence which ... may be expected to be imposed , and the need to order and determine the duration of detention .

( CARDINAL ) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist , in which case detention shall immediately be lifted .

“ ( CARDINAL ) Where reasonable suspicion exists that a person has committed a criminal offence , he or she may be placed in detention if :

special circumstances justify the suspicion that the person concerned might reoffend ... ”

“ ( CARDINAL ) Detention may be ordered only in a written decision of the competent judicial authority .

( CARDINAL ) After the indictment has been lodged ... the detention is ordered , extended and lifted by a judicial panel under LAW . At the hearing ... the detention is ordered , extended and lifted by a judicial panel or a single judge conducting the hearing .

“ ( CARDINAL ) The ORG Attorney and defence counsel and , if needed , also the defendant , shall be invited to the panel meeting ... at which the court decides on ordering , lifting or extending the detention ...

( CARDINAL ) After the indictment has been lodged ... a [ judicial ] panel ... shall examine DATE whether the statutory conditions for detention continue to exist ... ”

Article CARDINAL paragraph CARDINAL enlists grave breaches of the provisions of criminal procedure .

( CARDINAL ) When deciding on an appeal [ against a decision ] a court may declare it inadmissible as being lodged out of time or as impermissible ; dismiss it as unfounded ; or accept it and reverse or quash it and remit the case for fresh examination .

“ Compensation may be awarded to a person who

was detained but the criminal proceedings against him or her were never instituted or were terminated by a final decision ; or [ a person ] who was acquitted by a final judgment or where the charges were dismissed by a final judgment .

The relevant provisions of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL and CARDINAL ) read as follows :

“ ( CARDINAL ) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by LAW .

( CARDINAL ) The right to respect for one 's personal integrity within the meaning of this LAW includes the right to life , physical and mental health , good reputation and honour , the right to be respected , the right to respect for one 's name and privacy of personal and family life , freedom et alia .

“ Damage is ... infringement of the right to respect for one 's personal dignity ( non - pecuniary damage ) . ”

The relevant part of section ORG ) of LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) reads as follows :

“ A person intending to bring a civil suit against GPE shall first submit a request for a settlement to the competent ORG Attorney 's ORG .

Where the request has been refused or no decision has been taken within DATE of its submission , the person concerned may file an action with the competent court .


CASE OF MATHIEU-MOHIN AND CLERFAYT v. BELGIUM

No violation of P1-3;No violation of Art. 14+P1-3

ORG Mrs. PERSON , who is a LANGUAGE - speaking NORP citizen , currently lives in GPE but was living in Vilvoorde ( PERSON ) at the time she made her application to the ORG . Vilvoorde is in the administrative district of FAC ( Hal - Vilvorde ) , in GPE , and in the electoral district of GPE ( see paragraphs DATE , DATE and CARDINAL - CARDINAL below ) .

The applicant had been elected by direct universal suffrage in the latter constituency and at the time sat in the ORG , CARDINAL of ORG of the national ORG . As she had taken the parliamentary oath in LANGUAGE , she could not be a member of ORG ( see paragraphs DATE and CARDINAL below ) . She was , on the other hand , a member of ORG , but not of ORG ( see paragraphs CARDINAL and CARDINAL below ) .

She was not re - elected on DATE and did not stand in the general election of DATE .

ORG Mr. PERSON , who is likewise a LANGUAGE - speaking NORP national , was living - and still lives - in PERSON - Rode ( Rhode - Saint - Genèse ) . Like Vilvoorde , this municipality is in the administrative district of FAC and the electoral district of GPE . Together with CARDINAL other localities on the outskirts of the capital , however , it was given a " special status " by ORG because of its large number of LANGUAGE - speaking inhabitants ( see paragraph CARDINAL below ) .

Mr. PERSON was from the outset active in the ranks of the GPE NORP - Speakers’ NORP Front . Since DATE he has sat in the national ORG - in ORG - as a member for the electoral district of GPE . He took the parliamentary oath in NORP , which prevents him from belonging to ORG ; on the other hand , he was and is a member of ORG , but not of ORG .

ORG On DATE , Mr. PERSON sought leave from the Speaker of ORG to put a question to the member of ORG ( see paragraph CARDINAL below ) responsible for matters relating to regional planning , land policy , subsidised housing and compulsory purchase in the public interest , on a number of relevant issues arising in PERSON - Rode and in other municipalities in the electoral district of GPE . DATE , leave was refused him on the ground that his request was inadmissible . He accordingly approached the Speaker of ORG on DATE , who gave him a similar reply on DATE .

GPE was initially conceived , in DATE , as a unitary ORG although divided into provinces and municipalities with a large degree of autonomy ( Articles CARDINAL , DATE and CARDINAL of the LAW of DATE ) , but it is gradually moving towards a federal pattern of organisation .

This process of change , in which the main landmarks have been the constitutional reforms of DATE and CARDINAL DATE , is not yet over . Apart from a number of repercussions on central national institutions , it has been reflected in the creation of ORG ; and the position of elected representatives and electors resident in the administrative district of ORG has not remained unaffected .

ORG Legislative power at national level is exercised jointly by the King and both ORG , i.e. ORG and the ORG ( LAW ) . ORG has CARDINAL members elected for DATE by direct universal suffrage in a compulsory secret ballot , under a system of proportional representation ( Articles CARDINAL , DATE , CARDINAL § CARDINAL and DATE ) ; the ORG ’s membership is made up of CARDINAL Senators elected in the same manner , together with a further number either elected by the provincial councils or else co - opted , again for DATE ( Articles DATE ) .

As regards ORG , each electoral district has as many seats as the number of times by which its population can be divided by the national factor , which is calculated by dividing the population of GPE ; the remaining seats are allotted to the districts with the largest surplus unrepresented populations ( Article CARDINAL(CARDINAL ) ) . In order to win a seat , a candidate must poll CARDINAL votes , the exact quota varying slightly from CARDINAL constituency to another .

ORG For certain decisions specified in the LAW , the elected members of each ORG are divided into a LANGUAGE - language group and a NORP - language group in the manner prescribed by law and irrespective of the language each member personally speaks ( LAW ) .

In ORG the LANGUAGE - language group includes as of right the members elected by the constituencies of the LANGUAGE - speaking region and by the constituency of the district of Verviers , while the NORP - language group contains the members elected by the constituencies of the NORP - speaking region ( see paragraph DATE below ) ; the members elected in the GPE electoral district belong to CARDINAL or the other group , according as they choose to take the parliamentary oath in NORP or in NORP ( section CARDINAL(CARDINAL ) of LAW of DATE ) .

Similar criteria apply to the language groups in the ORG ( section CARDINAL(CARDINAL ) of the same Act ) .

ORG The language groups have a role to play , inter alia , in the making of various decisions - decisions to withdraw a territory from the scheme of division into provinces in order to give it a special status ( LAW , last paragraph ) ; to rectify or otherwise alter the boundaries of the language regions ( LAW ) ; to lay down the composition and manner of functioning of ORG ( LAW in fine ) ; to specify the scope of the powers of the aforesaid LAW CARDINAL bis § § CARDINAL in fine , QUANTITY bis in fine and CARDINAL bis ) ; and to determine the powers and territorial jurisdiction of regional institutions ( DATE , last paragraph ) . In such cases LAW requires " a majority of votes in each language group of each ORG " ; further conditions are that " the majority of the members of each group is present " and that " the total of the affirmative votes cast in the CARDINAL language groups amounts to CARDINAL of the votes cast " .

In addition to this there is the system - sometimes called the " alarm bell " - provided for in LAW :

" Other than for the budgets and for Acts requiring a special majority , a reasoned motion signed by DATE of the members of CARDINAL of the language groups may be moved after the report has been tabled and before the final vote is taken in public session , stating that the provisions of a specified PERSON are likely to be seriously detrimental to relations between the ORG .

In that case the parliamentary proceedings shall be suspended and the motion referred to the ORG , which shall give a reasoned opinion on it within DATE and request the ORG concerned to vote either on this opinion or on the PERSON , possibly in amended form .

This procedure shall not be used more than once by the members of a language group in respect of any one Bill . "

These provisions are designed primarily to protect the speakers of the country ’s minority language , i.e. NORP .

On the other hand , membership of a language group does not entail any obligation to use the language concerned during parliamentary debates . Furthermore , by the terms of LAW , members of ORG and the ORG " represent the nation " as a whole , " not solely the province or subdivision of a province which has sent them to ORG " .

ORG As to the ORG , it shall have " as many LANGUAGE - speaking Ministers as NORP - speaking ones " , " with the possible exception of the Prime Minister " ( LAW ) .

ORG By LAW , added on DATE , GPE is divided into " CARDINAL language regions : the LANGUAGE - language region , the LANGUAGE - language region , the bilingual region of ORG and the NORP - language region " ; each municipality " shall belong to CARDINAL of these " .

The first language region comprises the provinces of GPE , GPE and GPE , the province of GPE excluding the municipalities in the LANGUAGE - language region , and the district of Nivelles in the province of GPE ; the second region contains the provinces of GPE , GPE , GPE and GPE and also the districts of FAC in which Vilvoorde and NORP - Rode lie ( see paragraphs DATE and DATE above ) - and PERSON in PERSON ; the third , GPE and CARDINAL municipalities on its outskirts ; and the fourth , CARDINAL of the municipalities in the district of Verviers ( sections CARDINAL of the Acts on the use of languages in administrative matters , consolidated on DATE , hereinafter referred to as " the DATE consolidated Acts " ) .

ORG The language regions serve to define the territorial scope of Acts on the use of languages in administrative and judicial matters as well as in education ; they do not have their own powers or institutions . In this they differ from the Regions - sometimes described as " political " - which were set up under the constitutional reform of DATE .

ORG By LAW , first paragraph , of the LAW , GPE has " CARDINAL Regions : the Walloon Region , the NORP Region and LOC " ; there is no " German Region " .

LAW of DATE ( " the DATE LAW " ) " transitionally " demarcates the territory of the first CARDINAL Regions : the NORP Region comprises exactly the same provinces and administrative districts as the NORP - language region , while the LOC includes , in addition to the provinces of GPE , GPE and GPE and the district of Nivelles , the whole of the province of GPE not excluding the municipalities of the LANGUAGE - language region ( section CARDINAL of the DATE LAW ) .

On the other hand , the DATE LAW makes no mention of LOC . The boundaries of this continue to be governed by the final paragraph of LAW , consolidated on DATE , " establishing temporary ORG and regional institutions " ; they correspond to the " territory of the administrative district of ORG " .

ORG The DATE LAW was passed with the special majorities required under Articles CARDINAL bis and CARDINAL of the LAW ( see paragraph CARDINAL above ) and which would be required for any subsequent amendments . In the ORG it was passed by CARDINAL votes to CARDINAL , with CARDINAL abstentions , and in ORG by CARDINAL votes to CARDINAL , with CARDINAL abstentions .

ORG Lastly , LAW , first paragraph , of the LAW , which dates back to the revision of CARDINAL DATE , establishes " CARDINAL Communities : ORG , ORG and the German - speaking Community " , all of which - like the PERSON and NORP Regions - have legal personality ( section CARDINAL of the DATE LAW ) .

Section CARDINAL(CARDINAL ) of the DATE LAW was enacted to implement LAW , second paragraph , of the LAW and it sets out , at length and in detail , the competence of the PERSON and NORP Regions in matters of regional planning , the environment , rural renewal and nature conservation , housing , water policy , economic policy , energy policy , subordinate authorities , employment policy and applied research .

It does not apply to LOC , which continues to come under the national ORG as regards regional matters or those which can be regarded as local ( section CARDINAL of the " ordinary " Act on Institutional Reform of CARDINAL DATE , taken together with LAW consolidated " LAW of DATE ) .

ORG Article CARDINAL bis § § CARDINAL , QUANTITY of the LAW confers powers on the NORP and NORP Communities in cultural matters , education ( with certain exceptions ) , co - operation between the ORG , international cultural co - operation , matters on which members of the public may correspond with the authorities in their own language even if it is not the local official language ( matières " personnalisables " ) and - in some fields - language use . Sections CARDINAL and CARDINAL ) of the DATE LAW contain detailed provisions as to cultural matters and matières personnalisables ; the latter relate to health policy , aid for individuals and applied scientific research . The German - speaking Community , to which little further reference will be made hereinafter , has slightly less extensive powers ( LAW ) .

ORG Article CARDINAL , second paragraph , of the LAW leaves it to ORG to set up the necessary regional bodies .

LAW , on the other hand , provides that ORG and the Flemish Community shall each have a ORG and an Executive . Under the following paragraph , these ORG " shall be able to exercise the powers of GPE and the NORP Region respectively , in the circumstances and the manner prescribed by law " .

ORG The legislature has availed itself of this possibility in respect of GPE only . By section CARDINAL(CARDINAL ) of the DATE LAW , " the ORG and the Executive of ORG " , referred to as " ORG " ( " de Vlaamse Raad " ) and " the NORP Executive " ( " de Vlaamse Executieve " ) , are vested with powers not only in respect of the Community matters listed in DATE the LAW but also , in LOC , in respect of the regional matters listed in LAW .

On the other hand , there is a ORG and an Executive of ORG matters and a Walloon Regional Council and Executive for regional matters ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of the DATE LAW ) . Subsection CARDINAL of section CARDINAL of the DATE LAW admittedly authorises ORG to " decide by common accord " that " the ORG and Executive of ORG " shall exercise , in GPE , " the powers of the regional institutions in respect of the matters referred to in LAW of LAW " , but it has not been applied hitherto .

ORG GPE continues for the time being to be regulated by the consolidated LAW which has been referred to previously . It does not have any legislative assembly similar to ORG or ORG or any executive elected by such an assembly ; it has only a " ministerial committee " appointed by royal decree ( section CARDINAL ) .

According to the Government , this is a " ‘ wait - and - see’ situation " . In DATE , LAW ORG d’Etat , which had been asked for its opinion , expressed the view that the PERSON that was to become LAW was " constitutionally admissible only on condition that implementation of LAW [ of LAW ] in respect of LOC is merely postponed and not abandoned and that failure to implement it does not continue beyond a reasonable time " .

In a statement on DATE , the government elected DATE made it clear that ORG the State ( ORG pour la réforme de l’État ) would have to " pay particular attention to the problems of GPE " . ORG was set up under a royal decree of DATE and is staffed by parliamentarians and practising or former university teachers of constitutional law . Its remit is to prepare the ground for the " continuation , amendment and improvement of reform of the ORG " .

The LAW indicates only , in LAW in fine ( NORP and ORG ) , LAW , second sub - paragraph ( ORG ) , and LAW , second paragraph ( Regions ) , that the ORG shall consist of elected delegates .

When required to prescribe how these were to be appointed , the legislation provided for CARDINAL consecutive transitional periods designed to ease the change to a permanent system . The first period , during the course of which the application to the Commission was lodged ( DATE ) , ended with the complete renewal of both ORG on DATE ; the second period , which is not yet over , will end once Articles CARDINAL and CARDINAL of the LAW , concerning the ORG , have been revised .

ORG During the first transitional period ORG and ORG comprised the members of the Dutch- and LANGUAGE - language groups of the CARDINAL ORG respectively ; ORG was composed of those members of the same LANGUAGE - language groups who were elected either in the provinces of GPE , GPE , GPE or GPE , or alternatively in PERSON or by the ORG if , additionally , they were resident in GPE on DATE of their election ( section CARDINAL ) of the DATE LAW ) .

ORG For the duration of the second transitional period , which has not yet ended , ORG , ORG , and ORG consist respectively of the members of :

- the NORP - language group in ORG and , if they have been directly elected by the electorate , in the ORG ;

- the LANGUAGE group in ORG and , subject to the same condition , in the ORG ; and

- the LANGUAGE group in either ORG , provided that they are ORG or Senators directly elected in the provinces of GPE , GPE , GPE or GPE or in the district of Nivelles .

This is the provision made in LAW , to which the ORG complaints are primarily directed ( see paragraph CARDINAL below ) . The section was passed by the special majorities required under LAW bis and CARDINAL of the LAW . In the ORG it was passed by CARDINAL votes to CARDINAL , with CARDINAL abstentions , and in ORG by CARDINAL votes to CARDINAL , with CARDINAL abstentions .

ORG Once the permanent system has come into force , the CARDINAL Councils will consist solely of members of the ORG directly elected by the electorate , viz . :

- the Senators of the NORP - language group in the case of ORG ; and

- the Senators of the LANGUAGE - language group in the case of ORG and , if they were elected in the provinces of GPE , GPE , GPE or GPE or in the district of Nivelles , in the case of ORG ( sections CARDINAL and CARDINAL of the DATE LAW ) .

ORG The first paragraph of section CARDINAL of the DATE LAW makes a special provision in respect of the " members of ORG elected by the constituency for the GPE district and who , for as long as that electoral district shall comprise [ as it does DATE ( see paragraph CARDINAL below ) ] several administrative districts , are resident in the GPE - Capital bilingual region on DATE of their election " : although they are on the same footing as their colleagues in Community matters , they " shall not vote within ORG on matters for which LOC has responsibility " .

ORG The CARDINAL Executives are elected by the ORG from among their own members ( sections CARDINAL of the DATE LAW ) . The NORP Executive has CARDINAL members , ORG three and the NORP Regional Executive CARDINAL ; CARDINAL member of ORG and ORG " shall belong to the GPE - Capital bilingual region " ( section CARDINAL ) .

" Whenever the NORP Executive discusses matters for which GPE has responsibility , any members elected by the constituency of the GPE district and who , for as long as that electoral district shall comprise several administrative districts , are resident in the GPE - Capital bilingual region on DATE of their election shall sit only in an advisory capacity " ( section CARDINAL(CARDINAL ) ) .

ORG ( see paragraph CARDINAL above ) consists of CARDINAL members appointed " by royal decree after deliberation in ORG " and not elected by an assembly . The members are : CARDINAL Minister , who acts as Chairman , and CARDINAL Ministers of State " CARDINAL of whom shall be from a different language group from the [ Chairman ’s ] " ( section CARDINAL , first paragraph , of the DATE consolidated LAW .

ORG The NORP and NORP Communities , like the GPE and NORP Regions , have power to issue decrees , and this power is exercised jointly by their respective institutions ( Article CARDINAL bis and Article CARDINAL bis § § CARDINAL , QUANTITY bis and CARDINAL of the LAW , sections CARDINAL and CARDINAL of the DATE LAW ) ; additionally , their Executives have power to make regulations ( section CARDINAL of the DATE LAW ) . The Executives each work in only CARDINAL language ( NORP or NORP , as appropriate ) , without interpreters for the other language .

A decree has " the force of law " and " may abrogate , supplement , amend or replace existing provisions of law " ( section CARDINAL(CARDINAL ) of the DATE LAW ) . The constitutional reforms of DATE and DATE thus resulted in the rule - making function being shared by CARDINAL distinct legislative bodies : the national ORG , ORG and ORG .

Subject to a number of exceptions , ORG decrees and , in Community matters , those of ORG apply in the LANGUAGE - language region and the LANGUAGE - language region respectively , " and also to institutions established in the GPE - Capital bilingual region which , by reason of their activities , must be regarded as belonging exclusively to CARDINAL of the Communities " ( Article CARDINAL bis § § CARDINAL and QUANTITY ) ; ORG decrees and , in regional matters , those of the ORG apply " in GPE or LOC , as appropriate " ( section ORG ) of the DATE LAW ) ; and the decrees of ORG indicate whether " they regulate any of the matters referred to in LAW in LAW of LAW " , in other words Community or regional matters ( section CARDINAL(CARDINAL ) , second paragraph , of the DATE LAW ) .

By LAW , " the procedure for the avoidance of conflict between statutes , decrees and the rules referred to in LAW , and between different decrees or different [ rules ] shall be prescribed by law " . " For the whole of GPE there shall be ORG " responsible for resolving such conflicts and whose membership , jurisdiction and manner of functioning is to be laid down by law ( Act of DATE ) .

ORG The administrative district of FAC was created in DATE , and DATE it comprises the municipalities of the former administrative district of GPE , excluding those in the bilingual district of GPE , but including the CARDINAL " peripheral municipalities with special status " , of which PERSON - Rode is one ( sections CARDINAL(CARDINAL ) , DATE and DATE of the DATE consolidated Acts ) .

ORG comes within the NORP - language region and LOC and thus under the authority of ORG , and is accordingly not subject to the authority of ORG institutions or those of GPE ( see paragraphs DATE and CARDINAL above ) . It nevertheless contains a sizable LANGUAGE - speaking minority : according to the applicants ( whose figures were not disputed by the Government ) , CARDINAL people out of a total population of CARDINAL at DATE . The NORP - speakers are even claimed to be in the majority in the CARDINAL " peripheral municipalities " , and ORG is alleged to have acted against their wishes in hitherto refusing to incorporate these municipalities into LOC .

ORG Ordinarily , electoral districts in GPE correspond to administrative ones ( LAW ) . There is CARDINAL exception , however . The administrative districts of GPE - Capital and ORG together form a single electoral district for parliamentary and provincial elections , with GPE as the principal town ( section CARDINAL(CARDINAL ) , second paragraph , of the DATE consolidated Acts ) . The votes cast in the CARDINAL administrative districts are consequently counted together , and it is impossible to distinguish between candidates elected by the CARDINAL district and those elected by the other . The applicants claim that the LANGUAGE - speaking voters in the FAC district can expect - given their numbers and the statutory quota ( see paragraphs CARDINAL and CARDINAL above ) - to return CARDINAL members to ORG by their own votes alone .

In the general election of CARDINAL DATE there were CARDINAL registered voters in the GPE electoral district , who had to elect ORG and CARDINAL Senators ( Royal Decree of DATE and Act of DATE ) .

ORG Nothing prevents LANGUAGE - speaking candidates - whether resident in FAC or not - from standing for election in that district , or the voters - whether LANGUAGE - speaking or not - from voting for them . If they are elected , they may take the parliamentary oath in LANGUAGE or NORP as they wish , irrespective of the language they personally speak ( see paragraph CARDINAL above ) .

If they take the oath in LANGUAGE ( as the applicants did ) , their membership of the LANGUAGE - language group in ORG or the ORG entitles them to sit on ORG ( which has no responsibility for the district of FAC ) but not on the NORP Council - whether exercising its ORG or its regional functions - nor on ORG ( see paragraphs CARDINAL - CARDINAL and CARDINAL above ) .

Conversely , if they take the oath in NORP , they will be members of a NORP - language group and will accordingly sit on ORG but not on ORG nor on ORG ( see paragraphs CARDINAL - CARDINAL above ) ; and they will lose the right to vote in a LANGUAGE - language group on those matters in respect of which the LAW requires special majorities ( see paragraph CARDINAL above ) .

Correspondingly , the LANGUAGE - speaking voters in FAC can not be represented on ORG other than by parliamentarians who have taken the oath in NORP .

Candidates are not under any obligation to state in advance which language group they will join , and they do not usually do so .


Violation of Art. 5-3 with regard to the right to be brought promptly before a judge;Violation of Art. 5-3 with regard to the length of detention on remand;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

During the relevant period the applicant , who was addicted to drugs , was charged with numerous counts of theft . The charges concerned thefts of electric appliances , small amounts of money , small religious ceremonial objects , food , cigarettes and objects of higher value , such as icons and antiquities . CARDINAL separate investigations were launched in relation to those thefts . Some of the investigations were initially instituted against an unknown perpetrator whereas in others the applicant , either alone or together with other persons , was named as the suspected perpetrator from the outset .

In the course of the ensuing criminal proceedings the investigations were grouped . CARDINAL sets of such grouped proceedings are relevant to the present application : CARDINAL concerning petty thefts and the second concerning icons and antiquities .

NORP These included CARDINAL investigations and CARDINAL summary investigations , instituted DATE . The applicant was charged for the first time on DATE in respect of CARDINAL of the investigations . Later charges were brought in the remainder and eventually the CARDINAL files were joined .

During the investigation , DATE , the applicant and other suspected or accused persons were interrogated numerous times , fortyfour witnesses were questioned , CARDINAL on - site visits were made , CARDINAL searches were undertaken and numerous expert reports were commissioned and examined ( psychiatric reports , finger - print reports and accounting reports ) .

CARDINAL of these acts of investigation concerned charges under which the applicant was eventually convicted . The remainder concerned charges in respect of which the applicant was later acquitted .

On DATE the competent prosecutor referred the case back to the investigator as there had been irregularities and discrepancies . The investigator concluded his work on DATE .

On DATE ORG submitted an indictment to ORG .

On DATE the ORG , noting that there had been breaches of procedural rules and discrepancies as regards the value of some of the stolen objects , referred the case back to the prosecutor .

On DATE the prosecutor submitted a fresh indictment .

On DATE ORG , noting that some of the defects of the indictment had not been remedied despite the instructions given in the decision of DATE and pointing to other discrepancies , referred the case back to the prosecutor .

On DATE the prosecutor again submitted an indictment .

On DATE the ORG , noting that certain procedural rules concerning the modification of the charges had not been observed , referred the case back to the prosecutor once more .

The final version of the indictment was submitted on DATE . It concerned CARDINAL counts of theft allegedly committed by the applicant and CARDINAL other persons .

NORP Throughout the judicial proceedings the applicant and his lawyer regularly appeared when summoned and did not cause any of the adjournments .

The first hearing was held on CARDINAL DATE . The court noted that CARDINAL of the co - accused persons was not legally represented whereas legal representation was mandatory in view of the contradictory interests of the CARDINAL accused persons . As a result , the hearing was adjourned .

It resumed on DATE but had to be adjourned as CARDINAL of the accused persons had not appeared . The court ordered his arrest .

On DATE the hearing proceeded with the questioning of the CARDINAL accused persons . Several experts and witnesses were also heard . As some of the witnesses had not appeared , the case was adjourned .

At the next hearing , held on DATE , several witnesses were heard . Others had not appeared , which necessitated an adjournment .

The hearing scheduled for DATE could not proceed as CARDINAL of the applicant ’s co - accused was ill .

When the hearing resumed on DATE several witnesses were heard but an adjournment was again necessary as other witnesses had not appeared .

The next hearing took place on DATE . Several witnesses were heard . The failure of CARDINAL witness to appear prompted another adjournment .

NORP Throughout the relevant period the GPE ORG sought police assistance for the establishment of the addresses of witnesses .

On DATE , at the last hearing , the ORG acquitted the applicant on QUANTITY of the charges and convicted him on the remaining seven . He was sentenced to CARDINAL GPE imprisonment , suspended .

On DATE the applicant appealed to ORG .

The Sofia City Court listed a hearing for DATE which , however , could not proceed as CARDINAL of the accused persons did not appear .

The hearing took place on DATE .

On DATE the ORG delivered its judgment . It accepted the applicant ’s argument that the case should be treated as CARDINAL concerning a continuing criminal activity and modified the conviction accordingly while upholding the sentence .

This second group of proceedings commenced on DATE when the applicant was arrested and charged with theft . Other files , concerning separate thefts were opened DATE . The applicant was charged with having stolen icons and antiquities .

During the preliminary investigation CARDINAL files concerning separate thefts were joined . Eventually , however , the indictment only concerned CARDINAL thefts , the other charges having been dropped .

Some of the investigations launched in DATE , DATE and DATE were suspended soon after their beginning as the perpetrators were unknown at the time . They resumed in DATE , when the applicant and other persons were charged .

NORP In the course of the investigations many witnesses were heard , several accused persons , including the applicant were questioned , on - site visits and searches were made and expert reports were commissioned and examined . Apparently , only a part of those investigation acts concerned charges eventually retained . According to the applicant , the relevant investigation activity was limited to the questioning of CARDINAL witnesses , QUANTITY confrontations , CARDINAL expert reports , CARDINAL on - site visits and CARDINAL search .

On DATE the investigator completed his work and submitted the file to the competent prosecutor .

On DATE the prosecutor ordered additional investigation . Those were finalised on DATE .

After having decided to drop CARDINAL of the charges , on DATE the prosecutor again referred the case back to the investigator who complied with the instructions and submitted a revised report on DATE .

On DATE the prosecutor submitted an indictment to ORG against CARDINAL accused persons , including the applicant .

NORP Throughout the judicial proceedings before ORG the applicant and his lawyer regularly appeared when summoned and did not cause any of the adjournments .

The first hearing before GPE , acting as a trial court , was listed for DATE but could not proceed as CARDINAL of the accused persons had not been summoned .

On DATE and CARDINAL DATE the trial could not begin as no ex officio lawyer had appeared for one of the accused , despite the court ’s repeated requests to ORG .

The hearing scheduled for DATE could not proceed as CARDINAL of the accused persons could not be brought from prison owing to his ill health .

The trial eventually began on CARDINAL DATE . On DATE the ORG heard the accused persons and the witnesses who had appeared . As some of the witnesses had not shown up , the hearing was adjourned until DATE .

On DATE another adjournment was ordered as certain witnesses and experts had not appeared .

The hearing could not proceed on DATE as CARDINAL of the accused persons , a prisoner , was not brought to the courtroom : the Minister of ORG had imposed a DATE ban on transfers of prisoners in view of municipal elections during that period .

On DATE and DATE the hearing was again adjourned as the lawyers of CARDINAL of the accused persons had not appeared , apparently owing to ill health .

NORP Throughout the relevant period the ORG sought police assistance for the establishment of the addresses of witnesses .

The last hearing took place on DATE . On DATE the ORG convicted the applicant in respect of CARDINAL thefts and acquitted him in respect of the fourth alleged theft . He was sentenced to CARDINAL years’ imprisonment . The CARDINAL other accused persons were also convicted and sentenced to terms of imprisonment .

Both the applicant and the prosecution appealed to ORG .

The applicant ’s whereabouts were unknown until DATE when he was arrested on new charges , unrelated to the present case . As a result of the applicant ’s address being unknown , ORG could not proceed with the case until DATE .

A hearing was listed for DATE but was adjourned as CARDINAL of the other accused persons was not legally represented . It appears that he was unable to continue paying his lawyer , which necessitated the appointment of an ex officio counsel and therefore an adjournment .

On an unspecified date in DATE the ORG held a hearing which was however adjourned as the report on the value of the stolen objects had not been submitted .

On DATE , having received the experts’ opinion that the value of the icons could not be determined , the ORG set aside the judgment of ORG of DATE and referred the case to the preliminary investigation stage of the proceedings . ORG found , inter alia , that there had been a number of discrepancies concerning the value of the stolen objects which affected the legal characterisation of the charges , that the lower court ’s judgment had not provided sufficient reasoning and that it had relied on inadmissible evidence .

As of DATE , the date of the latest information received from the parties in relation to the icons and antiquities case , the proceedings were pending at the investigation stage .

On DATE the applicant was arrested and remanded in custody on CARDINAL of the charges which eventually resulted in the criminal case concerning thefts of icons and antiquities . On DATE the applicant was released on bail .

On DATE the applicant was arrested and detained pending trial in relation to the group of case files which eventually resulted in the petty thefts case against him . On DATE he was released on bail .

On DATE the applicant was again arrested in relation to the petty thefts set of case files , brought before an investigator or a prosecutor , charged with additional counts of theft and placed under pre - trial detention .

On DATE the applicant ’s petition for release was dismissed by a prosecutor .

On DATE another petition for release was dismissed on grounds that the applicant was suspected of having committed offences after his release on DATE and that therefore there existed a danger of reoffending .

On DATE a request for release submitted by the applicant was dismissed by a district prosecutor . That decision was upheld on DATE by a regional prosecutor . The applicant ’s ensuing appeal was dismissed on DATE by ORG . The decision stated , inter alia , that the applicant was charged with numerous serious crimes and that there were other criminal proceedings pending against him . Therefore , his detention was mandatory under Article CARDINAL of LAW .

According to the applicant , on DATE and again on DATE he submitted to ORG , through the prison administration , appeals against his detention . The applicant stated that he had obtained registration numbers under the outgoing correspondence register of the prison but had never been notified of any examination or decision on his appeals . According to the Government , there was no evidence supporting the applicant ’s statement that he had submitted appeals in DATE and DATE

DATE . On DATE the applicant appealed to the ORG against his pre - trial detention . He relied , inter alia , on a legislative amendment , in force since DATE , according to which pre - trial detention pending the preliminary investigation could not exceed CARDINAL or DATE , depending on the gravity of the charges .

ORG held a hearing on DATE and ordered the applicant ’s unconditional release . ORG stated , inter alia , that the applicant had been diagnosed as suffering from addiction to drugs and was in need of medical treatment . Furthermore , all evidence in the case had been collected .

Despite ORG decision of DATE the applicant was only released on DATE owing to a misunderstanding concerning the different cases pending against him .

NORP In particular , during a certain period of time , the petty thefts case had been dealt with under investigation file number CARDINAL . The applicant ’s initial detention order of CARDINAL DATE carried that reference . When later another file , no . DATE , had been added to the set , the latter number had become the number of the joint file . In his appeal to ORG of DATE the applicant had referred to file number CARDINAL , which also figured in the ORG decision of DATE ordering his release .

That decision was transmitted to the prison administration on DATE . The prison administration , apparently noting that there existed a detention order under investigation case number CARDINAL and considering that that was a separate case , concluded that the applicant should remain in pre - trial detention . No written document was issued in this respect .

On DATE the applicant submitted a complaint to ORG stating that he was still in detention . He also stated that the CARDINAL file numbers concerned the same case . The complaint was registered at ORG on DATE .

On DATE ORG wrote to the prison administration clarifying the matter . The applicant was released on DATE .

On an unspecified date in DATE the applicant , assisted by a lawyer , brought before GPE a civil action against the prosecuting authorities and GPE claiming non - pecuniary damages for his allegedly unlawful detention DATE , the date by which his appeal of DATE should have been decided in accordance with the statutory DATE time - limit , and DATE , the date on which he was released .

DATE . After several hearings , on DATE the ORG reserved judgment .

By judgment of CARDINAL DATE ORG dismissed the applicant ’s claims on grounds that the period of his pre - trial detention had been deducted from the term of imprisonment to which he had been sentenced and that no compensation for non - pecuniary damage was due in such circumstances . The applicant appealed .

On DATE the ORG partly upheld the lower court ’s judgment , quashed it for the remainder and decided on the merits .

ORG noted that the fact that the applicant ’s request for release filed on DATE had not been examined until DATE was in violation of domestic law . Nevertheless , the court considered that it was not possible to speculate whether or not his release would have been ordered had his application been examined before DATE . For these reasons , the court upheld ORG judgment dismissing the applicant ’s claims for the period DATE and DATE .

ORG found , however , that from DATE until the applicant ’s release on DATE his detention had not been based on any legal ground . The court did not accept the reasoning of ORG as regards the deduction of the time spent by the applicant in detention , since that deduction had been made from a suspended sentence and , therefore , the applicant had not benefited from a shorter stay in prison . On that basis ORG ordered ORG , the body in charge of supervising the enforcement of pre - trial detention orders , to pay to the applicant MONEY ( “ BGN ” ) in non - pecuniary damages for his unlawful detention DATE and DATE . Since the applicant ’s claim had been for BGN CARDINAL and he owed court fees in an amount proportionate to the dismissed part of his claims , the applicant was ordered to pay BGN CARDINAL in court fees . The applicant was thus eventually entitled to BGN CARDINAL in compensation ( the equivalent of about EUR CARDINAL ) .

The applicant filed a cassation appeal with ORG . As of DATE the proceedings were pending .

The relevant provisions of LAW and the NORP courts’ practice at the relevant time are summarised in the ORG ’s judgments in several similar cases ( see , among others , the ORG v. GPE [ ORG ] , no . ORG , § § CARDINAL , ECHR CARDINALII ; PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINALXII ( extracts ) ) .

In DATE an amendment to LAW , the new Article CARDINALa , introduced the possibility for an accused person to have his case examined by a trial court if the investigation has not been completed within a certain statutory time - limit ( DATE in investigations concerning serious crimes and DATE in all other investigations ) .

Section CARDINAL of ORG of DATE ( „ Закон за отговорността на държавата за вреди , причинени на граждани “ ) provides , as relevant :

“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for :

NORP unlawful pre - trial detention ... , if [ the detention order ] has been set aside for lack of lawful grounds[. ] ”

In CARDINAL recent judgments ORG held that pretrial detention orders must be considered as being “ set aside for lack of lawful grounds ” – and that ORG liability arises – where the criminal proceedings have been terminated on grounds that the charges have not been proven ( реш. № CARDINAL/ DATE г. от DATE г. PERSON № CARDINAL г. на ВКС ) or where the accused has been acquitted ( реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ORG ) . The view taken appears to be that in such cases the pretrial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded .

On the other hand , the Government have not informed the ORG of any successful claim under section CARDINAL(CARDINAL ) of the LAW in respect of unlawful pretrial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions . It appears that rulings putting an end to pretrial detention in pending criminal proceedings have never been considered as decisions to “ set aside for lack of lawful grounds ” within the meaning of section CARDINAL(CARDINAL ) of the LAW . Also , the terms “ unlawful ” and “ lack of lawful grounds ” apparently refer to unlawfulness under domestic law .

By CARDINAL ) of the LAW , in certain circumstances a claim may be brought for damage occasioned by the “ unlawful bringing of criminal charges ” . Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator , that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty . In contrast with the solution adopted under section CARDINAL(CARDINAL ) ( see paragraph CARDINAL above ) , ORG has held that no liability arises under section CARDINAL(CARDINAL ) where the criminal proceedings were discontinued at the pre - trial stage on the ground that the accusation was not proven ( реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ВКС GPE г.о. ) .

Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of ORG have no claim under general tort law as LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; реш. № DATE г. от CARDINAL декември DATE г. , по PERSON № DATE г. на ВС GPE ) . The Government have not referred to any successful claim under general tort law in connection with unlawful pre - trial detention .


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

In DATE the applicant was discharged from the army with post traumatic stress disorder ( “ PTSD ” ) . Thereafter , he was involved in a legal dispute with ORG . On DATE and DATE he took part in protests concerning PTSD in GPE . The first protest passed without incident . However , during the second protest he was arrested .

He alleged that he was not informed of the reason for his arrest at the time . The authorities , however , alleged that he was informed that he was being arrested for breach of the peace . According to a subsequent police complaint report there was an independent witness who confirmed the police ’s account .

In any case , he was taken to PERSON ORG , where his particulars were taken , he was fingerprinted , photographed and DNA samples were taken . After TIME he was released from custody and a case alleging ‘ Breach of the Peace’ was submitted to ORG . ORG subsequently decided to discontinue the case .

In DATE the applicant was visited at his home by CARDINAL officers from ORG on an unrelated matter . During the visit the applicant had sight of a document he describes as his “ criminal record ” . On examining this document , he claims that he observed that the case relating to the incident in DATE in GPE was recorded even though no court proceedings had ever taken place .

Sections CARDINAL and CARDINAL of LAW DATE ( “ the DATE LAW ) provide ( in so far as relevant ) :

“ ( CARDINAL ) It is unlawful for a public authority to act in a way which is incompatible with a Convention right ...

( CARDINAL ) In this section " public authority " includes-

( a ) a court or tribunal , and

( b ) any person certain of whose functions are functions of a public nature , but does not include either ORG of ORG or a person exercising functions in connection with proceedings in ORG ...

( CARDINAL ) In relation to any act ( or proposed act ) of a public authority which the court finds is ( or would be ) unlawful , it may grant such relief or remedy , or make such order , within its powers as it considers just and appropriate .

( CARDINAL ) But damages may be awarded only by a court which has power to award damages , or to order the payment of compensation , in civil proceedings .

( a ) any other relief or remedy granted , or order made , in relation to the act in question ( by that or any other court ) , and

( b ) the consequences of any decision ( of that or any other court ) in respect of that act ,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made .

( CARDINAL ) In determining-

( a ) whether to award damages , or

( b ) the amount of an award ,

the court must take into account the principles applied by ORG in relation to the award of compensation under LAW ...

( CARDINAL ) In this section-

" court " includes a tribunal ;

" damages " means damages for an unlawful act of a public authority ; and

" unlawful " means unlawful under section DATE ) . ”

The NORP courts have relied on section CARDINAL of the CARDINAL Act to make awards of damages ( see R v ORG ex p PERSON [ DATE ] HRLR CARDINAL ) .


No violation of Art. 6-1 (fairness);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a public servant in ORG . On DATE she filed a criminal complaint for perjury and defamation against PERSON , with an application to join the proceedings as a civil party , but without seeking reparation . PERSON , a public servant in the same ministry , is the applicant ’s immediate superior . She alleged in particular that , in connection with an administrative investigation opened against her , PERSON had stated that she did not observe TIME and did not get on well with her colleagues .

On DATE , when the case was heard before ORG , the applicant reiterated her civil - party application and adduced her arguments . On DATE , ORG acquitted PERSON of the charges laid against him , finding that the applicant ’s allegations were unsubstantiated . In particular , after examining all the evidence , the court considered that the offending remarks had been truthful and that it had not been the intention of the accused to defame or insult the applicant ( judgment no . CARDINAL/CARDINAL ) .

On DATE this judgment was finalised and entered in the register of ORG .

On DATE the applicant requested ORG at ORG to lodge an appeal on points of law against judgment no . CARDINAL/CARDINAL of ORG . She alleged , in particular , that the judgment did not contain sufficient reasoning .

On DATE the applicant ’s request was dismissed by ORG at ORG , who endorsed the application itself with the handwritten comment : “ there is no legal or well - founded ground of appeal to ORG ” .

The Code of Criminal Procedure contains the following relevant provisions :

“ Judgments , orders of the chamber of judges , and orders of the investigating judge or of the public prosecutor shall give specific and precise reasons ...

Even where it is not required by a specific provision , all judgments and orders shall include reasoning , whether they are final or interlocutory and whether or not they depend on the discretion of the judge hearing the case . ”

“ ORG at ORG shall be entitled to appeal on points of law against any decision within the time - limit provided for in LAW ... ”


No violation of Art. 6-1;Remainder inadmissible

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

The applicant was born in DATE and lived in GPE .

On DATE the commanding officer of a military unit appointed the applicant as deputy master of the medium tanker ( MT ) Argun . On CARDINAL DATE the command of the auxiliary fleet service of ORG sent the applicant on a trade mission to GPE . On DATE the commander of the military unit appointed him as master of FAC . The applicant remained in this post until DATE .

DATE and DATE the tanker was leased out by ORG ( “ ORG ” ) to a private company ORG The lease agreement stipulated that the tanker was to be staffed by the auxiliary fleet service of ORG which also paid the staff 's wages in the NORP national currency . ORG was obligated to cover the part of the staff 's wages that was paid in foreign currency and the tanker maintenance costs .

On DATE ORG signed a new lease agreement with an NORP company ORG .

On an unspecified date the applicant and his crew brought proceedings in ORG for the unpaid wages earned by them in DATE and DATE .

On DATE the tanker was arrested in GPE , GPE , pending adjudication of the dispute .

By judgment of DATE ( of CARDINAL DATE according to the documents submitted by ORG ) , ORG declared GPE to be the lawful owner of the vessel .

On DATE ORG of GPE , the successor of ORG , signed a new lease agreement with a private company ORG , which was obligated to undertake all possible measures to release the tanker from arrest .

NORP By final judgment of CARDINAL DATE ORG awarded the applicant GPE dollars against the vessel FAC and interest at the rate of PERCENT per annum on that amount . The MT Argun was ordered to pay the applicant 's costs and travel expenses . It was also decided that the vessel would be sold at an auction to cover the court awards .

On DATE ORG heard the parties ' appeals and upheld the judgment of DATE .

On DATE ORG and ORG signed an agreement with a private agent PERSON seeking release of FAC from arrest and its transfer to ORG . On DATE PERSON signed an agreement with a third party Avangard-CARDINAL Shipping Company S.A. which won the auction and bought the vessel .

On DATE FAC was handed over to ORG .

According to the applicant , in DATE and DATE he received part of the judicial award in the amount of CARDINAL USD in respect of the wages and CARDINAL USD in respect of the accrued interest .

On DATE the applicant brought proceedings against the ORG complaining of the actions ( inaction ) of ORG in respect of his claims for unpaid wages and seeking to recover the said wages in the amount of CARDINAL USD as well as legal expenses and non - pecuniary damage . On DATE ORG of GPE declined jurisdiction in the case . This decision was upheld by ORG on DATE .

Thereafter , the applicant brought the same claims before ORG of GPE . On DATE ORG declined jurisdiction in favour of a justice of peace . This decision was upheld by ORG on DATE . It appears that the applicant did not bring his claims to any other court .

On DATE the authorities initiated criminal proceedings in respect of the applicant in connection with his claims in the NORP court .

On DATE the applicant was charged with fraudulent acquirement of title to the property of GPE and other related crimes . On DATE his case was sent for preliminary investigation to the military prosecutor 's office of ORG , and the applicant was ordered not to leave town .

On DATE the preliminary investigation was stayed pending the applicant 's convalescence . On DATE the investigation was resumed .

DATE and DATE the applicant and his legal counsel studied the case file .

On DATE the case was submitted for trial by ORG of GPE ( “ the ORG ” ) and was assigned to judge I.

On DATE the applicant requested that the preparatory hearing be postponed due to his counsel 's illness .

On DATE ORG refused to examine the case and ordered the prosecution to redraft the bill of indictment tainted with a number of defects . The case was returned to the court on DATE .

On DATE the hearing did not take place as the judge was involved in different proceedings .

The hearing of CARDINAL DATE also did not take place due to the applicant 's illness . The proceedings were stayed pending his convalescence .

On DATE the proceedings resumed , but the hearing did not take place as the applicant 's counsel did not appear .

On DATE the applicant was granted leave to study the new bill of indictment until DATE .

On DATE the court granted the applicant 's request to send the case back to the prosecutor for re - drafting of the bill of indictment . The case was returned to the court on DATE and was assigned to judge P.

The hearings scheduled for DATE and DATE did not take place due to the applicant 's illness .

In DATE the court began hearing the case on the merits . The court adjourned the proceedings in DATE , DATE and DATE , each time for DATE , due to the applicant 's or his counsel 's illness .

On DATE the court adjourned the proceedings for DATE as the judge was away on a study trip .

The hearings of DATE and DATE did not take place following the applicant 's and his counsel 's failure to appear .

By judgment of DATE the applicant was convicted of fraudulent acquirement of title to property by way of obtaining of the court award of allegedly unpaid wages , and received a suspended sentence of DATE imprisonment .

On DATE the applicant died .

Article CARDINAL provided that the procedure for enforcement of foreign judgments was determined by the relevant international treaties . It further stated that a judgment of a foreign court could be submitted for enforcement within DATE after its adoption .

Article CARDINAL provides that judgments of foreign courts concerning civil matters are recognized and enforced in GPE pursuant to a pertinent international treaty . It further stipulates that such judgments can be submitted for enforcement within DATE after their adoption .

Article CARDINAL provides that a request for enforcement of a foreign judgment should be filed with a regional court or other court of equal standing at the place of the debtor 's residence or location .

Article CARDINAL sets out the rules of procedure applying to the requests for enforcement of foreign judgments .

The court ruled that lack of a pertinent international treaty can not be cited as grounds for refusal of a request for enforcement of a foreign judgment . It further stated that such a request can be granted in the event that the courts of the relevant foreign ORG recognize the judgments of the NORP courts on the basis of reciprocity . It ordered that the lower court verify whether such reciprocity existed in the case at hand and inquire into the existence of other international treaties concerning the CARDINAL relevant GPE that might concern co - operation in the legal and judicial domain .

The Convention requires that that all members of ORG , including GPE , GPE and GPE grant the citizens of the other member GPE the national legal regime in all legal matters . Section III determines the reciprocal order of recognition and enforcement of the decisions taken by legal bodies in civil , family and criminal cases .


Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection dismissed (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Inhuman treatment);Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in PERSON .

The facts of the case as submitted by the parties are summarised in section A below ( paragraphs CARDINAL - CARDINAL ) . A description of the documents submitted by the Government is contained in section B below ( paragraphs CARDINAL - CARDINAL ) .

The applicant is the father of PERSON , born in DATE , who at the material time was an officer of the special police unit of ORG of the ORG ( отряд милиции особого назначения при PERSON внутренних дел PERSON по Чеченской Республике – “ the NORP OMON ” ) and lived in PERSON , together with his parents .

In DATE ORG launched a counter - terrorist operation in GPE .

The facts surrounding PERSON abduction are disputed by the parties .

NORP The applicant did not witness his son 's detention , and the following account is based on eyewitness statements submitted by him , including those of CARDINAL police officers , PERSON and PERSON . , and a civilian , PERSON A.

On TIME CARDINAL DATE the applicant 's son , along with another police officer , NORP , left home to report for duty at the headquarters of the NORP OMON in the town of PERSON . They were both wearing camouflage uniforms and had their ORG officers ' identification cards .

At TIME the applicant 's son and NORP were passing through ORG central market in NORP 's white ORG CARDINAL GPE car . At the same time federal servicemen were carrying out a special ( “ sweeping - up ” ) operation in the vicinity of the marketplace . According to PERSON statement , the military personnel belonged to a “ mobile detachment ” ( мобильный отряд ) stationed in the central part of ORG .

The servicemen blocked NORP 's vehicle and then took PERSON and NORP away in the direction of the headquarters of the federal military detachment Don-CARDINAL . Some time later the soldiers seized the GPE car , which subsequently disappeared . The applicant submitted that the car had later been seen on several occasions at the GPE federal military base .

At TIME the applicant 's son , NORP and several other police officers of NORP origin detained during the operation , including PERSON PERSON . , were put into a GAZ CARDINAL truck with an emblem representing a rampant horse on its doors , which then drove off . According to Mr GPE . , the servicemen who apprehended them were hostile and offensive .

The truck having reached FAC in the centre of ORG , the officer in charge ordered that PERSON and NORP be taken out of the truck . Mr PERSON . saw the applicant 's son and NORP being escorted by CARDINAL federal servicemen towards the former ORG building . The vehicle then drove on .

Several policemen of NORP origin were detained during the “ sweeping - up ” operation at Grozny central market on DATE . Some of them were released DATE , including PERSON . PERSON and NORP disappeared after being apprehended .

According to the applicant , on DATE the central NORP television broadcaster announced that a number of members of illegal armed groups had been apprehended during a “ sweeping - up ” operation in the vicinity of ORG central market . The applicant also enclosed information which he had obtained from the Internet site of ORG to the effect that on DATE the federal troops had carried out a “ sweeping - up ” operation at ORG central market and that they had detained several people , some of them having subsequently disappeared .

The Government relied on a reply from ORG ( Генеральная прокуратура РФ ) to the effect that , on DATE , during daylight hours , “ unidentified men wearing camouflage uniforms and armed with firearms ” had abducted the applicant 's son and several other persons near ORG central market . The bodies of those abducted were subsequently found at various times in PERSON .

They also submitted , with reference to information provided by ORG of ORG ( ORG службы безопасности по PERSON ) , that the federal forces had not conducted any special operations in the vicinity of PERSON central market on CARDINAL or DATE .

According to the applicant , he learnt about his son 's detention from his neighbour DATE . Immediately thereafter , he went to PERSON , to the headquarters of the NORP OMON , and enquired about his son . He was told that neither his son nor NORP had reported for duty .

The applicant and his younger son also went to ORG central market and enquired of those who had been there on DATE about PERSON . In particular , they questioned servicemen from the mobile detachment , showing PERSON photograph ; however , the servicemen refused to talk to them .

NORP The applicant further applied repeatedly to a number of ORG bodies , including prosecutors at various levels , the PERSON military commander 's office ( комендатура г. ORG ) , the regional and federal departments of ORG of the ORG , ORG ( ORG служба безопасности ORG – “ the ORG ” ) , the Special Envoy of the NORP President in GPE for Rights and Freedoms ( ORG представитель ORG по соблюдению прав и свобод человека PERSON ) and the NORP ORG Администрация Президента РФ ) . In his letters to the authorities the applicant referred to the circumstances of his son 's detention and asked for assistance and details of the investigation . In most cases he received formal responses informing him that his requests had been forwarded to various prosecutors .

On DATE the ORG prosecutor 's office ( прокуратура г. ORG ) commenced a criminal investigation into the disappearance of the applicant 's son and NORP under LAW of LAW Criminal Code ( kidnapping of CARDINAL or more persons by a group using firearms ) . The file was given the number DATE .

On DATE the ORG prosecutor 's office joined the aforementioned criminal case with several other cases opened in connection with abductions near ORG central market on DATE and the subsequent disappearance of a number of persons , on the ground that all those offences had been committed by the same persons . The case file was assigned DATE .

On DATE ORG of the ORG forwarded the applicant 's letter to the military prosecutor of military unit no . DATE ( военная прокуратура DATE ) .

On DATE the ORG prosecutor 's office suspended the investigation in criminal case no . CARDINAL on account of the failure to identify those responsible .

On DATE the head of the special police unit at ORG of the ORG issued the applicant with a certificate confirming that ORG had been an officer of that unit since DATE and that he had disappeared on DATE in the vicinity of ORG central market .

By a letter of CARDINAL DATE the military prosecutor of military unit DATE returned the applications by the mothers of PERSON and NORP to the ORG prosecutor 's office . The letter stated that the applications in question had been forwarded to the military prosecutor of military unit no . DATE by mistake , since no involvement of military personnel in the alleged offence had been established .

On DATE the ORG prosecutor 's office resumed the investigation in criminal case no . CARDINAL .

It appears that at some point in DATE a new mobile detachment replaced the CARDINAL stationed in the central part of ORG .

On DATE , during the inspection of the area for which they were responsible , the servicemen of the mobile detachment found CARDINAL corpses bearing signs of having met a violent death in the basement of ORG in FAC . The servicemen notified a district office of ORG and the PERSON prosecutor 's office . It appears that a forensic examination of the corpses was conducted DATE .

On DATE the bodies were identified by relatives as those of PERSON and NORP On DATE the applicant buried his son .

According to the applicant , his son 's body was found QUANTITY away from the place where he had last been seen alive on DATE . The applicant further submitted that both on DATE and during the period thereafter the area in question had been under the firm control of the federal mobile detachment . He also claimed that the area had been tightly secured by the federal forces , fenced with barbed wire and watchtowers , and inaccessible to civilians , and that even the police and officials of the prosecutor 's office had been required to obtain special leave to have access to the area on DATE . The applicant submitted a hand - drawn map of the area . In the ORG 's submission , “ it was not established during the investigation that the area where the dead bodies of the applicant 's son and NORP had been found had been secured and that there had been no free access there ” .

On DATE the ORG of GPE ( Республиканское бюро судмедэкспертизы ) issued a medical death certificate ( врачебное свидетельство о смерти ) in respect of GPE , born in DATE . The document stated that the applicant 's son had died on DATE as a result of gunshot wounds .

On DATE the civil registry office of LOC of PERSON certified the death of the applicant 's son . The date and the place of death were recorded as DATE , ORG .

On DATE a military expert medical commission of ORG of the ORG ( военно-врачебная комиссия УВД МВД РФ по PERSON ) issued a certificate stating that PERSON , an officer of the special police unit of ORG of the ORG , had died on DATE as a result of a “ gunshot wound to the head and fracture of the cranial bones ” .

On DATE the commander of the NORP OMON drew up a report on the result of the internal investigation into the death of their officer , PERSON . The report stated that on DATE PERSON and NORP had left for LOC of PERSON to perform an operational task and had gone missing during a special “ sweeping - up ” operation in the vicinity of PERSON central market . On DATE their bodies , bearing signs of a violent death , had been found in the basement of CARDINAL of the destroyed buildings in FAC .

According to the Government , at some point the applicant and his wife had received compensation in connection with the death of their son , a police officer on duty . Under domestic law such compensation was payable for the loss of a breadwinner and comprised for each of them insurance payments of MONEY ( RUB – MONEY ( ORG ) ) , a lump - sum payment of RUB PERSON ( approximately ORG CARDINAL ) and a pension in the amount of RUB CARDINAL ( approximately EUR CARDINAL ) .

In a letter of CARDINAL DATE the ORG prosecutor 's office informed the applicant , in reply to a query from him , that on DATE the file in criminal case no . CARDINAL concerning PERSON disappearance and the subsequent discovery of his body had been sent to the military prosecutor of military unit no . DATE for further investigation .

On DATE the ORG prosecutor 's office informed the applicant that the criminal proceedings in case no . CARDINAL had been suspended on DATE on the ground of failure to identify those responsible .

On DATE the NORP ORG forwarded the applicant 's complaint to ORG .

In a letter of CARDINAL DATE ORG of ORG ( Управление Генеральной Прокуратуры РФ в Южном федеральном округе ) informed the applicant that his complaints concerning the ineffective investigation into the abduction of his son had been forwarded to the prosecutor 's office of GPE ( прокуратура Чеченской PERSON ) .

On DATE ORG on Rights and Freedoms ( PERSON по правам человека при PERSON ) forwarded the applicant 's complaint concerning the ineffective investigation into the killing of his son to ORG for examination . The latter , in its turn , forwarded the complaint to the prosecutor 's office of GPE on DATE .

By a letter of DATE the prosecutor 's office of GPE requested the PERSON prosecutor 's office to send it the file in criminal case no . CARDINAL so as to enable it to investigate the applicant 's complaints relating to the ineffective investigation into his son 's death .

On DATE ORG of the Interior informed the applicant that his complaint had been sent to the prosecutor 's office of GPE for examination .

On DATE the prosecutor 's office of GPE forwarded case file no . CARDINAL , comprising CARDINAL pages , to the ORG prosecutor 's office for further investigation . The latter reopened the proceedings instituted in the above - mentioned criminal case on DATE and then adjourned them DATE on the ground that it was impossible to identify the perpetrators . At some point the case file was referred to the prosecutor 's office of LOC of PERSON ( прокуратура Заводского района г. Грозного – “ the LOC prosecutor 's office ” ) .

DATE . On DATE the prosecutor 's office of GPE referred the applicant 's complaint to the PERSON prosecutor 's office .

On DATE the ORG prosecutor 's office informed the applicant that the criminal proceedings instituted in connection with the abduction and killing of his son had been suspended , as it was impossible to identify the alleged perpetrators , and that all possible steps to that effect had been taken .

It does not appear that any investigative activity took place DATE ; the applicant 's attempts to have the criminal proceedings resumed proved unsuccessful .

On DATE the present application was communicated to ORG .

On DATE ORG resumed the proceedings in criminal case no . CARDINAL .

By a decision of CARDINAL DATE the investigator in charge , referring to the fact that , during the examination of the materials in case no . DATE concerning the abduction of the applicant 's son and other persons , he had discovered that the bodies of the applicant 's son and NORP , bearing signs of having met a violent death , had been found on DATE , ordered the institution of criminal proceedings in relation to the matter under LAW ( a ) , ( c ) and ( g ) of LAW ( murder of CARDINAL or more persons committed by a group and involving the act of kidnapping ) .

On DATE the investigation in case no . CARDINAL was suspended , on the ground that it was impossible to identify those responsible .

On DATE that decision was set aside and the criminal proceedings were reopened . The investigation was then stayed on DATE and CARDINAL DATE and resumed on DATE and DATE respectively .

According to the applicant , in DATE he was summoned to ORG and informed that the investigation had been resumed . The applicant was not given access to the case file , let alone allowed to make copies of any documents .

Referring to the information provided by ORG , the Government submitted that , on DATE , the authorities had commenced an investigation into the abduction of the applicant 's son and NORP and subsequently , following the discovery of their bodies , into their murder and the theft of NORP 's car . The investigation had been suspended and resumed on several occasions , but to date had failed to identify the alleged perpetrators . The investigation had been reopened most recently on DATE and was being supervised by ORG . According to the Government , the applicant was duly informed about all decisions taken during the investigation .

The Government further submitted that the applicant had been questioned on DATE and DATE and on DATE and that his wife , PERSON mother , had been questioned on DATE . According to the Government , the applicant had never made any statements concerning the fact that NORP 's vehicle , which had disappeared on DATE , had later been seen at the GPE federal military base . The applicant and his wife had been granted the status of victims on CARDINAL and DATE respectively and on DATE had been recognised as civil parties seeking damages in the criminal proceedings . Relatives of other persons kidnapped on CARDINAL DATE had also been questioned .

The investigating authorities had also questioned QUANTITY persons , including Mr PERSON . , all of whom , in the ORG 's words , “ were apprehended by the federal forces on DATE during a special operation and were later released ” , as well as CARDINAL police officers , including PERSON , and the servicemen who had found the bodies of the applicant 's son and D. The Government did not specify on what date witness statements had been obtained and submitted that all the witnesses concerned had testified that they had no information regarding the perpetrators of the offences in question .

They stated next that on DATE the corpses of PERSON and NORP , found on DATE , had been examined by forensic medical experts , who had drawn up a report on CARDINAL DATE stating that the death of the aforementioned CARDINAL persons could have been caused by injuries sustained as a result of firearms shots . The Government stated that the investigating authorities had sent a number of queries to various ORG bodies on DATE , DATE , DATE , CARDINAL DATE and CARDINAL DATE , and DATE . In their submission , on DATE the investigators had sent a request to the ORG prosecutor 's office to question the officers of the GPE special police unit who had served in GPE CARDINAL DATE ( rather than DATE ) . It is unclear whether any reply was received to this query . On DATE and CARDINAL DATE the investigators had requested the town and district offices of the interior of GPE to carry out a search so as to establish those responsible . None of the necessary information on the subject had been received , according to the Government , apart from the reply from ORG of ORG to the effect that it had no information about the alleged perpetrators . According to the Government , the authorities had also undertaken other investigative measures ; however , they did not specify what those measures had been .

In DATE , when the application was communicated to them , the Government were invited to produce a copy of the investigation file in criminal case no . CARDINAL opened into the abduction and murder of PERSON . Relying on the information obtained from ORG , the ORG replied that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning the witnesses . They , however , agreed to produce several documents , “ disclosure of which did not contravene the requirements of LAW ” . In DATE the ORG reiterated its request and suggested that Rule CARDINAL § CARDINAL of ORG be applied . In reply , the Government submitted a few additional documents but refused to produce the entire investigation file for the aforementioned reasons .

On DATE the application was declared admissible . At that stage the ORG once again invited the ORG to submit the investigation file and to provide information concerning the progress of the investigation . In DATE the Government informed ORG latest dates on which the investigation had been suspended and reopened and produced several documents pertaining to the period after DATE . Overall , the Government produced CARDINAL documents running to CARDINAL pages from the case file , which , as could be ascertained from the page numbering , comprised CARDINAL pages . The documents included :

( a ) copies of the reports by the CARDINAL servicemen who had found the bodies of the applicant 's son and NORP on DATE ;

( b ) numerous procedural decisions suspending and reopening the investigation in case no . CARDINAL ;

( c ) a number of investigators ' decisions taking up case no . CARDINAL ;

( d ) decisions granting the status of victims in case no . CARDINAL to relatives of some of the persons missing since DATE , but not to the applicant ;

( e ) NORP letters dated DATE notifying the applicant and NORP 's mother of the transfer of the case to ORG ;

( f ) numerous letters informing the applicant and relatives of other victims of the suspension and reopening of the criminal proceedings in case no . CARDINAL .

The Government did not furnish the ORG with any other documents from the case file .

The Government enclosed a number of letters from various higher courts in GPE , stating that the applicant had never lodged any complaints about the allegedly unlawful detention of his son or challenged in court any actions or omissions of the investigating or other law - enforcement authorities .

The Government also produced copies of domestic court decisions taken in unrelated sets of civil or criminal proceedings . These included CARDINAL firstinstance judgments by which federal servicemen , privates or junior officers had been convicted of criminal offences committed in GPE or GPE ; a first - instance judgment and appeal decision awarding compensation for damage to property inflicted by servicemen in ORG ; a first - instance judgment and appeal decision awarding damages to the first applicant in GPE and GPE v. GPE ( nos . CARDINAL and QUANTITY , judgment of DATE ) in connection with the death of his relatives in GPE ; and a first - instance judgment and appeal decision awarding compensation for omissions on the part of the investigating authorities during the investigation into a person 's abduction in GPE , the person in question having subsequently been released .

Until DATE criminal - law matters were governed by LAW RSFSR . On DATE the old Code was replaced by LAW .

DATE . Article CARDINAL of the new Code provides that the decision of an investigator or prosecutor to dispense with criminal proceedings or to terminate criminal proceedings , and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens ' access to justice may be appealed against to a district court , which is empowered to check the lawfulness and grounds of the impugned decisions .

Article CARDINAL of the new Code enshrines the rule that data from the preliminary investigation may not be disclosed . Paragraph CARDINAL of the same LAW provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission .


Elisabeth Palm;Gaukur Jörundsson;Nicolas Bratza

The applicants are NORP national , born in DATE and living in GPE . She is represented before the ORG by Mr PERSON , may be summarised as follows .

A.

The applicant commenced a long - term relationship with PERSON in DATE . The couple never married but lived together until PERSON died , in DATE , aged DATE , from an accident at work . The couple had CARDINAL children , PERSON born on DATE , PERSON born on DATE and PERSON born on CARDINAL DATE .

PERSON worked as a self - employed builder and paid full social security and national insurance contributions as a self - employed earner . His contribution record was such that had he been married to the applicant , she would have been entitled to social security benefits as his widow on his death .

On DATE the applicant submitted a claim for widow ’s benefits ( widow ’s payment and widowed mother ’s allowance ) to ORG . Her claim was rejected on DATE on the basis that widow ’s benefits could only be paid where the claimant had been married to the person who had died . The applicant appealed the decision on DATE , arguing a breach of LAW of LAW ( “ the Convention ” ) . ORG rejected her appeal , stating that an individual could not rely on the LAW in domestic courts . The applicant was granted leave to appeal to a ORG Commissioner on DATE . On DATE Commissioner PERSON dismissed her appeal , stating that she had no remedy under domestic law or the Convention in a domestic court . The applicant applied for leave to appeal to ORG on DATE and was refused leave on DATE .

The applicant is currently working full - time . She receives child benefit for her CARDINAL children amounting to ORG DATE . She receives no other social security benefits although she did receive a lump sum pension from a private insurance policy taken out by PERSON during his life . If the applicant were entitled to receive social security benefits equivalent to those to which a married woman in similar circumstances to herself would be entitled , she would be GBP CARDINAL per week better off . She would also have received a CARDINAL - off Widow ’s Payment of GBP CARDINAL .

B. Relevant domestic law

Under GPE law , certain social security benefits , including ORG , Widowed Mother ’s Allowance , and ORG , are paid for out of ORG . By LAW , the funds required for paying such benefits are to be provided by means of contributions payable to the Secretary of ORG by earners , employers and others , together with certain additions made to the ORG by ORG . It makes no difference to the contributions payable whether someone is single or married .

Widow ’s Payment

Under LAW of the DATE Act , a woman who has been widowed is entitled to a widow ’s payment ( currently a lump sum payment of GBP CARDINAL ) if :

she is under pensionable age at the time when her husband died , or he was not then entitled to a Category A retirement pension ;

( ii ) her husband satisfied certain specified social security contribution conditions set out in a Schedule to the DATE Act . of LAW No . CARDINAL .

Widowed Mother ’s ORG

Under LAW of the DATE Act , in so far as relevant , a woman who has been widowed ( and who has not remarried ) is entitled to a mother ’s allowance on certain conditions , the following being the relevant conditions to the circumstance of the present case :

( i ) her husband satisfied the contribution conditions set out in a Schedule to the LAW ; and

( ii ) she is entitled to receive child benefit in relation to a son or daughter of herself and her late husband .

The Widowed Mother ’s ORG currently amounts to GBP CARDINAL per week , with an extra GBP DATE in respect of the eldest eligible child , and a further GBP DATE in respect of other children .

Widow ’s Pension

Under LAW of the DATE Act , a woman who has been widowed ( and who is not remarried ) is entitled to a widow ’s pension if :

( ii ) at the date of her husband ’s death she was over DATE but under DATE ; or

( iii ) she ceased to be entitled to a widowed mother ’s allowance at the time when she was over DATE but under DATE .

If the applicant had been married to PERSON , she could look forward to entitlement to a Widow ’s Pension in the future , when she would no longer be entitled to the Widowed Mother ’s Allowance .