Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant was born in GPE in DATE . According to the relevant police reports , the applicant was slightly inebriated when he was arrested on DATE and had physically resisted police officers . As a result , he had sustained slightly swollen lips and a small bruise on his forehead .

Following his arrest the applicant underwent an external visual examination upon his being taken to the temporary detention centre . A report drawn up thereafter by a doctor on duty recorded a large bruise on the left part of the applicant ’s forehead , a large bruise on the right temple , a large bruise near the left eye and cheekbone , a bruise and evidence of an injury that had bled on his lips , and large bruises on his neck and all over his back ( the report of CARDINAL DATE ) .

On DATE , the applicant was charged with the offence of resisting police officers with the intention of obstructing them in the course of their duties , committed as part of a group in a premeditated manner ( Article CARDINAL § CARDINAL of LAW of GPE ) . According to the decision to bring charges , CARDINAL police officers , GPE and GPE , had seen a young man running down the street at around TIME with a mobile phone in his hand , being “ chased ” by QUANTITY women ( who turned out to be his wife and a friend ) . Before the young man could get into a car parked at the end of the road , the QUANTITY police officers had stopped and questioned him to find out why he was running and to whom the mobile phone belonged . At that point the applicant had got out of the car and , together with another young man , PERSON , his friend , had begun to verbally and physically attack the police officers . The police had been unable to calm them down and the applicant and his friend had torn the police ORG shirts and jumpers during the struggle . The police had called for backup and , after several colleagues had arrived as reinforcements , had managed to arrest the offenders . Once placed in custody in a temporary detention centre , the offenders had continued to verbally and physically attack the police . In particular , the applicant had delivered a punch to the left eye of a police officer , GPE . , who had accompanied him to the investigation room to take care of some procedural matters .

According to CARDINAL medical reports concerning the examination of the QUANTITY police officers who had allegedly been attacked by the applicant and his friend PERSON . had a closed head injury and a bruise on his left eye , PERSON had a closed head injury and a graze on his right knee , and ORG had a superficial lesion on his lips and cheek . All CARDINAL police officers were discharged from the hospital on DATE .

On DATE the investigator , with the consent of the supervising prosecutor , sought an order from ORG that the applicant be remanded in custody pending trial . The reasons given for the request were the risks that the applicant might abscond and that he might impede the investigation .

On DATE the ORG , refusing the applicant ’s application for a non - custodial measure , ordered his pre - trial detention for DATE . Having reviewed the criminal case materials and heard the parties’ oral pleadings , the court confirmed the existence of a reasonable suspicion that the offence had been committed . The imposition of pretrial detention was found to be further justified by the assumption that if the applicant was freed he might influence the eyewitnesses , which would prevent the truth of the matter from being established . Moreover , because of the severity of the penalty for such a serious crime , the applicant might evade trial .

Photographs of the applicant taken at the hearing on DATE showed bruising around his eyes and an injury to the left hand side of his forehead . On the same date he was transferred to GPE no.CARDINAL Prison , where following his external inspection by a doctor on duty , a medical certificate was drawn up reporting an injury to the left hand side of the applicant ’s forehead ( medical certificate of DATE ) . According to the certificate , the injury DATE which the applicant claimed to have sustained before his arrest DATE was healing .

On DATE the investigator responsible for the case rejected the defence ’s application to have a medical examination carried out . According to the investigator , it had not been established that the applicant had been injured during his arrest , as the medical certificate issued by the doctor in GPE no . CARDINAL Prison showed that the injury had predated his arrest . Moreover , the investigator considered that , had the applicant been injured during his arrest , he would have raised the complaint at the hearing of DATE .

On DATE , DATE , the applicant appealed against the detention order , claiming , inter alia , that the assumptions that he would abscond from the trial and influence the investigation were wholly unsubstantiated .

On DATE , whilst holding an oral hearing , ORG ( “ the Court of Appeal ” ) dismissed the applicant ’s appeal , concluding that his remand in custody was necessary in view of the seriousness of the crime and the facts and arguments contained in the court decision of DATE . With regard to the defence ’s complaint that the authorities had refused to allow the applicant to undergo a medical examination , ORG noted that the defence had never requested such an examination under LAW ( g ) of LAW ( “ the ORG ” ) .

On DATE the applicant appealed against the refusal to allow a medical examination , complaining that the investigator had been acting as a medical expert in determining when he might have received the various injuries . In his opinion , the refusal to allow a medical examination had amounted to a violation of his rights under LAW § CARDINAL ( g ) of the ORG .

On DATE a judge ordered the investigating authorities to have the applicant examined by a medical expert . The examination was carried out DATE and DATE . The medical expert had a copy of the medical report of CARDINAL DATE . In addition he himself noticed a scar measuring QUANTITY by QUANTITY on the right temple , corresponding to an injury classified as slight , and caused by a hard blunt object . The expert concluded that all the applicant ’s injuries could possibly date back to DATE of the arrest , as the applicant was contending .

On DATE , the applicant ’s detention had been extended by DATE . This decision had been upheld on DATE by ORG which , in a separate decision , drew the investigator ’s attention to the fact that no investigative actions had been taken for DATE and that the proceedings had therefore been prolonged without reason .

On DATE the applicant was allegedly again beaten , this incident occurring on the premises of the court of first instance , before which he had been brought for trial .

On DATE the applicant was convicted of having committed the offence defined in LAW and sentenced to DATE and CARDINAL months’ imprisonment . Before the court , GPE confirmed that he had been hit by the applicant while the other young man had insulted him . Around CARDINAL people had come out of a nearby bar to back up the young men and insult the police officers . It had therefore been difficult to arrest the offenders and the officers had had to call for backup . Once the QUANTITY men had been arrested , GPE and his colleague PERSON had gone to the hospital to be treated . Their clothes had been torn . According to GPE , the applicant had had blood on his lip and the possibility that he had sustained other injuries to his body could not be excluded .

G.A. claimed that he had been hit by both young men and that the applicant had already had an injury to his face prior to the arrest .

A.Ts . submitted that he had arrived at the scene when the arrest operation was almost over and had seen that the CARDINAL young men had been taken to the temporary detention centre . He had encountered the applicant in the investigation room , where the latter had punched him in the eye . PERSON . stated that he had not physically attacked the applicant .

The applicant ’s friend who , according to the police officers , had been running down the street with a mobile phone , stated that he had been drunk , had felt unwell and had been walking quickly down the street , followed by his wife and a friend . When the police had stopped him to find out who the telephone belonged to , he had handed the phone to his wife and had run into the bushes because he had felt sick . On his return , he had seen that the CARDINAL women were screaming and that the police were trying to hit the applicant and another of his friends , PERSON had helped the applicant , who had been on the ground , to get up . He claimed that the police ORG clothes had not been ripped and that his CARDINAL friends had not had any visible injuries on their bodies before being arrested .

CARDINAL other policemen who had arrived as backup stated in evidence that they had seen the CARDINAL young men beating PERSON , who had fallen to the ground . The offenders had been swearing and refusing to get into the police car .

NORP The applicant lodged an appeal against conviction , complaining that the court had agreed with the police officers’ contention that they had been beaten , without examining his complaint that he had been mistreated by those same police officers during his arrest , as well as later on in the police station . He also alleged that during his arrest he had fallen to the ground and had been kicked in the head , stomach and back . His friend had helped him up . He alleged that in the temporary detention centre a glass had been smashed over his head and the police had beaten him violently . During DATE he had not slept , had suffered from headaches and had been behaving strangely . The applicant further complained that the first - instance court had ignored the medical report which had proved that he had been beaten . Requiring medical care as a result of the treatment he had endured , the applicant submitted that he had been the victim of a violation of LAW and requested that ORG attribute the same importance to that aspect of the case as to the other facts .

On DATE ORG held that , in the light of the facts established by the first - instance court , it could not be found that the applicant had been subjected to ill - treatment at the hands of the police . The first - instance judgment was upheld .

On DATE an appeal on points of law lodged by the applicant , in which he reiterated his complaint under LAW , was declared inadmissible by ORG of GPE . This decision was served on the applicant on DATE .

According to medical certificates issued by different psychiatric clinics in GPE , they had never treated the applicant before his arrest .

Shortly after his arrest , on DATE the applicant had to be placed in the psychiatric ward of the prison hospital because of his psychiatric instability . On DATE he was examined by experts from ORG ( “ FAC ” ) . The preliminary results of the examination showed that the applicant was suffering from a head injury and concussion and was delirious . The experts also noted , on the basis of the applicant ’s account , that the latter had suffered from head injuries several times in the past and that he had had a history of aggressive behaviour related to inebriation . The experts recommended that he undergo an in - patient psychiatric examination and a tomography scan of his brain and that he receive treatment with drugs and appropriate medical supervision .

On DATE the applicant ’s lawyer lodged a request with ORG for a psychiatric examination of his client to be carried out in order to determine whether he required to be admitted to a specialised institution , whether his condition was a result of the way he had been treated during his arrest and whether he could be held accountable for his actions at the time of the offence of which he was accused .

On DATE ORG ordered an out - patient psychiatric examination , which resulted in a medical report of DATE . According to the report , the applicant was not suffering from any chronic psychiatric illness , temporary psychological disorder , or mental illness . He was suffering from mild depression and was responsible for his actions .

On DATE and DATE the director of ORG approached the prison authorities , drawing their attention to the applicant ’s psychiatric problems and the suicidal tendencies which his sister and the chaplain had reported to her . She requested that the applicant be kept in the prison hospital in order to receive appropriate treatment and to undergo an in - patient psychiatric examination .

The case file shows that the applicant was kept in the psychiatric ward of the prison hospital until DATE . Between DATE and CARDINAL DATE , he remained in the same institution , but on a different ward . On the latter date he was sent to GPE no . CARDINAL Prison , and was once again admitted to the psychiatric ward of the prison hospital on DATE . On DATE he was sent to ORG no . CARDINAL Prison and placed in solitary confinement in the hospital wing .

On DATE , an in - patient psychiatric examination of the applicant took place . According to the report , the applicant had not been mentally ill before or at the time of the acts with which he was charged . He had therefore been responsible for his actions . However , at the time of the examination the applicant was suffering from a temporary psychological disorder in the form of brief reactive psychosis . He could not control his actions and needed intensive compulsory psychiatric treatment under increased medical supervision . On DATE ORG decided to order the applicant ’s admission to ORG , where he remained until his release . As it appears from the relevant medical files , the applicant received various treatments there and was monitored by medical specialists .

According to a report by the experts from the ORG dated DATE containing the results of their monitoring of the applicant DATE and DATE , the applicant ’s psychotic state had been triggered DATE after his arrest and he had been cured only after appropriate treatment had been administered by the doctors at the clinic in PERSON and by other doctors during DATE following his release .

On DATE , in response to a complaint filed by the applicant ’s lawyer , the GPE prosecuting authorities decided to separate the aspects of the case potentially relating to the alleged abuse of authority by the police officers during the arrest ( LAW ( b ) of LAW ) from the criminal case brought against the applicant and his friend . A separate investigation was therefore opened in that regard .

When questioned as a witness during that investigation on DATE , the applicant affirmed that he had been subjected to ill - treatment during his arrest . Notably , he alleged that he had first been pushed by the police officers , as a result of which he had fallen to the ground , and then the police officers had kicked him and beaten him with truncheons , causing particularly serious blows to his head . He also explained that he had been beaten at the temporary detention centre by CARDINAL or QUANTITY police officers who had also insulted him . He had fought back in order to defend himself . When he had been in GPE no . CARDINAL Prison , a visual medical examination had been carried out , during which he had deliberately misled the doctor by telling him that he had suffered the injury to his forehead prior to his arrest . He had in fact been afraid of being subjected to further ill - treatment .

The police officers who had stopped the applicant ’s friend as he ran down the road with his phone and the officers who had arrived on the scene later to help with the arrest were also questioned . Their statements were the same as those they had made in the criminal case against the applicant . GPE added that force had been used during the arrest and that the applicant had shown signs of it on his body . However , he claimed that the force used had been proportionate , in view of the fact that the applicant had been physically resisting the police officers .

A.Ts . also confirmed his previous statement ( see paragraph CARDINAL above ) . He added that his injured eye had bled and that since then he had almost completely lost his sight . The police officers who had been present in the temporary detention centre confirmed that GPE . ’s eye had been injured by the applicant and also explained that breakable objects were not allowed inside the investigation room of the detention centre , which meant that the applicant could not have had a glass smashed over his head .

The applicant ’s friend , who was arrested at the same time , confirmed that the applicant had been ill - treated during the arrest . His wife , who had been present at the scene , stated in her deposition that all she had seen was a quarrel , which had turned into a fight . Another of their friends stated in her deposition that the applicant had insulted the police officers first . However , she had not seen who had dealt the first blow .

On DATE the applicant ’s lawyer lodged a complaint with ORG about the refusal of ORG to grant his client the status of civil party in the new case and the fact that , despite the requirements of LAW , the investigation was not moving forward .

On DATE the prosecuting authorities , relying on the witness depositions and the medical examinations carried out on the police officers , decided to discontinue the proceedings . They considered that the police had acted in accordance with the law during the applicant ’s arrest and that there was no evidence to substantiate the applicant ’s allegations of ill - treatment during his arrest and at the temporary detention centre .

The applicant lodged an appeal against that decision , arguing that no explanation had been provided for the injuries and the health problems he had experienced following his arrest . He repeated that those problems were the direct consequence of the ill - treatment he had suffered at the hands of the police , who had abused their authority .

On DATE the Tbilisi ORG examined the case without the participation of the parties , relying solely on the evidence in the case file . It upheld the decision of DATE to discontinue the proceedings on the grounds that the applicant had not raised the complaint of illtreatment either during questioning when he had been charged or when he had been questioned as an accused , despite being assisted by a lawyer during all the procedural steps concerning him . Furthermore , he had not availed himself of his right to request a medical examination or a medical opinion . ORG concluded that , at the time of the applicant ’s arrest , the police officers had not committed any acts which were contrary to the law and that the ill - treatment of the applicant at the police station had not been proved .

On DATE ORG , ruling without the parties present and as the court of last instance , held that the previous decisions were well - founded .

On DATE TIME , representatives of ORG ( “ PDO ” ) visited the applicant in the prison hospital and found that he had traces of blows and injuries to the head , loin and back . The applicant explained that , during TIME DATE , he had been beaten by the deputy director of the prison hospital , PERSON , and CARDINAL other members of the prison hospital staff , among whom he could identify ORG and NORP He alleged that he had been kicked , insulted and spat on . The applicant , who stated that he had insulted his attackers in return , had been placed in solitary confinement where , venting his aggression , he had smashed up everything . At the time of the representatives’ visit , he claimed to be hungry and complained of the prison authorities’ refusal to allow him to eat , drink or go to the toilet . He asked the representatives to help him obtain a transfer to a safe place and said that he feared being killed .

On DATE ORG commenced an investigation under LAW ( intentionally causing less serious harm to the health of another ) .

When questioned as a witness by an investigator on CARDINAL DATE , the applicant changed his initial testimony . He asserted that he could not recall the details of the incident of DATE , as he had been taking psychotropic medication at the material time . All he could remember was that he had not had a fight with the representatives of the prison administration . He further claimed that he had frequent quarrels with other prisoners , whom he could not name because of the risk posed to his life .

The deputy director of the prison hospital , PERSON , implicated by the applicant in his initial statement as having been involved in his ill - treatment , maintained that a fight had broken out between the applicant and another prisoner , PERSON , in the prison hospital yard on DATE and that prison officers had had to intervene in order to stop it . He claimed that he had not witnessed the incident personally and had only arrived at the prison hospital yard after the fight was over . The applicant had then been placed in solitary confinement . According to PERSON , neither he nor any of the prison officers had either psychically or verbally insulted the applicant during this incident .

The prison officers who had been in the prison hospital yard during the incident were also questioned . They maintained that prisoner PERSON and the applicant , who they asserted was always aggressive towards prison hospital staff and other prisoners , had had a fight on DATE and that due to the applicant ’s aggressive behaviour he had been subsequently placed in solitary confinement . They claimed that on DATE the applicant had burnt his shirt , smashed up the cell and continued verbally assaulting prison officers . They also stated that the incident had lasted for a short period of time and that they had noticed no injuries on either PERSON or the applicant afterwards .

PERSON confirmed in a statement that on DATE at TIME while exercising in the prison hospital courtyard he had had an argument with the applicant and had kicked him once , after which prison officers had intervened and restrained them . PERSON noted that neither the prison officers nor the prisoners who were in the prison hospital courtyard during the incident had engaged in the fighting or had assaulted the applicant .

Another CARDINAL prisoners , eyewitnesses to the incident , were additionally questioned in the course of the investigation . They confirmed that a fight had broken out between the applicant and PERSON on DATE and that the prison officers had only intervened to stop it .

An independent medical report drawn up on DATE at the request of the defence found that the applicant had CARDINAL haematomas on his back , measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY , and QUANTITY by QUANTITY haematoma in the area of his loin . These injuries had been inflicted by a hard , blunt object and could have been inflicted at the time and in the circumstances referred to in the report of the visit of the ORG representatives .

On DATE the prosecutor discontinued the proceedings for lack of evidence of a crime . Whilst omitting the medical evidence concerning the applicant ’s injuries , he based his findings primarily on the deposition of the applicant given to the investigator on CARDINAL DATE , as well as on the statements of the Governor of the prison hospital , his CARDINAL deputies , the prison officers and the applicant ’s fellow prisoners questioned in the course of the investigation . The prosecutor concluded that it could not be established that the applicant had been physically assaulted by the staff of the prison hospital .

LAW ( a ) of the ORG stated that a preliminary investigation shall be discontinued if the act or omission concerned is not an offence under LAW .

Pursuant to LAW ORG , whilst criminal investigations were normally carried out by ORG , an investigation into an offence implicating a police officer , an investigator , or a senior military or special law - enforcement officer was to be entrusted to ORG .

The other relevant provisions of the ORG read as follows :

“ CARDINAL . A suspect has the right ...

( f ) when detained or issued with a decision on his / her recognition as a suspect , to request a free medical examination and relevant written conclusion , and to call for a forensic medical examination , which request should be immediately met . A refusal to order [ such ] an examination is subject to appeal in the district ( city ) court ... , which shall deal with the matter within TIME . ”

“ CARDINAL . A measure of restraint shall be applied to ensure that the accused can not avoid the investigation and trial , that his further criminal activity is prevented , that he can not interfere with the establishment of the truth in a given criminal case , or [ in order ] that a court ’s verdict is implemented . Pre - trial detention or [ any ] other measure of restraint shall not be imposed on the accused if a less restrictive measure meets the objectives provided for in this paragraph .

The grounds for the imposition of a measure of restraint are a reasonable suspicion that the person might abscond or fail to appear in court , destroy evidence , threaten the parties to the proceedings or commit a new crime . ...

A court shall impose pre - trial detention as a measure of restraint only when the objectives set out in the first paragraph of this Article can not possibly be achieved by applying a less restrictive measure . ”

“ Upon receipt of information concerning the commission of a crime , the investigator and the public prosecutor , within the limits of their powers , shall open an investigation . ... ”

“ CARDINAL . The preliminary investigation shall be opened on the basis of the information concerning the commission of a crime brought to the attention of the investigator or the public prosecutor by a natural person or other legal entity ... reported in the media , or brought to light during the investigation of a case by the authority in charge of the investigation ... ”

The relevant parts of the report read as follows :

“ ... Ill - treatment of detainees has increased since DATE . Some detainees reported being beaten regularly and severely or being subject to other ill - treatment and inhuman punishment . In some cases , the beatings and other inhuman treatment constituted torture . There is widespread impunity for such ill - treatment . Detainees have no access to an effective complaint mechanism and in some facilities have limited ability to communicate confidentially with their lawyers . Investigations into abuse are rare and those responsible for abuse are seldom held accountable .

There are numerous obstacles to effective investigation and prosecution of perpetrators of abuse against detainees , including direct interference by prison authorities and the lack of identifying insignia among prison staff and special forces . ...

The lack of investigations into the deaths , injuries , and other ill - treatment and possible torture inflicted by law enforcement agents acting in the NORP penitentiary facilities in DATE , also suggests that the government is not fully committed to guaranteeing justice for victims and eliminating the climate of impunity . ”

“ ... In DATE the large majority of injuries alleged to have been sustained through police ill - treatment were reportedly inflicted during the arrest . In the same period ORG also continued to receive information about some cases in which detainees were reportedly tortured or otherwise ill - treated in cars while being taken to a place of detention , in police stations , and in ORG . ...

Impunity for torture or other ill - treatment is still a big problem . ORG is concerned that procurators do not open investigations into all potential torture or other ill - treatment cases in a systematic manner . In CARDINAL of cases where the procuracy has opened investigations the perpetrators have not been brought to justice . Investigations into allegations of torture or other ill - treatment have often not been conducted in a prompt , impartial and independent manner . ”

“ CARDINAL . Ill - treatment

In general , the ORG ’s delegation gained the impression that the situation as regards the treatment of persons detained by the police in GPE had considerably improved since the ORG ’s second periodic visit . The great majority of the persons interviewed during the DATE visit , who were or had recently been in police custody , indicated that they had been treated in a correct manner . The delegation received only a few isolated allegations of physical ill - treatment , all but CARDINAL of which referred to the excessive use of force at the time of apprehension ( i.e. kicks and punches after the person concerned had been brought under control ) . ...

... [ T]he ORG reiterates its long - standing recommendation that whenever persons brought before a judge at the end of police custody allege ill - treatment by the police , the judge record the allegations in writing , order immediately a forensic medical examination and take the necessary steps to ensure that the allegations are properly investigated . Such an approach should be followed whether or not the person concerned bears visible external injuries . Further , even in the absence of an express allegation of ill - treatment , the judge should request a forensic medical examination whenever there are other grounds ( e.g. visible injuries , a person ’s general appearance or demeanour ) to believe that ill - treatment may have occurred . If necessary , the relevant legal provisions should be amended . ”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violations of Art. 2;No violation of Art. 3;No separate issue under Art. 3;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2 and 13+3;No violation of Art. 13+5;No failure to comply with Art. 38-1-a;No separate issue under Art. 34;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The submissions by the parties are summarised below in Part A. The documents submitted by the parties , notably the criminal investigation file provided by the ORG , are summarised below in Part B.

The applicant lives in LOC , a town QUANTITY to the south - east of Grozny , in her own house at CARDINAL FAC . Her son PERSON , born in DATE , lived at the same address , together with his wife and CARDINAL minor children . Their other relatives also lived at the same address .

DATE the applicant 's son PERSON was the speaker of ORG ( “ the Parliament of GPE of GPE ” ) . The applicant submitted that in DATE , following the resumption of hostilities , her son had not taken part in them and had tried to organise peace talks .

On DATE PERSON was at home with the applicant , who had been sick . At TIME several armoured personnel carriers ( APCs ) of the NORP forces arrived at the house . CARDINAL armed servicemen in camouflaged uniform surrounded the house and neighbouring buildings , while CARDINAL helicopters were hovering above the district . Masked men in camouflage entered the applicant 's house and ordered all those present to lie face down on the floor . After that they put handcuffs on the applicant 's son and forced him into an ORG . During the arrest no documents were produced and no reasons for the arrest were explained .

Together with PERSON , CARDINAL of the applicant 's neighbours were taken away from at their homes : CARDINAL men from the NORP family , who lived at CARDINAL FAC ; PERSON , who had come to repair a car at the NORP family 's house ; and PERSON , who lived at CARDINAL FAC . Those CARDINAL men were released DATE and told the applicant what had happened after their arrest .

They testified in writing that initially CARDINAL of them had been placed in CARDINAL ORG , together with PERSON , while PERSON was in the second ORG . They were blindfolded , and a black bag was placed on PERSON head . The APCs travelled in the direction of ORG .

Once they passed the village of GPE , they stopped and PERSON was transferred into the same ORG as the other CARDINAL men . The detainees were forbidden to talk . After a while PERSON asked a masked officer to loosen his handcuffs because his hands had gone numb , but his request was refused . After a while he asked a second time . The officer checked his hands and also took his watch , documents and money from his pocket . After TIME or CARDINAL of travelling they arrived at a place where they were ordered to descend .

The detainees remained blindfolded and were led into some underground LOC . There they were ordered to squat along the walls . Each of them was hit on the head with an iron rod and told to keep silent . CARDINAL of the detainees , but not PERSON , were called CARDINAL by CARDINAL for questioning , which took place outside the cellar , in a sort of barn . The questioning was carried out by several servicemen in camouflage and masks who did not identify themselves . The detainees were asked similar questions about their identity , whether they had taken part in the hostilities and what they knew about PERSON .

After the questioning they were taken to another cellar , where they were permitted to take off the blindfolds . The CARDINAL neighbours were all taken to that cellar , but PERSON was not . They spent TIME in the cellar and in TIME they were blindfolded again , taken out and put into an ORG . After CARDINAL ' ride they were ordered to get out and to lie on the ground . The military told them to remain motionless for TIME , otherwise they would be shot . They heard the noise of the ORG departing and after a while lifted their blindfolds . They found themselves not far from the road leading from PERSON to the village of ORG . They were picked up by passing transport and returned to PERSON .

The applicant and other members of the family have had no news of PERSON since DATE .

NORP Immediately after the detention of PERSON the applicant , along with her other son and PERSON wife , started to search for him . On numerous occasions , both in person and in writing , they applied to prosecutors at various levels , ORG , the administrative authorities in GPE , the Special Envoy of the NORP President in GPE for rights and freedoms , the media and public figures . In their efforts they were supported by several NGOs and public figures .

In their letters to the authorities the family stated the facts of PERSON detention and asked for assistance and details of the investigation . They also personally visited detention centres and prisons in GPE as well as further afield in LOC .

The applicant 's family received hardly any substantive information from the official bodies about the investigation into PERSON disappearance . On several occasions they were sent copies of letters stating that their requests had been forwarded to different prosecutors ' offices . At first officials seemed to confirm Mr PERSON 's detention , but , following well - publicised rumours in DATE about his death in a detention centre they denied any involvement in his arrest and detention .

On DATE Lieutenant - General PERSON , first deputy to the Chief of Staff of ORG , announced at a press conference that a number of commanders of illegal armed groups had been detained or killed . Listing the names , he said that on DATE PERSON had been captured .

On DATE the ORG news agency ORG reported that “ as a result of a special operation agents of ORG ( ORG ) have captured one of the closest allies of ORG , PERSON ” . Referring to unnamed sources , the agency reported that Mr PERSON was being detained and questioned at the ORG detention centre in GPE and had given statements about ORG 's further plans .

On DATE the GPE - based pre - trial detention centre of the ORG stated in reply to a lawyer hired by the applicant that PERSON had never been detained there .

On DATE during parliamentary hearings in ORG on the situation in GPE , the Deputy Prosecutor General , Mr GPE , was asked a question about the whereabouts of PERSON . He replied that in DATE the latter had been kidnapped from his home in PERSON by a group of unknown armed people . According to operational information , these were fighters who had killed him in DATE .

On DATE ORG replied to an enquiry by the Special Envoy of the NORP President in GPE concerning a number of complaints about disappearances . The letter stated that on DATE ORG had opened criminal investigation no . DATE into the detention by unidentified persons in camouflage of the former speaker of ORG , NORP PERSON . The investigation had been opened under LAW ( kidnapping ) . The whereabouts of PERSON had not been established . The letter stated that the investigation was under the special supervision of ORG .

Attached to the letter of DATE was a brief information note concerning criminal case no . DATE . This note stated that the criminal case had been opened on DATE under LAW . The investigation had established that on DATE a group of unidentified men in camouflage had arrived in several APCs at the PERSON ' house , broken into it and taken away PERSON and several other persons who had been in the house . On DATE other persons had been released , but they could not give any information concerning the place of their detention or PERSON whereabouts . The investigators sent requests for information to the ORG and ORG , in reply to which LOC of the Interior ( PERSON ) denied that PERSON had ever been arrested or detained by its officers .

On DATE ORG replied to the NGO Memorial concerning the investigation into several cases of disappearances . In relation to PERSON , ORG wrote that in the course of the investigation of criminal case no . DATE requests for information had been forwarded to the ORG , ORG and ORG . None of these agencies had detained Mr PERSON , and the investigation continued .

In DATE the application was communicated to ORG , who were requested at that time to submit a copy of investigation file no . DATE . In their memorials submitted in reply the Government gave some details of the investigation , without specifying the dates of the investigative measures . However , they did not submit any copies of the documents to which they referred . The ORG stated that the investigation was pending and that the disclosure of the documents would be in violation of LAW because the file contained information of a military nature and personal data concerning the witnesses . At the same time , the Government suggested that a ORG delegation could access the file at the place where the preliminary investigation was being conducted with the exception of “ the documents [ disclosing military information and personal data of the witnesses ] , and without the right to make copies of the case file and transmit it to others ” .

In DATE the ORG declared the application admissible and reiterated its request for the documents . In response , the ORG submitted a detailed update of the investigation and the documents from the criminal investigation file ( see Part B below ) .

According to this information , the investigation was opened on DATE ( not on DATE , as stated before ) by ORG . It established that on CARDINAL DATE the applicant 's son had been detained at his house by unknown armed men wearing camouflaged uniforms of the NORP armed forces and masks , using CARDINAL APCs , ORG vehicles and helicopters . CARDINAL other men were also detained and taken , supposedly , to either the NORP grain elevator or a meat - packing factory . On DATE the CARDINAL men were released .

It appears from the information submitted by the ORG and some documents contained in the case file that in DATE the police questioned CARDINAL of the CARDINAL men who had been detained together with the applicant 's son . The fifth man was questioned in DATE . According to the Government , on DATE the applicant was questioned and granted victim status . Also on DATE the investigation questioned PERSON wife as a witness . In DATE another eyewitness to PERSON arrest was questioned . However , the case file submitted by the Government does not contain copies of any of the witness statements . These transcripts are also not mentioned in the list of documents contained in the investigation file .

Various detention centres and military and law - enforcement bodies denied that PERSON name had ever been in their records . The investigation did not establish his whereabouts or the identities of the persons who had kidnapped him . It does not appear that any separate information was sought about the details of the special operation carried out in PERSON on DATE . No one was charged with any crime . DATE and DATE the investigation was adjourned CARDINAL times . The applicant was informed of some of the decisions to adjourn and to reopen the proceedings .

The Government submitted CARDINAL documents ( CARDINAL pages ) comprising criminal investigation file no . DATE and a list of documents contained therein . They can be summarised as follows .

On DATE a prosecutor from ORG opened a criminal investigation into the abduction of PERSON from his house at CARDINAL FAC , PERSON by unidentified armed persons on DATE at TIME The decision referred to LAW , paragraph CARDINAL , of LAW ( kidnapping ) .

On DATE the lawyer instructed by the applicant to represent her son in criminal proceedings requested ORG to grant him access to PERSON and to investigate the legality of his detention . He referred to the information from Mr PERSON 's family about the circumstances of his detention and the news of it that had been broadcast on the ORG channel on DATE at TIME

The investigation attempted to question PERSON brother PERSON , who did not live at home , but the applicant refused to indicate his whereabouts . In DATE an investigator from ORG noted that “ the relatives and friends of PERSON had categorically refused to give statements and explained that they were tired of dealing with the law - enforcement bodies on the same matters again and again ” .

The investigation tried to obtain information about PERSON from different sources . A number of law - enforcement agencies and detention centres in GPE , LOC and further afield in GPE , including pre - trial detention centre no . CARDINAL/CARDINAL in GPE , denied that he had ever been arrested or detained by them . They also denied that they had ever carried out any “ operational and search measures ” in respect of PERSON or that he had ever been charged with a crime .

On DATE the investigation requested the PERSON to identify the units that had been involved in the special operation aimed at Mr PERSON 's capture .

On DATE officers from the PERSON forwarded to the investigating prosecutors copies of transcripts of the witness statements made by CARDINAL men who had been detained together with PERSON , and by the applicant . They also listed CARDINAL other eyewitnesses to the arrest . It is unclear whether they were questioned , as the case file submitted by the Government does not contain any of the statements mentioned .

In DATE the investigation questioned a journalist from the newspaper PERSON , the author of the article “ Clearing - Up ” , published on DATE . The journalist stated that he had received information about PERSON detention by special forces from some NORP and from PERSON lawyer .

NORP In DATE the legal service of the ORG informed the investigation that the channel 's news programme broadcast at TIME on DATE had not contained a story about Mr PERSON 's detention .

At different stages of the proceedings several orders were issued by the supervising prosecutors enumerating the steps to be taken by the investigators . On DATE a prosecutor from ORG noted that “ the investigation was unsatisfactory ... In fact , the investigator did not carry out any procedural steps . ” He ordered , among other things , that a plan of action be drawn up , that the applicant and PERSON wife be questioned , that other detainees be questioned again and steps be taken to identify the place where they had been detained , and that other eyewitnesses be identified and questioned . Similar orders were given on DATE .

On DATE ORG ordered all the circumstances of PERSON disappearance to be fully investigated . In particular , the investigation body was requested to obtain answers to the information requests and to collect information from the law - enforcement bodies about Mr PERSON 's possible involvement in illegal activities .

The investigation was adjourned and reopened CARDINAL times . The latest decision to adjourn the investigation owing to the failure to identify the culprits was taken on DATE .

Until DATE criminal - law matters were governed by LAW the NORP Federalist Socialist Republic . From DATE the old Code was replaced by LAW ( CCP ) .

Article CARDINAL of the new ORG establishes the rule of impermissibility of disclosing data from the preliminary investigation . Under paragraph CARDINAL of the LAW , information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only 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 . Divulging information about the private life of participants in criminal proceedings without their permission is prohibited .


Violation of Art. 6-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant lives in PERSON .

The applicant is a medical practitioner . He has an individual contract ( ORG ) with ORG ( ORG ) .

NORP In CARDINAL submissions to ORG ( Paritätische Schiedskommission ) dated DATE and DATE , the applicant demanded payment for laboratory tests carried out in DATE . The claims against ORG amounted to MONEY ( ORG ) and ORG CARDINAL,CARDINAL.CARDINAL , respectively .

ORG claimed that the applicant had not participated in the test series for quality checking of laboratory parameters in DATE , and refused to pay for the tests .

The applicant argued that he had participated in the quality checks in DATE with positive results and had DATE as previously – submitted the relevant samples for the period in question .

ORG held an oral hearing and on DATE it dismissed the applicant ’s claim of DATE .

The applicant appealed against that decision to ORG Landesberufungskommission ) .

On DATE the applicant filed an application for transfer of jurisdiction ( Devolutionsantrag ) , requesting a decision on his submission of CARDINAL DATE from ORG , as ORG had failed to decide within the statutory DATE time - limit .

ORG held a hearing and rejected both of the applicant ’s claims . The decision was dated DATE , and was served on the applicant on DATE .

The applicant complained about this decision to ORG ) . On DATE ORG set aside the decision for violation of the right to a fair hearing before an independent and impartial tribunal established by law . It noted that CARDINAL of the assessors of ORG had negotiated the clause on remuneration for laboratory tests on behalf of ORG ( PERSON für PERSON ) , and thus the tribunal could not be regarded as impartial and/or independent .

An amendment to LAW ( Allgemeines Sozialversicherungsgesetz ) entered into force on DATE ; it provided for changes in the composition of , inter alia , ORG .

The newly composed ORG held a hearing on DATE , during which the applicant gave evidence .

On DATE the applicant requested that the decision be served on him . As ORG did not react , the applicant repeated his demand on DATE .

The applicant was summoned to another hearing by a newly composed ORG on DATE . During that hearing the entire subject was examined anew . Apparently ORG reached a decision on DATE . It dismissed the applicant ’s claims , finding that he had failed to participate in the required tests and had therefore not complied with the conditions for payment of the laboratory tests . ORG did not find any reasons to doubt the lawfulness of the underlying provision of LAW ( Honorarordnung ) . The decision was served on the applicant ’s counsel on DATE .

On DATE the applicant complained to ORG claiming that ORG lacked independence and impartiality . The former rejected the applicant ’s complaint in a decision of DATE . It observed that the members of ORG were not bound by any instructions . They were independent and impartial unless special circumstances , for instance the fact that CARDINAL member of ORG had been involved in the negotiation of the general agreements , gave rise to legitimate doubts about that member ’s independence and impartiality . Such special circumstances had not been shown by the applicant in the present case . The mere fact that the assessors were members of ORG which had provisions with the same content in their general agreements , did not suffice to cast doubt on the independence and impartiality of ORG . The decision was served on counsel on DATE .

The Social Insurance Act , which governs the composition of ORG , provides as follows :

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

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

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

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

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

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

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

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

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

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


The applicant , Mr PERSON , is an NORP national who was born in DATE . He was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by PERSON , ORG .

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

The applicant arrived in GPE for the first time in DATE to visit his brother , who was studying in GPE . Having failed to demonstrate that his brother was able to provide economic guarantees for his subsistence and return travel , he was expelled from the country . DATE , on DATE , the applicant again entered GPE and applied for a residence permit in order to study in the country . On DATE his application was rejected by ORG ( GPE ) . Apparently , he thereafter remained in the country illegally . In DATE he again applied for a residence permit as a foreign student , submitting that he had been admitted to ORG . On DATE he was , on this basis , given a temporary residence permit , effective until DATE .

In DATE the applicant returned to GPE . After re - entering GPE in DATE he remained there without permission until he again returned to GPE sometime during the autumn of DATE . DATE he did his military service in GPE . He remained in GPE until DATE .

In DATE the applicant was granted an entry visa to GPE to visit his brother . In DATE he married a NORP citizen whom he had first met during his initial period of residence in GPE , and in DATE he was granted a DATE temporary residence permit based on this relationship . Shortly before the expiry of this permit he again returned to GPE in DATE and remained there , without his wife , until DATE . The applicant has submitted that he remained in GPE on account of family problems there and that he was in continuous contact with his wife through telephone calls . After coming back to GPE , where now also his parents and his CARDINAL brothers were living , he was granted a permanent residence permit in DATE .

In DATE and DATE , respectively , CARDINAL sons were born to the applicant and his wife . The sons are both NORP citizens . In DATE the couple divorced . DATE the applicant made several journeys to GPE , the longest of which lasted for DATE . At visits made to GPE in DATE and DATE he apparently told relatives that he was considering a permanent return to his native country .

In the course of the police investigation into the narcotics offences of which he was subsequently convicted , the applicant stated that before he came under suspicion he had in principle moved back to GPE . He had rented an apartment there for a year , and his intention was to go to GPE for CARDINAL periods every year and to remain for DATE each time . DATE he intended to spend in GPE in order to see his children . The applicant further stated that he had better job opportunities in GPE , as well as contacts with persons who could help him . He also had a higher standard of living in that country than in GPE . The applicant ’s views in this respect were confirmed at his trial , during which he stated , inter alia , that his intention was to move back to GPE .

During his different periods of residence in GPE the applicant has been convicted of several criminal offences . Thus , in DATE he was found guilty of , inter alia , making unlawful threats and was given a suspended sentence and ordered to pay a fine . In DATE he was convicted of driving without a driver ’s licence and engaging in unlawful commercial traffic and sentenced to CARDINAL months’ imprisonment . In DATE he was convicted of robbery and of carrying knives in a public place and sentenced to imprisonment for DATE and DATE . He was released on probation in DATE .

On DATE ORG ( tingsrätten ) of ORG convicted the applicant and CARDINAL co - accused of aggravated narcotics offences involving the transportation from GPE and attempted importation into GPE of QUANTITY of heroin in DATE . The applicant was sentenced to CARDINAL years’ imprisonment . Moreover , the court considered that the offences were of such a character that each of the accused should be expelled from GPE with life - long bans on their return .

In his appeal against that judgment , the applicant , in regard to the question of expulsion , relied on his links to NORP society and also submitted that there was a risk that he would be punished again in GPE for the narcotics offences of which he had already been convicted in GPE .

On DATE ORG ( PERSON hovrätt ) upheld ORG judgment in its entirety .

The applicant sought leave to appeal against the appellate court ’s judgment . He again referred to his strong links to NORP society , including his long period of residence in the country , his close relationship with his CARDINAL young children , and the fact that both his parents and his CARDINAL brothers were residing in the country . He also invoked a letter from his former wife , in which she stated , inter alia , that it would be impossible for her to finance any future visits to GPE and that the applicant ’s expulsion would therefore be tantamount to depriving the children of their father .

On DATE ORG ( ORG domstolen ) refused the applicant leave to appeal . He started to serve his prison sentence on DATE .

The applicant ’s children visited the applicant in prison for the first time in DATE . During his time in prison he met the children on a total of CARDINAL occasions .

During the applicant ’s time in prison , CARDINAL petitions have been made to the Government for a revocation of the expulsion order . They were rejected by decisions of QUANTITY DATE , DATE and DATE respectively .

In support of his first request , the applicant submitted that he had no significant link to GPE and that his expulsion to that country would cause detriment to his children who were unable to accompany him . He also noted that his youngest son was receiving therapy at a child psychiatric clinic for the problems he was experiencing as a consequence of the expulsion .

In support of his third request , made in DATE , the applicant added that , following his divorce in DATE , he had maintained a good relationship with his former wife and his children and had visited them several times a week , and that they regularly came to visit him in prison . The youngest son had experienced the greatest problems as a result of the applicant ’s absence and he was therefore regularly seeing a psychologist .

On DATE the applicant was released from prison on probation . By a decision of the GPE police authority he was placed in detention on the same day pursuant to chapter CARDINAL , sections CARDINAL and CARDINAL of LAW ( Utlänningslagen , DATE ) , inter alia on the ground that there was reason to believe that he would otherwise abscond . On DATE ORG ( länsrätten ) in GPE upheld the detention order .

By a judgment of CARDINAL DATE ORG , at the request of the applicant and his former wife , ordered that they should have joint custody of their children . Previously , the former wife had had sole custody .

On DATE the order for the applicant ’s expulsion was enforced and the applicant deported to GPE .

In an opinion of DATE PERSON , a qualified psychologist and psychotherapist at the GPE education administration stated , inter alia , the following . At a meeting with the CARDINAL sons and their mother , the eldest son , who was aware of the applicant ’s deportation , had said that he was depressed and found the whole situation hopeless . The youngest son had not been informed of the deportation , as the family feared that he would not be able to bear the pain . He had refused to attend school and was generally unhappy and afraid . He stated that he would commit suicide if his father were to be expelled to GPE .

Pursuant to chapter CARDINAL , section CARDINAL of LAW ( ORG ) , a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a special consequence .

Provisions on expulsion on this ground are laid down in LAW ( Utlänningslagen , CARDINAL ) . According to chapter DATE , section QUANTITY , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied . Firstly , he must be convicted of a crime that is punishable by imprisonment . Secondly , he may only be expelled if he is in fact sentenced to a more severe punishment than a fine and if ( CARDINAL ) it may be assumed , on account of the nature of the crime and other circumstances , that he will continue his criminal activities in GPE or ( CARDINAL ) the offence , in view of the damage , danger or violation involved for private or public interests , is so serious that he ought not to be allowed to remain in the country .

Furthermore , under chapter CARDINAL , section QUANTITY , when considering whether or not an alien should be expelled , the court shall take into account his links to NORP society . In so doing , the court shall pay particular attention to the living conditions and family circumstances of the alien and the length of time he has resided in GPE . There must be a reasonable proportionality between the offence and the resulting consequences , and the stronger the links are between the alien and GPE the more serious the offence must be in order to justify his expulsion . Thus , an alien who has been a holder of a permanent residence permit for DATE when proceedings are initiated against him , or who at that time has been residing in GPE for DATE , may not be expelled unless there are exceptional reasons for his expulsion . As regards aliens who are considered to be refugees , special rules apply .


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

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

On DATE at TIME the applicant was arrested by the police while driving his car on a public road in GPE . The applicant had intended to cover a distance of QUANTITY in order to park his car for TIME . According to the subsequent charge brought against him , his blood alcohol concentration amounted to QUANTITY . At the time of this incident , the applicant worked as a criminal court judge . He has been granted unpaid leave from office since DATE .

On DATE the ORG ( ORG ) issued a penal order ( PERSON ) inflicting a sentence of CARDINAL DATE rates of DEM CARDINAL upon the applicant and withdrawing his driving licence for negligent drunken driving ( fahrlässige GPE .

On DATE the applicant filed an objection .

On DATE , following CARDINAL adjournments of the hearing upon the applicant ’s request , ORG changed the sentence to CARDINAL DATE rates of DEM CARDINAL and confirmed the revocation of his driving permit .

On DATE ORG rejected the applicant ’s appeal as having been filed out of time .

On DATE ORG ( Oberlandesgericht ) quashed the decisions of DATE and CARDINAL DATE on the grounds that ORG had erroneously rejected the applicant ’s offers of proof and remitted the case to ORG .

On DATE the case - file was returned to ORG .

On DATE the driving licence was returned to the applicant .

On DATE ORG scheduled the main hearing for DATE , which the applicant did not attend .

On DATE ORG , upon the applicant ’s request , decided to obtain an expert opinion as to whether the blood sample taken in DATE was identical with the applicant ’s blood , and the alcohol concentration of that sample .

On DATE ORG confirmed the blood - alcohol concentration of the sample .

On several occasions in DATE the applicant refused to have a blood sample taken . He argued that the examination could also be carried out with a sample of his saliva .

On DATE ORG rejected the applicant ’s request to have a sample of saliva taken , stating inter alia that an examination of a blood sample was simpler and less costly .

On DATE ORG confirmed the identity of the CARDINAL blood samples .

On DATE , following CARDINAL requests by the applicant to adjourn the hearing and the judge ’s illness in DATE , ORG scheduled the date for the main hearing for DATE .

On DATE the ORG convicted the applicant of deliberate drunken driving ( vorsätzliche GPE . It did not change the fine and imposed a CARDINAL months’ driving ban on him .

On DATE ORG quashed this judgment on the grounds of an insufficient assessment of the evidence and remitted the case to a different chamber of ORG .

On DATE ORG scheduled the main hearing for DATE .

On DATE ORG decided to discontinue the proceedings . It based its decision on the excessive length of the proceedings and their adverse effects on the applicant .

On DATE , following ORG appeal , ORG quashed ORG decision and remitted the case to ORG .

On DATE the applicant lodged a constitutional complaint raising the issue of the excessive length of the proceedings .

On DATE ORG ( Bundesverfassungsgericht ) refused to entertain the applicant ’s constitutional complaint . It found that the applicant had not as yet exhausted all possible prior legal remedies .

On DATE the case file arrived at ORG .

On DATE , following the applicant ’s request to postpone the hearing , ORG scheduled the main hearing for DATE .

On DATE the applicant excused himself from attending the continuation of the main hearing by submitting a medical attestation . ORG ordered the applicant ’s medical examination and ordered the main hearing to be continued on DATE .

On DATE ORG adjourned the hearing , because ORG had given notice that the medical examination could not take place before DATE .

On DATE , following the applicant ’s request , ORG adjourned the hearing .

On DATE ORG decided to discontinue the proceedings on account of their excessive length .

On DATE ORG ( Landgericht ) , following ORG appeal , quashed the decision of ORG on the ground that the length of the proceedings was not so excessive as to warrant their termination , and remitted the case to ORG .

Following the main hearing on DATE , which the applicant did not attend , ORG ordered the applicant ’s medical examination .

On DATE ORG submitted his expert opinion .

On DATE ORG ( Verfassungsgericht des Landes GPE ) rejected the applicant ’s constitutional complaint lodged on DATE , in which he complained about the length of the proceedings , as having been filed out of time .

On DATE ORG convicted the applicant of negligent drunken driving and sentenced him to CARDINAL DATE rates of DEM CARDINAL . It also imposed a driving ban for DATE . According to ORG , the length of the proceedings did not justify to discontinue the proceedings without a criminal sentence .

On DATE the applicant revoked his counsel ’s power of attorney .

On DATE the applicant granted the lawyer PERSON a power of attorney which was restricted to consulting the case - file .

On DATE , without having received a written copy of the judgment , the applicant lodged an appeal .

On DATE the ORG judgment was served on the lawyer PERSON

On DATE ORG dismissed the applicant ’s appeal as being ill - founded .

On DATE ORG , following the applicant ’s further appeal , decided that the judgment of DATE had not been properly served on the applicant .

Following several unsuccessful attempts to serve the judgment of CARDINAL DATE on the applicant , the judgment was duly served on him on DATE .

On DATE ORG dismissed the applicant ’s appeal on points of law as being ill - founded .

On DATE the applicant lodged a second complaint with ORG .

On DATE ORG quashed the judgment of ORG of DATE and the decision of ORG of DATE and remitted the case to ORG . It found that the applicant ’s conviction was disproportionate considering the excessive length of the proceedings , a delay of DATE attributable to the conduct of the lower courts and the relatively insignificant charge and thus violated the applicant ’s rights to a fair criminal trial as guaranteed by LAW of LAW in conjunction with the principle of proportionality enshrined in the rule of law .

ORG found , first , that the overall length of the proceedings as such , which amounted to DATE , was unreasonable . According to ORG , the applicant had considerably contributed to the length of the proceedings by his own legitimate conduct during the proceedings , such as by filing CARDINAL appeals on points of law , by lodging several requests to postpone the hearings , by at first refusing the taking of evidence by blood sample in DATE and by complicating the serving of the judgment of CARDINAL DATE . However , neither the delays caused by the applicant ’s own conduct nor the delays caused by ORG appeals could justify the overall length of the proceedings . In this respect , ORG noted that the charge of drunken driving was of a relatively minor nature and that the complexity of the case was low and did not necessitate any extensive taking of evidence .

Furthermore , the Federal Constitutional found that there had been a total delay of DATE which was imputable on the domestic courts . In this respect , ORG confirmed the finding of the lower courts , which had identified delays from DATE ( date on which the driving licence was returned to the applicant ) to CARDINAL DATE ( scheduling of a new date for the main hearing ) , from DATE ( return of the case - file to ORG after the second appeal decision ) to CARDINAL DATE ( scheduling of a main hearing ) , from DATE ( adjournment of the hearing ) to DATE ( scheduling of a new hearing ) and from CARDINAL DATE ( adjournment of the hearing ) to DATE ( decision on the termination of the proceedings ) .

With respect to the applicant ’s complaint about further delays amounting to DATE , ORG found that these did not violate the applicant ’s rights under LAW . It found , notably , that ORG decision to order the taking of evidence by blood sample was comprehensible . The delay between the adjournment of the hearing in DATE and DATE had been sufficiently explained by the competent judge ’s illness . ORG further accepted the delay between DATE and the hearing held on DATE .

ORG further found that those delays which had been caused by the remittal of the case to the first instance courts did not violate the obligation to expedite the proceedings . This could only apply if the judgments of the first instance courts had been flagrantly violating the law , which had , however , not been the case .

Turning to the consequences the length of the proceedings had on the applicant , ORG noted that , according to a medical attestation of DATE , the applicant had with a high probability developed a psychological disorder which negatively affected his quality of life and necessitated a rapid termination of the proceedings . Furthermore , the applicant had been deprived of his driving license for DATE . ORG finally noted that disciplinary proceedings had been instituted against the applicant .

Taking into account these elements , in particular the minor nature of the charge , the overall length of the proceedings and the hardships on the applicant , ORG found that it was unjustified to impose a criminal sentence on the applicant . It followed that the proceedings had to be discontinued without a criminal conviction . ORG further ordered GPE to reimburse the applicant the necessary expenses incurred by his constitutional complaint .

On DATE and CARDINAL DATE ORG judge requested ORG to consent to a termination of the proceedings .

DATE and DATE the case - file was dispatched to ORG in GPE .

On DATE ORG scheduled a hearing for DATE and requested ORG to consent to a termination of the proceedings .

On DATE ORG discontinued the proceedings pursuant to section CARDINALb of the Code of Criminal Procedure ( see relevant domestic law below ) . It further ordered that the ORG fees had to be borne by the ORG and that the applicant was to be reimbursed CARDINAL of the necessary expenses incurred by the proceedings .

The relevant provisions of LAW ( Strafprozessordnung ) read as follows :

Section CARDINAL

“ ( CARDINAL ) If a less serious criminal offense is the subject of the proceedings , the public prosecution office may dispense with prosecution with the approval of the court competent for the opening of the main proceedings if the perpetrator ’s culpability is considered to be of a minor nature and there is no public interest in the prosecution ....

( CARDINAL ) If charges have already been preferred , the court , with the consent of the public prosecution office and the accused , may discontinue the proceedings at any stage thereof ... ”

Section CARDINALb

“ ( CARDINAL ) If the conditions apply under which the court may dispense with imposing a penalty , the public prosecution office may , with the consent of the court which would have jurisdiction over the main hearing , dispense with preferment of public charges .

( CARDINAL ) If charges have already been preferred the court may , with the consent of the public prosecution office and of the accused , discontinue proceedings prior to the beginning of the main hearing . ”


CASE OF ČADEK AND OTHERS v. THE CZECH REPUBLIC

No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

André Potocki;Angelika Nußberger;Dean Spielmann;Helena Jäderblom;Karel Jungwiert;Mark Villiger

Under LAW , restitution claimants were entitled to restitutio in integrum of land which had been confiscated from them DATE . If it was not possible , for various reasons indicated in the LAW , to restore a particular plot of land , they were entitled to receive compensatory land of equivalent value ( “ restitution claim ” ) . ORG ( pozemkový fond ) , a public body under ORG ( hereinafter “ the Fund ” ) , deals with these restitution claims . Some original restitution claimants transferred their claims to other persons , a practice which was allowed by law . The restitution claims had a nominal value , which was based on the price of the confiscated land in DATE .

Act no . CARDINAL amending LAW ( “ LAW ” ) was passed on DATE ( see paragraph CARDINAL below ) . It provided that if the ORG had not settled a claim for a substitute plot of land by DATE or within DATE if the claim had been purchased after entry into force of LAW the claim would be extinguished and the restitution claimant would retain only the right to financial compensation in the amount of the nominal value of the claim . By DATE many restitution claims were still outstanding .

On DATE the board of directors of the ORG adopted a confidential internal directive in accordance with which the ORG would draw up contracts for the transfer of plots of land with persons who , like some of the applicants , had instituted proceedings against it . This practice was terminated on DATE . When the media discovered this DATE - long practice in DATE , they portrayed it as scheming with restitution claims within the ORG . According to them , those who had profited from it had been mostly people who had known about the directive and instituted proceedings after DATE , including some friends of managers of the ORG . As a result of the disclosure of this practice , CARDINAL managers of the Fund were dismissed and on DATE the Minister of Agriculture resigned . Subsequently , the ORG started to institute proceedings in order to have those transfer contracts rendered null and void .

DATE and DATE the applicant purchased a number of restitution claims for substitute plots of land . On DATE he instituted proceedings against the ORG , claiming the transfer of particular plots of land in settlement of his restitution claims .

On DATE the GPE CARDINAL ORG ( obvodní soud ) rejected his claim , holding that his restitution claims had expired on DATE LAW . On DATE ORG ( městský soud ) upheld the judgment but on a different ground . It found that the applicant was not entitled to settlement of his restitution claims through legal proceedings , as the ORG ’s priority was to settle the original restitution claims . On DATE ORG ( PERSON ) dismissed an appeal on points of law lodged by the applicant , thereby endorsing the opinion of ORG . On DATE ORG ( PERSON ) dismissed a constitutional appeal lodged by the applicant as manifestly ill - founded , referring to its judgment no . PERSON . ÚS CARDINAL/CARDINAL ( see paragraph CARDINAL below ) .

DATE and DATE the applicant purchased several restitution claims for substitute plots of land . On CARDINAL DATE he instituted proceedings against the ORG claiming the transfer of particular plots of land in settlement of his restitution claims .

On DATE the Prague CARDINAL ORG rejected his claims , holding that his restitution claims had expired on DATE LAW . On DATE ORG upheld that judgment . On DATE ORG dismissed an appeal on points of law lodged by the applicant . On DATE ORG dismissed a constitutional appeal lodged by the applicant as manifestly ill - founded , referring to its judgment no . Pl . ÚS CARDINAL/CARDINAL ( see paragraph CARDINAL below ) .

On DATE the applicant purchased several restitution claims for substitute plots of land . On DATE he instituted proceedings against the ORG claiming the transfer of a particular plot of land in settlement of his restitution claims .

On DATE the Prague CARDINAL ORG rejected his claim , holding that his restitution claims had expired on DATE LAW . On DATE ORG upheld that judgment . On DATE ORG dismissed an appeal on points of law lodged by the applicant . On DATE ORG dismissed a constitutional appeal lodged by the applicant as manifestly ill - founded , referring to its judgment no . Pl . ÚS CARDINAL/CARDINAL ( see paragraph CARDINAL below ) .

DATE the applicant purchased a number of restitution claims for substitute plots of land . On DATE he instituted proceedings against the ORG claiming the transfer of a particular plot of land in settlement of his restitution claims .

In a judgment of CARDINAL DATE the GPE ORG rejected his claim , holding that his restitution claims had expired on DATE LAW . On DATE ORG upheld that judgment . On DATE ORG dismissed an appeal on points of law lodged by the applicant . On DATE ORG dismissed a constitutional appeal lodged by the applicant as manifestly ill - founded , referring to its judgment no . Pl . ÚSCARDINAL/CARDINAL ( see paragraph CARDINAL below ) .

On DATE the applicant purchased several restitution claims for substitute plots of land . On DATE he instituted proceedings against the ORG claiming the transfer of particular plots of land in settlement of his restitution claims .

In a judgment of CARDINAL DATE the GPE CARDINAL ORG rejected his claim , holding that his restitution claims had expired on DATE LAW . On DATE ORG upheld that judgment . On DATE ORG dismissed an appeal on points of law lodged by the applicant . On DATE ORG dismissed a constitutional appeal lodged by the applicant as manifestly ill - founded , referring to its judgment no . PERSON . ÚS CARDINAL/CARDINAL ( see paragraph CARDINAL below ) .

The restitution claims purchased by the applicant in the CARDINAL applications cost a total of CARDINAL NORP korunas ( CZK ) ( MONEY ( ORG ) ) . The claims were settled by financial compensation of CZK MONEY ( EUR CARDINAL ) , which constituted their nominal value .

The applicant has been a farmer since DATE . She purchased several restitution claims for substitute plots of land DATE , and CARDINAL on DATE . The total nominal value was CZK CARDINAL ( ORG CARDINAL ) ; but the applicant paid CZK CARDINAL ( EUR CARDINAL ) . On DATE she instituted proceedings against the ORG claiming the transfer of particular plots of land in settlement of her restitution claims .

In a judgment of DATE ORG rejected her claim , holding that her restitution claims had expired on DATE LAW . On DATE ORG ( krajský soud ) upheld that judgment . On DATE ORG dismissed an appeal on points of law lodged by the applicant . On DATE ORG dismissed a constitutional appeal lodged by the applicant as manifestly ill - founded , referring to its judgment no . Pl . ÚSCARDINAL/CARDINAL ( see paragraph CARDINAL below ) .

NORP The applicant received financial compensation of CZK CARDINAL,CARDINAL,CARDINAL ( LAW ) for her restitution claims and she had the right to receive the rest of the nominal value of her restitution claims .

The applicant is a corporation established under NORP law . On DATE and DATE respectively , the applicant company concluded CARDINAL contracts by which it purchased for an unspecified amount restitution claims for substitute plots of land . On an unspecified date the applicant company instituted proceedings against the ORG claiming the transfer of a particular plot of land in settlement of its restitution claims . On the basis of a contract concluded on DATE , the ORG transferred to the applicant company the ownership of a plot of land valued at CZK CARDINAL,CARDINAL ( ORG CARDINAL ) . Consequently , the court proceedings were terminated as the matter had been resolved .

On an unspecified date the ORG instituted proceedings against the applicant company for the determination of property rights to the transferred plot of land , claiming that the contract was null and void .

On DATE the ORG decided that the ORG was the owner of the plot of land . It held that the contract was null and void because the ORG had not offered the sale of the land publicly before transferring it to the applicant company and had thereby unlawfully excluded other eligible persons from acquiring it . On DATE ORG upheld the judgment , endorsing ORG ruling . On DATE ORG dismissed an appeal on points of law lodged by the applicant company . On DATE ORG dismissed a constitutional appeal lodged by the applicant company as manifestly ill - founded , referring to its judgment no . PERSON . ÚS CARDINAL/CARDINAL ( see paragraph CARDINAL below ) .

The applicant company has not requested financial compensation to settle its restitution claims .

DATE and DATE the applicants purchased several restitution claims for substitute plots of land in order to acquire land in GPE to set up a health centre . The total nominal value of the restitution claims was CZK MONEY ( EUR CARDINAL ) ; they paid CZK CARDINAL ( EUR CARDINAL ) . On DATE they instituted proceedings against the ORG claiming the transfer of particular plots of land in settlement of their restitution claims .

In a judgment of CARDINAL DATE the GPE CARDINAL ORG rejected their restitution claims , holding that they had expired on DATE LAW . On DATE ORG upheld this judgment . On DATE ORG dismissed an appeal on points of law lodged by the applicants . On DATE ORG dismissed a constitutional appeal lodged by them as manifestly ill - founded .

The first applicant received financial compensation of CZK CARDINAL ( EUR CARDINAL,CARDINAL ) and did not ask for financial compensation for his outstanding restitution claims . The second applicant did not ask for financial compensation .

The applicant is an agricultural company . On DATE , it concluded a contract by which it purchased , for an unspecified amount , restitution claims for substitute plots of land , the nominal value of which was CZK CARDINAL ( ORG CARDINAL,CARDINAL ) . On the basis of a contract concluded on DATE the ORG transferred to the applicant company the ownership of plots of land valued at CZK MONEY ( EUR CARDINAL ) in partial settlement of the claim . The application refers only to that part of the claim .

On DATE the Fund instituted proceedings against the applicant company for determination of property rights to the transferred plot of land , claiming that the contract was null and void . On DATE ORG decided that the ORG was the owner of the plots of land . It held that the contract was null and void because the ORG had not offered the sale of the land publicly and had thereby unlawfully excluded other eligible persons from acquiring it . On DATE the ORG upheld the judgment , endorsing ORG ruling . On DATE ORG dismissed an appeal on points of law lodged by the applicant company . On DATE ORG dismissed a constitutional appeal lodged by them as manifestly ill - founded .

The applicant company received CZK MONEY ( EUR CARDINAL ) as financial compensation for its restitution claim .

On DATE the applicant purchased a restitution claim for substitute plots of land for CZK CARDINAL ( ORG CARDINAL ) , corresponding to its nominal value . She intended to acquire a plot of land on which she could breed horses for private purposes .

On DATE the ORG accepted the applicant ’s request for the transfer of a particular plot of land , but informed her that it could not carry out the transfer until it had all the necessary materials regarding the relevant zoning plan . On DATE the applicant wrote to the ORG asking it to settle her claim without further delay .

On DATE the applicant instituted proceedings against the ORG claiming the transfer of a particular plot of land in settlement of her restitution claim .

On DATE the ORG transferred the ownership of the plot of land to GPE Consequently , the applicant brought proceedings against the Fund , claiming that the transfer contract should be declared null and void .

On DATE the GPE nad ORG upheld her claim and declared the transfer contract null and void . In a judgment of DATE PERSON rejected the applicant ’s claim , however , holding that her restitution claim for the transfer of land had expired on DATE LAW and thus she had no interest in having the contract declared null and void . On DATE ORG dismissed an appeal on points of law lodged by the applicant . On DATE ORG dismissed a constitutional appeal lodged by her as manifestly ill - founded .

This Act provides , inter alia , for the restitution of certain agricultural and other properties , which were ceded or transferred to the ORG or other legal persons DATE and DATE .

Section CARDINAL provides that if the actual property can not be restored to its rightful owner , for example because the land has been built on , the ORG will transfer other equivalent ORG - owned property , preferably located in the same area , to the rightful claimant , if the latter consents .

In accordance with section CARDINAL , if property can not be restored to its rightful owners and the latter can not be compensated by the transfer of other property to them , they have a right to financial compensation under certain conditions .

NORP Under section CARDINALa , financial compensation is based on the value of the confiscated property on DATE , estimated in accordance with the regulations in force at that time .

Act no . CARDINAL amending LAW ( “ LAW ” ) entered into force on DATE , having been approved by ORG on DATE . It provided that any right to the transfer of substitute plots of land by the ORG under LAW that had not been settled within DATE from the date the restitution claim had been established would be extinguished , and claimants would be entitled only to financial compensation under section CARDINALa . Concerning claims that were established before LAW entered into force , the right to substitute plots of land would be extinguished on DATE .

ORG repealed the time - limit introduced by LAW for settling the claims of the original restitution claimants by transferring a substitute plot of land on the basis that it breached LAW No . CARDINAL . It held that given that the ORG had not been effectively settling outstanding claims – it had not been offering enough plots of land for transfer and there had been no effective legal remedy for enforcing those claims – the time - limit in effect deprived restitution claimants of their claims , which constituted legitimate expectations under LAW No . CARDINAL . However , the court distinguished between original restitution claimants and persons who had acquired restitution claims from them by deed . It said that only the rights of the original restitution claimants had been breached , because the transferees must have been aware of the difficulties in settling restitution claims and of the risks that accompanied them , so they could not be said to have legitimate expectations .

ORG , enlarging on the above decision of ORG , held that the time - limit for settling claims for substitute plots of land did not apply to farmers who needed the land for their own farming , even if they were not original restitution claimants . It held that the right to substitute plots of land constituted “ possessions ” under LAW No . CARDINAL and that LAW , which in practice had deprived farmers of this right , had not struck a fair balance between the competing interests . It distinguished between the situation of a farmer who needed the land for his or her own farming , which was in compliance with the object and purpose of LAW , and those dealing in property , whose commercial activities involved certain risks .

In DATE and DATE ORG conducted an audit of the ORG and found , inter alia , several irregularities in the way in which it dealt with restitution claims . It noted that the ORG ’s offer of plots of land to settle restitution claims had been limited and that the ORG had favoured the sale of land before using it to settle the restitution claims . It found some further irregularities in the way in which the ownership of land had been transferred under LAW .


Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE .

On DATE the applicant was arrested by the police .

On DATE the applicant was brought before ORG ) who charged him with larceny and detained him on remand .

On DATE the applicant ’s mother died .

On DATE the applicant made an application for leave to attend the funeral of his mother . The application was in the following terms :

“ I kindly ask you to grant me leave , on the basis of the telegram received on CARDINAL , [ to attend ] the funeral of my mother PERSON , address LAW , PERSON , PERSON – who died , which is confirmed by the telegram [ informing ] that her funeral will take place on CARDINAL.CARDINAL.CARDINAL .

I very kindly ask you to grant me leave – I would like to pay last respects to my mother , a beloved person whom I lost . I ask you to agree to my request – I thank you very much for that . ”

The application was accompanied by the statement of a prison officer who supported the applicant ’s request .

On DATE the FAC refused the permission to grant the applicant leave considering that he “ was a habitual offender whose return to the prison can not be guaranteed . ”

On DATE the Penitentiary Judge rejected the applicant ’s application for leave to attend the funeral of his mother . The judge ’s decision was worded as follows :

“ Further to the application of CARDINAL.CARDINAL.CARDINAL for compassionate leave I hereby inform you that , after analysing the case , I have not found grounds for granting such leave because there are no compassionate circumstances as referred to in Art . CARDINAL § CARDINAL of the Code of the Enforcement of Sentences . I should inform you that the Wrocław - Śródmieście District Court on CARDINAL ( ... ) refused permission to grant compassionate leave . ”

On DATE the applicant ’s father died .

On DATE the applicant made an application for leave to attend the funeral of his father . The application was in the following terms :

“ I kindly ask you to grant me a compassionate leave because my father PERSON has died . The funeral will take place on CARDINAL.CARDINAL.CARDINAL and I would like to attend it and to pay last respects to him . I should add that this is yet another death because in DATE my mother died and I did not attend her funeral . Now my dad has died , so that I have been left without parents and I would like to bid farewell and attend my dad ’s funeral . I declare that I will return from leave on time and I will not breach the trust . I ask you to agree to my request and I thank you for that . ”

The application was accompanied by the statement of a prison officer who confirmed that the applicant ’s “ behaviour was beyond reproach ” and that he “ stayed in touch with his wife and children . ”

On DATE the FAC refused permission to grant the applicant leave . The court gave the following reasons for its decision :

“ The charges against the accused involve a significant danger to society . The accused PERSON is a habitual offender within the meaning of LAW . In the court ’s view , his return to ORG can not be guaranteed . It should be pointed out that the next hearing has been fixed for DATE . For these reasons the above decision has been made . ”

On DATE the Penitentiary Judge refused the applicant ’s application for leave to attend the funeral of his father . The judge ’s decision was worded as follows :

“ Further to the application of CARDINAL for compassionate leave I hereby inform you that , after analysing the case , I have not found grounds for granting such leave because there are no compassionate circumstances as provided by Art . CARDINAL § CARDINAL of the Code of the Enforcement of Sentences – permission refused by the Wrocław - Śródmieście District Court ”

In a letter of CARDINAL DATE the applicant requested the President of ORG ( Sąd Wojewódzki ) to provide him with a written explanation of the reasons for which he had not been allowed to attend , either alone or under police escort , the funerals of his mother and father . On DATE the ORG Secretary of ORG advised the applicant that his requests for leave had been rejected because he had been a recidivist posing a risk of absconding .

On CARDINAL DATE the applicant was convicted of larceny and received a prison term .

On DATE the applicant was released from prison .

The relevant provisions of the Code of the Enforcement of Sentences DATE read as follows :

Article CARDINAL :

“ § CARDINAL In compassionate cases the Penitentiary Judge may allow the prisoner to leave the prison , if necessary under the escort of prison officers , for a period not exceeding DATE ; ...

§ CARDINAL In urgent cases the Prison Governor may grant temporary leaves for a period described in § CARDINAL ( ... ) ”

Article CARDINAL § CARDINAL :

“ ... [ T]he leave described in LAW CARDINAL may be granted only after a permission has been obtained from the organ at whose disposal the detainee remains . ”