Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

On DATE the applicant and a co - defendant , PERSON , were convicted of the robbery , false imprisonment and attempted murder of Mr PERSON . The applicant was sentenced to DATE imprisonment . A third co - defendant , PERSON , was convicted of robbery and false imprisonment .

According to the prosecution ’s case , on DATE Mr Mohamoud , who had spent some of the day selling PERSON ( a stimulant leaf ) , picked up PERSON , a prostitute , and arranged to go to her home for sex . PERSON lived in a fourth - floor council flat which was also occupied by PERSON When they arrived there were CARDINAL men , a woman and QUANTITY teenagers in the flat . PERSON was held by the applicant and searched at knife - point by PERSON who took QUANTITY in cash from him and then left to buy drugs . PERSON later returned with a quantity of crack cocaine which the occupants of the flat , but not Mr Mohamoud , smoked .

Mr GPE was then searched a second time by the applicant and PERSON and a further sum of money was taken from him . He was prevented all this time from leaving the flat by the applicant .

At some stage PERSON ’s mood changed under the effects of the drugs and he became angry . PERSON , together with the applicant and an unidentified woman , lifted Mr Mohamoud up and threw him out of the window . He fell CARDINAL floors . He survived , although he was left paralysed from the waist down . The occupants of the flat made no attempt to call an ambulance . He managed to attract attention by throwing stones at the window of a ground - floor flat . An ambulance eventually arrived to take him to hospital .

M. was arrested on DATE , the applicant on DATE and PERSON on DATE .

NORP The applicant was cautioned by the police in the following terms :

“ You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court . Anything you say may be given in evidence . ”

The applicant then told the police :

“ I ’m relieved . I ’ve expected this every time I ’ve been to the shops . ”

When being taken to the police station he further stated :

“ He was n’t pushed . He jumped . How is he ? ” and “ I can tell you everything , he jumped . ”

The applicant was advised to wait until he was interviewed at the police station .

At the start of the interview on DATE the applicant ’s solicitor informed the police that he had had a lengthy private conversation with his client and had advised him not to reply to any questions at the present time . His reasons were based on what he had been told about the allegations and his view that it would not be reasonable for the applicant to answer questions at that stage . He informed the police that the applicant would be willing to take part in an identification procedure .

The applicant was reminded by the police that he was under caution and he confirmed that he understood the implications of the caution . Thereafter , the applicant answered “ no comment ” to each question and in particular did so when asked whether he was present at the flat at the time of the offences , whether he knew PERSON , whether the latter was thrown out of the window and whether he would like to offer any account of the events in question . The applicant points out that the police never put to him his remark “ He was n’t pushed - he jumped ” ( see paragraph DATE above ) . The applicant submits that this statement was at the core of his defence and should have been referred to during interview .

At the end of the interview the applicant was reminded of the terms of the caution .

On DATE Mr Mohamoud identified the applicant and the other co - accused in a videotape identification procedure conducted at the hospital where he was being treated .

On DATE the applicant was again interviewed by the police in the presence of his solicitor and under caution . On that occasion he admitted being in the occasional presence of Mr Mohamoud at the flat and being in the flat on the night of DATE . The applicant denied being in the room when Mr Mohamoud fell from the window and repeated that PERSON had not been pushed out . He stated that ORG had not been threatened and that “ he was sitting there quite happy ” . The applicant declared that he had been told by PERSON that Mr Mohamoud had “ gone out the window ” . He had not believed this and looked out to check . He saw PERSON lying on the ground below . He did not go to help him because he was “ scared ” and thought he was dead . The applicant admitted that on the day(s ) in question he was the only person in the flat who fitted the very distinctive features in the description given by ORG of his attackers .

At his trial the applicant testified that he had seen Mr GPE drinking beer in the flat and spoke to him briefly on CARDINAL occasion . He learnt of the incident from PERSON who informed him that “ he ’s gone out of the window ” . The applicant thought she was joking . He went into the living room , looked out of the window and saw PERSON lying on the ground below . PERSON then told him that Mr Mohamoud had jumped out of the window . He watched the police and ambulance arrive from a neighbouring flat .

When asked during his evidence why he had not answered some or all of the questions put to him during the police interview the applicant replied that he had done so on the advice of his solicitor .

During the course of the applicant ’s evidence , and without seeking the views of the applicant ’s counsel in the absence of the jury , the trial judge asked the applicant if he was prepared to testify as to what he had told his solicitor prior to the first interview during the lengthy consultation . His counsel stated that since the question had been asked in the presence of the jury he would not object to the question being put to the applicant . The applicant then stated that he too had no objection to answering the question . The matter was not thereafter pursued by the prosecution or the trial judge .

NORP In his summing up to the jury the trial judge , with reference to section CARDINAL of ORG LAW DATE , directed the jury in the following terms :

“ ... you may draw such inferences as seem to you to be fair and proper from that failure of [ his ] to mention [ the points identified in his interview relating to his presence in the flat on TIME ] . You could , for instance , infer that the [ applicant and PERSON ] have fabricated their evidence , made it up , after those first interviews . You could infer that they were indeed biding their time and seeing whether or not they would be identified . That failure to mention the sort of things or give answers to the sort of questions that I have listed , as [ the applicant ] failed , can not of itself prove guilt . So , of course , if you were not sure of [ Mr GPE ’s ] identifications of any of these defendants , that would be the end of the case even if you thought they were behaving in the way I have just described over their first interviews . But although they can not of themselves , those failures , prove guilt , you may hold that failure against them in deciding whether he is guilty . You do n’t have to . It is for you to decide .

[ The applicant ] told you that his reason for not answering some of the questions was that he had received advice from his solicitor that he should make no comment ... Of course , we have – you have – no independent evidence of what was said by the solicitor , but if simply saying ‘ Oh my solicitor advised me not to answer ORG was by itself a good and final answer , any competent solicitor and a defendant would have the power to strangle at birth any interview and that would make , you may think , a mockery of the Act of ORG which allows a jury , if they think it is right and proper , to make an adverse inference and that could not have been ORG ’s intention . The fact is that it is [ the applicant ’s ] choice ... whether or not to accept [ his ] solicitor ’s advice or not , and any solicitor worthy of his or her name should have included in the advice the various pros and cons of saying no comment and in particular should have included the possibility , even the probability , that his or her defence could be harmed if they failed to mention facts that they could so easily do and that if they did not mention them , why then an adverse inference could be drawn . But as I say , you have no independent evidence as to what the solicitor said or did not say .

But whether or not the solicitors said that , the officers certainly did . They [ administered the caution ] more than once ... .

So it is for each defendant ... to decide whether to answer or not . You decide what you make of the reasons given for not answering . If you thought that the reason given was a good one , then of course you could not hold it against them . If you thought that they were failing to answer certain awkward questions because , for example , they were keeping their powder dry , as it were , hoping against hope they would not be identified and the other reasons I mentioned a moment ago , or because they had not yet worked out what their defence was going to be , you could draw the inference that I have mentioned and , if you did , that might point towards guilt , but it is you who decide whether it is fair and proper to draw those adverse inferences . ”

At the request of the applicant ’s counsel the trial judge gave the following further direction to the jury :

“ When dealing with the [ applicant ’s ] first [ interview ] when [ he ] failed to answer questions . I did not specifically remind you , though you have heard it any number of times , that the defendants were cautioned that they do not have to say anything . That is of course the position , they do not have to say anything , but the inferences I suggested that you can draw nevertheless remain if you think they have not mentioned things that they could reasonably have been expected to mention and if you think it is fair to take the inferences of the sort I have mentioned , but there is that right to silence . ”

On DATE the applicant was convicted of robbery , false imprisonment and attempted murder and sentenced to a total of CARDINAL years’ imprisonment .

The applicant and his co - accused appealed against conviction to ORG . The applicant relied , inter alia , on the ground that the trial judge misdirected the jury on the proper inferences to be drawn under section CARDINAL(CARDINAL ) of ORG LAW DATE from the exercise of his right of silence at the police interview .

On DATE ORG in a reserved judgment and following a hearing dismissed the appeal . Lord Justice PERSON stated in his judgment , with reference to section DATE of ORG LAW DATE , that it could not have been the intention of ORG to provide that the only adverse inference that could be drawn from failure to disclose facts was recent fabrication . He quoted with approval the judgment of Lord Justice PERSON in the case of NORP v ORG ( judgment of DATE , unreported ) .

“ The purpose of the statutory provisions is to permit adverse inferences to be drawn where there has been late fabrication , to this extent , to encourage speedy disclosure of a genuine defence . If a defendant disclosed to his solicitor , prior to a police interview , charging or trial , information capable of giving rise to a defence , it will always be open to the defence to lead evidence of this to rebut any inference of subsequent fabrication . But if such evidence was not disclosed or was not disclosed at a late stage in the sequence of interview , charge and trial , adverse inferences can be drawn by the jury . ”

Lord Justice PERSON added :

“ Thus the statutory objective designed to discourage surprise and “ trial by ambush ” is achieved . If the applicant was right in submitting that the only adverse inference that could be drawn was subsequent fabrication , the only purpose of the legislation ( to encourage speedy disclosure of genuine defences ) would be easily defeated . But in our judgment that is not the case ...

The complaint made ... is that under LAW a ‘ proper inference’ is CARDINAL relevant to ‘ in determining whether the accused is guilty’ , and not simply adverse to a Defendant . We agree with the first proposition contained in that sentence , but not with the second . As section CARDINAL(CARDINAL)(d ) [ of the DATE Act ] makes clear , the jury may make such inferences as they think proper in their task of considering their verdict . Clearly such inferences must be properly drawn , that is to say drawn from facts relevant to the verdict . The inferences that are complained of are not simply ‘ adverse’ ... When it is proper to take them into account the Judge rightly reminded the jury that they could draw the adverse inference that [ the applicant ] was biding his time and seeing whether or not he would be identified , and it was for the jury to decide whether or not ‘ to hold that failure against [ him ] in deciding whether [ he was ] guilty’ . ”

With respect to the applicant ’s argument that the trial judge should not have intervened to request the applicant whether he wished to relate what he had said to his solicitor before the first police interview , Lord Justice PERSON considered that this intervention was improper and an invitation to the applicant to waive legal professional privilege . However he concluded that , in the circumstances , the applicant had not been prejudiced as a result of the intervention .

On DATE ORG refused to certify that that the case raised a point of public importance and refused leave to appeal to ORG .

Section CARDINAL of ORG LAW DATE provides that :

“ CARDINAL . Where in any proceedings against a person for an offence , evidence is given that the accused –

( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ; or

( b ) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .

Where this subsection applies ...

( c ) the court , in determining whether there is a case to answer ; and

( d ) the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences from the failure as appear proper .

Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention . ”

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) provides :

“ ( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .

( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”

Section CARDINAL ( CARDINAL ) adds that :

“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”

Guidance as to the direction which the judge should give the jury in respect of section CARDINAL of ORG LAW DATE are provided by the ORG specimen directions and by the dicta of Lord PERSON in NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) . The relevance of these dicta to directions under section CARDINAL of the same Act was confirmed by ORG in NORP v. ORG ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) .

The Judicial Studies Board guideline direction at the time of ORG consideration of the applicant ’s appeal provided that :

“ If he failed to mention [ a fact ] ... when he was questioned , decide whether in the circumstances which existed at the time , it was a fact which he could reasonably have been expected then to mention .

The law is that you may draw such inferences as appear proper from his failure to mention it at that time . You do not have to hold it against him . It is for you to decide whether it is proper to do so . Failure to mention such a fact at that time can not , on its own , prove guilt , but depending on the circumstances , you may hold that failure against him when deciding whether he is guilty , that is , take into account as some additional support for the prosecution ’s case . It is for you to decide whether it is fair to do so . ”

The dicta of Lord PERSON are as follows :

“ We consider that the specimen direction is in general terms a sound guide . It may be necessary to adapt it to the particular circumstances of an individual case . But there are certain essentials that we would highlight :

The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .

It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .

An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .

Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant ’s silence .

NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant ’s having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”

The specimen direction for DATE , up - dated in DATE in the light of the judgments of ORG in cases such as NORP v. ORG ( [ DATE ] Criminal Appeal Reports CARDINAL ) , provided :

“ [ When arrested , and at the beginning of each interview ] this defendant was cautioned , he was told that he need not say anything , but that it may harm his defence if he did not mention something when questioned which he later relied on in court . Anything he did say may be given in evidence .

The defendant as part of his defence has relied upon [ ... ] ( here specify precisely the fact(s ) to which this direction applies ) . But [ the prosecution case is ] [ he admits ] that he did not mention this [ when he was questioned before being charged with the offence ] [ when he was charged with the offence ] [ when he was officially informed that he might be prosecuted for the offence ] .

The prosecution case is that in the circumstances , and having regard to the warning which he has been given , if this fact had been true , he could reasonably have been expected to mention it at that stage , and as he did not do so you may therefore conclude that [ it has since been invented / tailored to fit the prosecution case / he believed that it would not then stand up to scrutiny ] .

If you are sure that he did fail to mention [ ... ] when he was [ charged ] [ questioned ] [ informed ] , it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time . If it was , the law is that you may draw such inferences as appear proper from his failure to do so .

Failure to mention [ ... ] can not , on its own , prove guilt . But , if you are sure that quite regardless of this failure , there is a case for him to meet , it is something which you are entitled to take into account when deciding whether his evidence about this matter is true , i.e. you may take it into account as some additional support for the prosecution ’s case . You are not bound to do so . It is for you to decide whether it is fair to do so .

[ There is evidence before you on the basis of which the defendant ’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so . That evidence is [ ... ] . If you think this amounts to a reason why you should not hold the defendant ’s failure against him , do not do so . On the other hand , if it does not in your judgment provide an adequate explanation , and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case , you may hold it against him . ] ”

The most recent version of the specimen direction was published by ORG in DATE and takes account of case - law developments in the interpretation of section DATE . The new direction provides :

“ CARDINAL . Before his interview(s ) the defendant was cautioned ( ... ) . He was first told that he need not say anything . It was therefore his right to remain silent . However , he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court ; and that anything he did say might be given in evidence .

As part of his defence , the defendant has relied upon ( here specify the facts to which this direction applies - ... ) . But [ the prosecution say / he admits that he failed to mention these facts when he was interviewed about the offence(s ) . [ If you are sure that is so , this / This ] failure may count against him . This is because you may draw the conclusion ( ... ) from his failure that he [ had no answer then / had no answer that he then believed would stand up to scrutiny / has since invented his account / has since tailored his account to fit the prosecution ’s PERSON refer to any other reasonable inferences contended for - ... ) ] . If you do draw that conclusion , you must not convict him wholly or mainly on the strength of it ( ... ) ; but you may take it into account as some additional support for the prosecution ’s case ( ... ) and when deciding whether his [ evidence / case ] about these facts is true .

You may draw such a conclusion against him only if you think it is a fair and proper conclusion , and you are satisfied CARDINAL things : first , that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies ; second , that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ( ... ) ; third , that apart from his failure to mention those facts , the prosecution ’s case against him is so strong that it clearly calls for an answer by him ( ... ) .

( Add , if appropriate : ) The defence invite you not to draw any conclusion from the defendant ’s silence , on the basis of the following evidence ( here set out the evidence – ... ) . If you [ accept this evidence and ] think this amounts to a reason why you should not draw any conclusion from his silence , do not do so . Otherwise , subject to what I have said , you may do so .

( Where legal advice to remain silent is relied upon , add the following instead of paragraph CARDINAL : ) The defendant has given evidence that he did not answer questions on the advice of his solicitor / legal representative . If you accept the evidence that he was so advised , this is obviously an important consideration : but it does not automatically prevent you from drawing any conclusion from his silence . Bear in mind that a person given legal advice has the choice whether to accept or reject it ; and that the defendant was warned that any failure to mention facts which he relied on at his trial might harm his defence . Take into account also ( here set out the circumstances relevant to the particular case , which may include the age of the defendant , the nature of and/or reasons for the advice given , and the complexity or otherwise of the facts on which he relied at the trial ) . Having done so , decide whether the defendant could reasonably have been expected to mention the facts on which he now relies . If , for example , you considered that he had or may have had an answer to give , but reasonably relied on the legal advice to remain silent , you should not draw any conclusion against him . But if , for example , you were sure that the defendant had no answer , and merely latched onto the legal advice as a convenient shield behind which to hide , you would be entitled to draw a conclusion against him , subject to the direction I have given you ( ... ) ” .

In NORP v. ORG confirmed that legal advice is CARDINAL circumstance to be taken into account by the jury . ORG explained CARDINAL conditions that had to be met before section CARDINAL of the DATE could allow inferences to be drawn . As regards the sixth condition , Lord ORG stated :

“ The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could be reasonably have been expected to mention when questioned . The time referred to is the time of questioning , and account must be taken of all the relevant circumstances existing at the time . The courts should not construe the expression ‘ in the LOC restrictively : matters such as the time of day , the defendant ’s age , experience , mental capacity , state of health , sobriety , tiredness , knowledge , personality and legal advice are all part of the relevant circumstances ; and those are only examples of things which may be relevant ...

Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common sense , experience and understanding of human nature . Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons , such as he was ... worried at committing himself without legal advice , acting on legal advice , or some other reason accepted by the jury . ”

In NORP v. FAC ( [ DATE ] Criminal Law Reports CARDINAL ) ORG stressed the defendant ’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury ( by way of oral evidence from the defendant himself and / or the solicitor who gave the advice ) about the contents of the advice , that is the reasons why he was so advised .

The approach in NORP v. PERSON was confirmed in the later cases of NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , and PERSON judgment of DATE , unreported ) .

In NORP v. PERSON ( [ DATE ] ORG CARDINAL ) ORG held that where a trial judge decides , as a matter of law , that no jury could properly conclude that the requirements of section CARDINAL of the DATE have been satisfied and , therefore , it is not open to the jury to draw an adverse inference under section GPE ) , he must specifically direct the jury not to draw any inference . In NORP v. PERSON ( [ CARDINAL PERSON ] ) ORG ( per Lord Justice Auld ) stated :

“ Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt . Something more may be required , which may be provided by an adverse inference from silence if they think it proper to draw CARDINAL . What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them . The direction approved in GPE has a different object . It is to remind the jury that they can not convict on adverse inferences alone . It is to remind them that they must have evidence , which , in the sense of section CARDINAL inferences , may include defence evidence where called and which , when considered together with any such adverse inference as they think proper to draw , enables them to be sure both of the truth and accuracy of that evidence and , in consequence , guilt . ”

In the ORG ’s submission in the case of ORG v. GPE ( judgment of DATE , no . CARDINAL , § CARDINAL , ECHR CARDINAL-V ) , the case of NORP v. PERSON is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under LAW of LAW .

In NORP v. PERSON ( [ DATE ] Criminal Law Reports ) Lord PERSON stated , with reference to section CARDINAL of the DATE Act :

“ Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant ’s failure to give oral evidence at his trial until they have concluded that the ORG ’s case against him is sufficiently compelling to call for an answer by him . ... There is a clear risk of injustice if the requirements of logic and fairness are not observed ( ... ) ”

In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ORG confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial .

In NORP v. PERSON and PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) ] , ORG stated that the effect of the above - mentioned ORG v. the GPE judgment was that it was not the quality of the decision to remain silent that matters but the genuineness of the decision . For ORG , this was not a shield for a guilty person to hide behind . The adequacy of the explanation advanced may well be relevant as to whether or not the advice was the true reason for not mentioning the facts .


ISMAIL EBRAHIM and SERHAN EBRAHIM v. THE NETHERLANDS

The first applicant is a stateless person of NORP origin . He was born in GPE in DATE . The second applicant is his mother . She is a naturalised NORP national of NORP origin and was born in GPE in DATE . The applicants , who are currently both residing in the GPE , are represented before the ORG by Ms L. GPE , a lawyer practising in GPE . The respondent Government are represented by their Agents , Mr R.A.A. PERSON and PERSON , of ORG .

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

After the death of the first applicant ’s father , who was active for ORG ( “ ORG ” ) in GPE , the second applicant married PERSON , the brother of her husband . DATE , the latter was detained by the NORP authorities because of his ORG activities . After his release , he was accused by the ORG of espionage for GPE . In DATE , PERSON and his family , consisting of the CARDINAL applicants and a baby born in the meantime , left GPE for GPE , where they applied for asylum .

After having stayed in GPE and subsequently GPE , the family moved to the GPE where , on DATE , the second applicant ( also on behalf of her children ) and her husband applied for asylum or , alternatively , a residence permit on humanitarian grounds . On DATE , the ORG Secretary of ORG rejected these requests . The objection filed by the couple was rejected by the ORG Secretary on DATE . On DATE , the second applicant and her husband filed an appeal against the decision of DATE with ORG ( Afdeling Rechtspraak ) of ORG .

During their stay in the GPE , in the course of which CARDINAL more children were born to the couple , serious tensions arose between the first applicant and his stepfather . In the latter ’s opinion , the first applicant misbehaved by , inter alia , playing truant and having undesirable friends . He felt that he had no longer any authority over the first applicant . After the first applicant had broken into his school where he committed acts of vandalism , his stepfather decided to send him temporarily back to GPE . The second applicant thought that the first applicant would only go to GPE for a short period in order to become acquainted with his native country and culture . On DATE , without having been granted a re - entry visa ( terugkeervisum ) the first applicant travelled to GPE , where he moved in with his maternal grandmother in a refugee camp in ORG . The first applicant ’s school and the GPE immigration authorities were informed of this fact .

On DATE , pending the appeal proceedings before ORG , and in accordance with NORP policy in asylum cases that have not been dealt with within a certain time span , the ORG Secretary informed the second applicant and her husband that the objections against their residence in the GPE had been withdrawn and that instructions had been issued to provide them and the second applicant ’s minor children with a residence permit . The second applicant and her husband subsequently withdrew their appeal pending before ORG .

On DATE , the second applicant reapplied for a residence permit on humanitarian grounds . This permit , also valid for her minor children living with her , was granted on DATE .

On an unspecified date the second applicant and her husband filed a petition for naturalisation . In this petition , they further requested the conaturalisation ( medenaturalisatie ) of their CARDINAL minor children . This request did not include the first applicant . By LAW ) of DATE , the second applicant , her husband and their CARDINAL children were granted NORP citizenship .

Wishing to return to the GPE , the first applicant requested the GPE authorities in GPE on DATE for a temporary residence permit ( machtiging tot voorlopig verblijf ) on grounds of family reunification .

On DATE , as his visa application remained undetermined , the first applicant filed an objection ( bezwaar ) with the Minister of ORG ( Minister PERSON ) against the implied refusal ( fictieve weigering ) to grant him a temporary residence permit .

On DATE , the first applicant further requested the President of ORG ( arrondissementsrechtbank ) to issue an interim measure ( voorlopige voorziening ) ordering the Minister of ORG to issue a temporary residence permit or a laissez - passer allowing him to travel to the GPE together with the second applicant , who at that time was visiting him in GPE .

On DATE ORG set a deadline of DATE for ORG ( ORG ) of ORG to determine the first applicant ’s request for a visa .

On DATE , in the context of the objection filed on DATE , the second applicant was heard by a commission of ORG ( Immigratie- en Naturalisatiedienst ) concerning the first applicant ’s request to enter the GPE . At that hearing , she declared inter alia that the first applicant had been sent to GPE after family tensions had arisen in the GPE because of the first applicant ’s westernisation . It was thought desirable that he learn his language and culture and become acquainted with his family living in GPE .

In an undated decision taken on or around DATE , the Minister of ORG rejected the first applicant ’s objection of DATE . On DATE , the first applicant filed an appeal against this decision with ORG . He further requested the President of ORG to issue an interim measure allowing him to travel to the GPE .

On DATE , the President of ORG rejected the request for an interim measure . The President did not find it established that the first applicant ’s situation was of such gravity that he should be allowed to enter the GPE as a matter of urgency .

On DATE , following a hearing held on DATE , ORG declared the first applicant ’s appeal of CARDINAL DATE partly founded . Although ORG agreed with the Minister of ORG that , under the GPE immigration rules , the first applicant did not qualify for a temporary residence permit on grounds of family reunification , it held , as to the first applicant ’s complaint under LAW , that the preparation of the decision taken by ORG had been negligent and that this decision lacked sufficient reasoning . It was found that the Minister had failed to examine the question of the Netherlands’ positive obligations under LAW in a satisfactory manner , in that a number of important elements had not , or not sufficiently , been taken into account . Consequently , it quashed the impugned decision and ordered the Minister of ORG to take a new decision .

As none was taken within the prescribed statutory delay of DATE , the first applicant filed an appeal on DATE with ORG against this failure and requested accelerated proceedings ( versnelde behandeling ) .

In the course of the hearing held on DATE , the first applicant further requested the President of ORG to issue an interim measure allowing him to travel to the GPE . In its decision of DATE , ORG ordered the Minister of ORG to determine the first applicant ’s objection of DATE within DATE . It rejected the applicant ’s other claims .

On DATE , the first applicant again appealed to ORG as no fresh decision had been taken within the set time - limit and requested accelerated proceedings .

In its decision of DATE , ORG noted that no new decision had been taken by the Minister of ORG . It further noted that , on DATE , the second applicant had been heard by a commission of ORG but apparently this hearing did not result in a determination of the first applicant ’s objection . In the absence of a new decision on the merits of the objection , ORG could only find that the Minister of ORG had again failed to determine the objection timely . Consequently , it declared the first applicant ’s appeal founded and ordered the Minister to determine the first applicant ’s objection within DATE .

On DATE the Minister of ORG rejected the first applicant ’s objection of DATE . The Minister recalled that , in its decision of CARDINAL DATE , ORG had accepted that the first applicant did not qualify for a residence permit on grounds of family reunification under the relevant domestic immigration rules . Insofar as the first applicant relied on LAW , the Minister accepted that there was family life between the first applicant and his family living in the GPE , but did not find that there were such facts or circumstances which might give rise to a positive obligation on the Government to grant the first applicant a residence permit . On this point the Minister considered that the fact that the first applicant ’s family had lived in the GPE since DATE and held the GPE nationality did not in itself create such an obligation .

Further noting that the choice to return the first applicant to GPE for DATE had apparently been a conscious one , the Minister considered that the applicants should have realised that this choice entailed a risk that the first applicant would not be readmitted to the GPE . Having noted , inter alia , that the second applicant had visited the first applicant several times in GPE , the Minister did not find it established that there were any objective obstacles to the exercise of the applicants’ family life in GPE . As to the fact that the first applicant ’s siblings held the GPE nationality and were attending school in the GPE , the Minister held that this was a subjective rather than an objective obstacle for the exercise of family life elsewhere . Finally , noting that the first applicant had attained DATE in the meantime , and that , as from a young age , he had taken independent decisions , including the termination of his schooling and his relocation within GPE , the Minister held that the first applicant could be regarded as being quite capable of maintaining himself , and concluded that the general interests of the GPE in pursuing a restrictive immigration policy outweighed the applicants’ interests .

The first applicant filed an appeal with ORG , before which a hearing was held on DATE .

In its decision of DATE , ORG rejected the appeal . It accepted the finding of the Minister that it had not been established that , on the basis of his personal circumstances , the applicant could not be expected to remain in GPE and should be admitted to the GPE on humanitarian grounds . It did not find it established that the first applicant was in fact wanted by ORG and for that reason was continuously forced into hiding , as he had alleged . Noting that the first applicant was housed and financially supported by his uncle , that other members of his family are living in GPE and that the second applicant could continue to provide him with support , ORG concluded that the finding of the Minister could not be regarded as unjust .

As to the argument raised under LAW , ORG concluded that , in the light of its findings as to the first applicant ’s personal situation , the interests of ORG in pursuing a restrictive immigration policy outweighed the applicants’ interests in exercising their family life in the GPE . ORG did not find it established that there were any objective obstacles preventing the applicants from enjoying their family life in GPE . It noted on this point that the asylum request of the first applicant ’s stepfather had been rejected but that he had subsequently obtained a residence permit because of a special policy allowing asylum seekers to remain when asylum proceedings had lasted DATE . ORG further rejected the argument that the ORG integration into NORP society should be regarded as an objective obstacle to the whole family ’s return to GPE .

On DATE , the first applicant travelled on a false passport via GPE to GPE intending to continue to the GPE . He was arrested in GPE and placed in GPE detention .

He subsequently applied for asylum in GPE . On DATE , via his lawyer in the GPE , the first applicant requested the GPE authorities to take over his asylum request from GPE . On DATE , the first applicant ’s lawyer further filed a new request for a temporary residence permit for the first applicant .

After the NORP authorities had rejected the first applicant ’s request for asylum , he was expelled to GPE on DATE .

Upon his arrival in GPE , the first applicant was detained as he held no documents allowing him to stay in GPE . The NORP authorities allowed him to telephone the second applicant . On DATE , the first applicant DATE via his lawyer in the GPE – informed the GPE authorities of his situation , requesting them to intervene and allow him to travel to the GPE . After the second applicant had sent money to GPE , the first applicant was released on DATE and was told to leave GPE within DATE . On DATE , the first applicant travelled to the GPE , where he has resided since .

On DATE , the Minister of ORG rejected the first applicant ’s application of DATE for a temporary residence permit , finding that such a permit can not be granted when the person concerned has already entered the GPE . The first applicant ’s objection to this decision , in which he only argued that he should be regarded as exempted from the obligation to have a temporary residence permit and did not raise any arguments concerning the reasons for the rejection of DATE , was dismissed by the Minister of ORG on DATE . Although an appeal against this decision could be filed with ORG , it does not appear that the first applicant availed himself of this possibility .

In the meantime , on DATE , the first applicant ’s lawyer requested ORG to declare that , on the basis of LAW of DATE and at that time being a minor son of the second applicant , the first applicant is a NORP national .

On DATE , following a hearing held on DATE , ORG rejected the first applicant ’s request . It noted that the first applicant had already left for GPE when his mother , stepfather and their children were granted a NORP residence permit and that , subsequently , the second applicant and her husband were granted NORP nationality , it being stipulated that NORP nationality was withheld from minor children who did not hold a NORP residence permit . On this point ORG also noted that the request for naturalisation , resulting in LAW of DATE , had not included the first applicant . It therefore concluded that no misunderstanding could have arisen about the first applicant ’s exclusion from the naturalisation decision . It further rejected as unestablished the first applicant ’s argument that , in departing for GPE , he had not intended to alter his principal place of residence ( hoofdverblijf ) in the GPE or to sever his family tie . On this point ORG noted that , at the time of naturalisation , the first applicant had already resided for DATE in GPE with different relatives . In addition , ORG took into account the reasons for his return to GPE given by the second applicant before the commission of ORG , namely family tensions caused by his westernisation , and the need for him to learn the language and the culture , and to become acquainted with his family in GPE .

The admission , residence and expulsion of aliens were regulated at the material time by LAW DATE ( PERSON ) , the Regulation on Aliens ( ORG ) and LAW ( Vreemdelingencirculaire ; “ LAW ” ) , being directives drawn up and published by ORG .

On DATE , LAW entered into force – replacing LAW – along with a new Regulation on Aliens and new Guidelines .

The GPE authorities pursue a restrictive immigration policy in view of the high population density in the GPE and the problems to which this gives rise . In general and under the legal rules in force until DATE , aliens are only granted admission for residence purposes if : ( a ) the GPE are obliged under international law to do so ; ( b ) this serves the “ essential interests of the GPE ” , e.g. economic or cultural interests ; and ( c ) there are “ cogent reasons of a humanitarian nature ” ( LAW ACARDINAL/CARDINAL.CARDINAL of the Guidelines ) . No right to admission to the GPE can be derived from the fact that a non - NORP national is living there without a residence permit .

An alien wishing to enter and stay in the GPE for DATE must have a temporary residence permit . An application for such a permit can be made to the GPE authorities in the alien ’s country of origin . The resident in the GPE with whom an alien seeking admission is planning to stay , can also apply to the chief of the local police for an official opinion . An application for a temporary residence permit is determined on the basis of the same requirements as a residence permit . These requirements differ depending on the grounds on which an alien seeks admission and residence .

The policy for admission for family reunification purposes was at the relevant time laid down in LAW of FAC . This provides , insofar as relevant , that a residence permit for the purposes of family reunification may be granted in respect of minor children of a NORP national when , inter alia , the children factually belong to his / her family and the family ties with the parent already existed abroad and have been maintained . Family ties are considered to have been severed by the longterm integration of the child into another family when the parents no longer exercise parental authority and no longer provide for the costs of the upbringing and care of the child .

Aliens who are allowed to remain in the GPE pending a decision on their residence status may under certain conditions , with the consent of the NORP authorities , return to their countries of origin for short periods . If they meet the requirements , being at least compelling reasons of a humanitarian nature , such as a serious illness or the death of close relatives , they may be granted a re - entry visa , which affirms the right of the holder to return to the GPE . No re - entry visas for a temporary return to their country of origin are granted to asylum seekers .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , Mr ORG , is a citizen of GPE and the GPE who was born in DATE and lives in GPE . ORG GPE ( “ the Government ” ) were represented by ORG , Agent , and PERSON , Deputy Agent .

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

Prior to the dissolution of ORG ( “ the SFRY ” ) the applicant deposited foreign currency in his CARDINAL bank accounts at the then GPE – PERSON and GPE banka GPE – PERSON ( in what is DATE GPE ) and PERSON – PERSON and GPE banka GPE – GPE banka PERSON ( in what is DATE PERSON ) . In GPE , as well as in other successor GPE of the SFRY , such savings are commonly referred to as “ old ” foreign - currency deposits ( for the relevant background information see ORG v. GPE , no . CARDINAL , CARDINAL DATE ) .

In DATE the balance in the applicant ’s accounts ( which included interest ) was apparently in the region of MONEY ( MONEY ) .

The applicant subsequently attempted to withdraw his savings on several occasions , but to no avail . It would appear that he has not obtained a verification certificate pursuant to the domestic legislation on “ old ” foreign - currency savings .

The relevant law and practice were outlined in ORG , cited above .


The applicant was born in DATE and lives in GPE . He is a lawyer and a former member of ORG .

The applicant wrote a novel entitled “ The Heat of Şiro ” ( Şiro'nun Ateşi ) . The book was based on real events which took place in Ormaniçi village in the province of PERSON . The book was published in DATE by ORG .

On DATE the public prosecutor at ORG requested the seizure of copies of the book . The public prosecutor contended that the content of the book incited hatred and hostility by making distinctions between NORP citizens based on grounds of their ethnic or regional identity .

On DATE a single judge of ORG accepted the submissions of the public prosecutor and made an interim order for the seizure of copies of the first edition of the book . In its decision ( no . CARDINAL/CARDINAL ) , ORG held that the book , by attributing extremely disgusting acts to the security forces , identified with names and rank , incited people to hatred and hostility by making distinctions between NORP citizens based on grounds of their ethnic or regional identity . The court further held that , while artistic expression fell within freedom of expression , that freedom was not absolute and that the dissemination of distasteful and disgusting texts by way of a novel could not be considered to be artistic expression .

According to the applicant , copies were then seized . However , the seizure protocol drafted by the police and signed by the owner of the publishing company on DATE recorded that copies of the book were not found .

The Government in their observations drew attention to following passages on pages CARDINAL and CARDINAL of the book :

“ ... Ah , I wish I were strong like before so that I could catch ORG in the meadow of ORG . Then he would have understood what the world is like . I would have stripped him under the DATE sun ; I would have had him walk before GPE and whipped him DATE .

- Then how would you be any different from those tyrants ? No matter who does it , cruelty is an ugly thing . Whether it is you or the fox . It does not matter . Cruelty is such a dishonourable thing that , whoever does it , is not a human being .

- I swear that I would turn him inside out . If I had only caught him then he would have understood . I swear upon your head that I would have put a rope around his neck and walked him naked all around GPE , then I would have skinned him and filled him up with salt , as an example to all tyrants .

- Then you , PERSON , would become LOC PERSON . Our Mizrak or somebody else 's Mizrak , what difference does it make ? People like Mizrak should not exist in GPE , GPE , GPE or anywhere else . These kind of people contaminate the world . They destroy love and brotherhood .

- I beg you Brother , why do you talk like this ? There is no other way to fight these tyrants ! You have to talk to them in their own language ; there is no other way !

- I used to think just like you , ORG . However , I went there and realised that LOC is not alone .

- See , you have to make all of them disappear ; you have to kill all of them .

- You can not terminate it by killing them . There are too many to kill . Whomsoever you want to kill is only the cog of the machine . Even if you break the cog of the machine there are too many degenerated people out there waiting to become the cog ! When you are struggling with the first ones , the same old tyrannising machinery continues to function , and this goes on forever . We have to stop this machinery ! That is what we should do . There is no other way . Then you would see how they are running away like cows .

- Where is that power ?

- Is there anyone stronger then us , PERSON ? When all human beings stand up against this tyrannising machine , see if the machine still continues to function ? Then they would see whether it is them or us who are stronger . ”

On DATE the applicant appealed against the seizure order . The applicant averred that the seizure order constituted an unjustified interference with his right to freedom of expression guaranteed by ORG . However he gave an incorrect case number on his appeal . As a result it appears that the appeal court did not consider the facts of his case , but that of another ( relating to a poetry book ) . On DATE ORG dismissed the applicant 's appeal and upheld the order , together with the single judge 's reasons for issuing it .

On DATE the public prosecutor attached to ORG filed a bill of indictment against the applicant and requested that he be convicted and sentenced under LAW DATE .

During a hearing held on CARDINAL DATE before ORG , the applicant requested the court to annul the interim seizure order against his book . The matter was adjourned to the next hearing , fixed for DATE .

On DATE Law No . DATE concerning the suspension of pending cases and penalties in media - related offences entered into force .

On DATE ORG suspended the proceedings brought against the applicant . The court , however , did not determine the applicant 's request to annul the interim seizure order against his book .

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


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Release pending trial);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicant was born in DATE and lives in GPE .

The applicant alleged that at TIME on DATE he had been taken to the local police station in the town of GPE in connection with an armed assault that had taken place DATE . He further alleged that his arrest had not been recorded and that he had been released TIME .

On DATE criminal proceedings were instituted against the applicant under LAW ( CARDINAL ) and ( CARDINAL ) of LAW ( ORG ) . The proceedings were instituted upon the complaint of the victim , PERSON , who lived in the same building as the applicant . According to PERSON , at TIME on DATE the applicant , who had been wearing a mask , had attacked him on the ground floor of their building , hit him on the head with a metal rod and grabbed his briefcase , which had been full of expensive jewellery .

At TIME on DATE the applicant was formally arrested on suspicion of having committed the above - mentioned offence . The arrest report was signed by the applicant .

On DATE the applicant was formally charged with robbery under the above - mentioned Article . The charge sheet specified that following the incident the victim had pursued the applicant , who had been forced to drop the briefcase and flee . It was signed by the applicant .

On DATE the investigator applied to ORG to have the applicant detained for DATE on the grounds that he had previous convictions , the offence belonged to the category of serious crimes and that , if at large , he would abscond .

On DATE ORG examined and granted the investigator ’s application , finding that the case materials provided sufficient grounds for believing that the applicant might abscond and obstruct the investigation , having regard to the nature and degree of dangerousness of the offence in question .

On DATE the investigator sought to have the applicant ’s detention extended by a further DATE . The application stated that a number of examinations had been carried out during the investigation , including chemical and biological examinations and an examination of the traces left by the crime . However , an additional biological examination had to be carried out and the charge amended . The investigator argued that the applicant , if released , would abscond since he had committed a serious crime and might commit further offences as he had previous convictions . He had not admitted his guilt and would therefore obstruct the investigation . The investigator submitted , in support of his application , a number of case materials , such as the decision to institute criminal proceedings , the arrest report and the decision to bring charges .

The applicant objected to the investigator ’s application and asked the court to release him on bail . He submitted at the outset that there was no reasonable suspicion that he had committed an offence . The fact that he had committed offences in the past did not justify detaining him in this particular case . ORG stated in that regard that it was not examining the case on the merits , including the question of the applicant ’s guilt , but was examining the validity of the application for an extension of the applicant ’s detention . There was a difference between the issue of guilt and that of the existence of a reasonable suspicion .

The applicant further submitted that there was no concrete evidence justifying his detention . In response to a request by the applicant to produce evidence , the investigator admitted that no such evidence was available . He submitted that a number of examinations had been ordered and that it was necessary to take a blood sample in order to determine whether the applicant ’s blood group corresponded to the traces of blood found on the victim ’s shoes . The presiding judge then asked the investigator to present all the materials of the case . Shortly afterwards , the judge withdrew to the deliberation room .

ORG , having examined the investigator ’s application and the materials confirming that it was well - founded , decided to grant the application in part and to extend the applicant ’s detention by DATE until DATE on the ground that on DATE the investigator had ordered a biological examination which had not yet been completed . Referring to LAW ORG ) , the court further decided to refuse the applicant ’s request for bail , on the ground that he was accused of a serious crime .

On DATE the applicant lodged an appeal . He submitted , inter alia , that there was no reasonable suspicion of his having committed an offence . The documents submitted by the investigator in support of his application , such as the decision to institute criminal proceedings , the arrest report and the decision to bring charges , were not sufficient to found a reasonable suspicion . Moreover , ORG had refused , in general terms , to address the issue of the existence of a reasonable suspicion . The applicant further contested the allegation that he might commit further offences , which was based solely on the fact that he had previous convictions . Furthermore , there was no concrete evidence suggesting that he would abscond , and the need to carry out an additional biological examination could not serve as a ground for his continued detention . Lastly , the applicant argued that the proceedings in ORG had not been adversarial and had violated the principle of equality of arms since the presiding judge , having failed at the hearing to examine any evidence on which to found a reasonable suspicion , had received the entire case file from the investigator before withdrawing to the deliberation room . The applicant had neither had access to any of those materials nor the possibility to comment on them .

On DATE the Criminal and Military Court of Appeal upheld the decision of ORG . It stated that the investigating authority had submitted certain evidence substantiating the applicant ’s guilt which confirmed his involvement in the event . Thus , there was a reasonable suspicion that the applicant had committed an offence . ORG found that there was a need to extend the applicant ’s detention , having regard to the dangerousness and nature of the alleged offence and the fact that he might abscond and obstruct the investigation . It dismissed his application for bail on the same grounds . It considered that the decision of ORG to extend detention and refuse bail was well - founded and reasoned and that there were no grounds to amend that decision .

On DATE the investigator lodged an application seeking to have the applicant ’s detention extended by DATE on the same grounds as before .

On DATE ORG examined the investigator ’s application . The applicant was present at that hearing and was seated next to his lawyer . He objected to the investigator ’s application and asked the court to release him on bail . ORG decided to grant the application and to extend the applicant ’s detention by DATE until DATE on the ground that the investigator had ordered a number of examinations which had not yet been completed . The court further decided to refuse the applicant ’s request for bail on the same ground as before .

On DATE the charges against the applicant were amended . In addition to the original charge the applicant was also accused of recidivism and attempted murder .

On DATE the investigation was completed and the applicant was granted access to the materials in the case .

On DATE the applicant ’s detention period , authorised by the decision of CARDINAL DATE , expired .

On DATE the prosecutor approved the indictment and the case was sent to ORG for examination on the merits .

On DATE ORG decided to leave the applicant ’s appeal of DATE unexamined on the ground that the investigation had been completed and the case transmitted to ORG .

On DATE the applicant lodged an application with ORG claiming that his detention had been unlawful since DATE and requesting his release . A similar application was made to the chief of the detention facility where the applicant was held .

By a letter of CARDINAL DATE the chief of the detention facility refused the request , referring to LAW ORG , on the ground that the case had been transmitted to ORG .

On DATE ORG dismissed the application of DATE on the same grounds .

On DATE ORG decided to set the applicant ’s criminal case down for trial . The decision stated that the applicant ’s detention was to remain unchanged .

In the courtroom , during the proceedings before ORG , the applicant was placed in a metal cage measuring CARDINAL sq . m. He was represented by a lawyer .

At the hearing of CARDINAL DATE the applicant requested to be released from the cage . ORG decided to adjourn the examination of that question .

At the hearing of CARDINAL DATE the applicant challenged the presiding judge . He submitted , inter alia , that his placement in the metal cage had amounted to inhuman and degrading treatment and also violated the principle of equality of arms and the presumption of innocence , despite which the presiding judge had failed to take any measures to eliminate those encroachments on his rights . It appears that this challenge was dismissed as unfounded .

The applicant alleged that following the dismissal of that challenge he had again requested to be released from the cage , but the court had refused his request on the ground that it had no other means of ensuring security in the courtroom . The Government alleged that no further steps had been taken by the applicant in that connection following the dismissal of the challenge .

During the entire proceedings before ORG the applicant was kept in the metal cage . The proceedings lasted DATE and included CARDINAL public hearings at which the applicant was present . The hearings lasted TIME . It appears that the case attracted public attention in the town of GPE and that the hearings were attended by the applicant ’s family and friends and numerous other members of the public , including other inhabitants of the town and many students .

On DATE and CARDINAL DATE the applicant lodged appeals on points of law against the decisions of DATE and DATE .

At the hearing on DATE the applicant asked ORG to revoke his detention order or otherwise release him on bail . He submitted that he had been in detention for DATE . There were no grounds justifying his continued detention since all the witnesses had already been examined and he could not obstruct the proceedings . The prosecutor objected to the request , stating that the applicant could not be released on bail because he was accused of a serious crime . ORG decided to dismiss the applicant ’s request on the ground that the examination of the case was not yet over and there were insufficient grounds to revoke his detention or release him on bail .

On DATE ORG decided to return the applicant ’s appeals of DATE and CARDINAL DATE for lack of merit .

On an unspecified date the prosecutor decided to drop the charges and sought an order from ORG terminating the criminal proceedings against the applicant on the ground that the evidence obtained was not sufficient to support the charges against him .

On DATE the ORG decided to grant that application and to terminate the criminal proceedings against the applicant under LAW of the ORG .

On DATE the applicant was released from detention .

Under LAW , offences , according to their nature and the degree of danger posed to society , are divided into offences of minor seriousness , medium seriousness , serious offences and particularly serious offences . Premeditated acts punishable by a maximum of CARDINAL years’ imprisonment fall into the category of offences of medium seriousness , while those punishable by a maximum of CARDINAL years’ imprisonment are considered serious offences .

Under LAW ( CARDINAL ) and ( CARDINAL ) , robbery , that is , assault for the purpose of stealing another ’s property accompanied with violence or the threat of violence endangering life or health , if committed for the purpose of stealing a large amount of property and with the use of a weapon or other articles used as a weapon , is punishable by imprisonment of DATE .

Under LAW , a final decision is any decision taken by the authority dealing with the case which precludes the institution or continuation of proceedings or resolves a case on the merits .

Under LAW ) , the accused is entitled to lodge appeals against the actions and decisions of the inquiry officer , the investigator , the prosecutor and the court , including the verdict and any other final judicial decision .

Under LAW , as in force at the material time , appeals could be lodged only against final decisions of the first - instance court .

Under LAW , preventive measures are measures of compulsion imposed on an arrestee or the accused in order to prevent their inappropriate behaviour in the course of the criminal proceedings and to ensure the enforcement of the judgment . Preventive measures include , inter alia , detention and bail .

Article CARDINAL provides that the court can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may : ( CARDINAL ) abscond from the authority dealing with the case ; ( CARDINAL ) hinder the examination of the case during the pre - trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings , concealing or falsifying materials significant for the case , failing to appear following a summons by the authority dealing with the case without valid reason , or by other means ; ( CARDINAL ) commit an act prohibited by criminal law ; ( CARDINAL ) avoid criminal liability and serving the imposed sentence ; or ( CARDINAL ) hinder the execution of the judgment . Detention and bail can be imposed on the accused only if the severest punishment prescribed for the alleged crime is imprisonment for a term exceeding one year or if there are sufficient grounds to believe that the suspect or the accused might commit any of the actions referred to above . When deciding on the necessity of imposing a preventive measure or choosing the type of preventive measure to be imposed on the suspect or the accused , the following must be taken into account : ( CARDINAL ) the nature and degree of danger of the alleged offence ; ( CARDINAL ) the personality of the suspect or the accused ; ( CARDINAL ) his or her age and state of health ; ( CARDINAL ) his or her sex ; ( CARDINAL ) his or her occupation ; ( CARDINAL ) his or her family status and dependants , if any ; ( CARDINAL ) his or her property situation ; ( CARDINAL) whether the suspect has a permanent residence ; and ( CARDINAL ) other important circumstances .

Article CARDINAL § CARDINAL provides that detention and bail can be imposed only by a court decision on an application by the investigator or the prosecutor or of the court ’s own motion during its examination of the criminal case . The court can replace detention with bail , also on an application by the defence .

Under LAW , during the pre - trial proceedings of a criminal case the detention period may not exceed DATE , except for cases prescribed by the LAW . During the pre - trial proceedings of the criminal case the detention period is suspended on the date when the prosecutor transmits the criminal case to the court or when detention is revoked as a preventive measure .

Article CARDINAL § CARDINAL provides that “ bail ” is the money , shares or other property deposited with the court by CARDINAL or more persons in order to secure the release of a person accused of a crime of minor or medium seriousness .

Pursuant to LAW , an application by the prosecutor or the investigator to have detention imposed or extended must indicate the reasons and grounds necessitating the suspect ’s detention . Materials substantiating the application must be attached to it .

Under LAW ) , the accused has the right to familiarise him or herself with all the materials of the case upon the completion of the investigation .

Under LAW ) , defence counsel is entitled to familiarise him or herself with all the materials of the case , to make copies of and take notes on any information contained in the case and in any volume , after the completion of the investigation .

Pursuant to Article CARDINAL , materials of the investigation can be made public only with the permission of the authority dealing with the case .

Pursuant to Article CARDINAL , the investigator , on determining that the materials gathered are sufficient to draw up the bill of indictment , informs the accused accordingly and decides where and when he or she can familiarise him or herself with the materials of the case .

Pursuant to LAW , where the prosecutor discovers , in court , circumstances that rule out a criminal prosecution , he or she must declare that the criminal prosecution against the accused is to be dropped . Such a declaration serves as a ground for the court to terminate the proceedings and stop the criminal prosecution .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

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

The applicant was born in DATE and lives in PERSON , a village in GPE - Cherkessia .

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

In DATE the applicant subscribed to a ORG savings scheme for buying a car . The ORG failed to provide the car , and the applicant had to apply to a court .

On DATE the GPE ORG of ORG awarded the applicant MONEY against ORG . On DATE the judgment became binding , but was not enforced .

On DATE the Presidium of ORG of GPE allowed the ORG ’s supervisory - review complaint , and quashed the judgment on the ground that the district court had misinterpreted material law .

Under LAW of DATE , a judgment must be enforced in DATE .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

In DATE the applicant , as a retired military officer , was granted the social tenancy of CARDINAL family apartments in a newly erected building , the construction of which had been partly sponsored by the municipal authorities and his former military detachment .

On DATE the applicant lodged a claim with ORG ( NORP міський суд GPE області ) alleging that the apartments in question had been provided to him in an uninhabitable condition ; he had renovated them at his own expense and was therefore entitled to receive pecuniary and non - pecuniary damages . In the course of the proceedings the applicant adjusted the amount of his claim on some twenty occasions . Military Detachment A-CARDINAL ( PERSON частина А-CARDINAL ) , ORG of ORG ( LOC комітет GPE міської ради ) , ORG “ LOC ( Акціонерне товариство « PERSON ) and ORG ( Виробничо-житлове ремонтно-експлуатаційне ORG ) were summoned into the proceedings as defendants . Subsequently the military detachment was substituted by ORG of GPE ( ORG ) .

On DATE ORG ordered an expert assessment of the state of the apartments . No hearings were scheduled DATE and DATE on account of the pending expert assessment .

On DATE the court rejected the applicant ’s claim . In particular , the court found that the applicant had not shown that the apartments in question had defects which were such as to make them uninhabitable . Moreover , having being aware of the state of the apartments before moving in , the applicant had not taken the opportunity to request alternative housing . Furthermore , he had never properly documented the defects he had repaired and the expenses he had borne .

On DATE ORG ( PERSON обласний суд )

On DATE , following the applicant ’s allegations about deterioration of his family members’ health on account of the state of the apartments , ORG ordered a medical expert assessment .

On DATE the ORG rejected the applicant ’s claim on similar grounds as in the judgment of DATE . Moreover , the court found that the claim had been lodged outside the statute of limitation .

Between DATE and DATE the ORG scheduled a total of CARDINAL hearings , QUANTITY of which were set up after DATE , the date , when the Convention entered into force in respect of GPE . CARDINAL of them were adjourned on account of the failure of CARDINAL or more of the defendants to appear or following a defendant ’s request for adjournment . CARDINAL hearings were adjourned to allow the court and the defendants to familiarise themselves with adjustments of the applicant ’s claims . CARDINAL hearings were adjourned on account of the applicant ’s requests for adjournments . CARDINAL adjournments were initiated by the court for various reasons . Most hearings were scheduled at intervals from DATE . On CARDINAL occasions the intervals between hearings were DATE .

On DATE ORG upheld the judgment of CARDINAL DATE . In DATE the applicant appealed in cassation .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .

On DATE the FAC районний відділ УМВС FAC ORG області ) filed with ORG an administrative charge against the applicant . In particular , they established that on DATE TIME the applicant and Mr V. S. had visited Mr E. Sh . , the president of ORG ( ORG районний суд GPE області ) to discuss Mr V. S. ’s civil case . The applicant started arguing with Mr PERSON . and refused to leave his office when requested to do so . Mr PERSON . having stepped out into the corridor , the applicant followed and continued to say that the judicial officers were unprofessional and lacked integrity . Several other judges and personnel heard the noise and came to the area seeking to calm the applicant down . The police were called , but the applicant had left the court building before they arrived . The incident lasted for TIME .

On DATE the ORG found that the applicant ’s conduct could qualify as hooliganism under LAW of DATE , in force on the date of the incident , discontinued administrative proceedings and transferred the case to ORG ( прокурор м. ORG ) for a decision on initiating criminal proceedings .

On DATE the new Criminal Code entered into force .

On DATE criminal proceedings were instituted against the applicant , who was charged with hooliganism under the old Criminal Code .

On DATE the investigator discontinued criminal proceedings on account of absence of corpus delicti in the applicant ’s conduct .

On DATE the supervising investigator annulled this decision and transferred the case to another investigator .

On DATE the new investigator altered the charge , from hooliganism to insult of a judicial officer , pursuant to the provisions of the old Criminal Code . He noted in particular that the charge of hooliganism implied disruption of public order , while in the case at issue there was no evidence that the incident , which had taken place at lunchtime , had in fact disrupted the court ’s operation . On the same date the investigator discontinued proceedings in view of the fact that following adoption of the new Criminal Code , insulting a judicial officer was no longer a criminal offence .

On DATE the prosecutor ’s office annulled this decision and reopened the proceedings . The case was transferred to another investigator .

On DATE the new investigator discontinued proceedings on essentially the same grounds as above .

On DATE the investigator altered the charge to that of hooliganism under the new Criminal Code .

On DATE the applicant was placed under an obligation not to abscond . Subsequently the case was transferred to ORG .

On DATE the ORG remitted the case for additional investigation . In particular , the court found that the case file contained insufficient information on whether the incident had disrupted the normal operation of LOC .

On DATE ORG upheld this ruling . The case was assigned to a new investigator .

On DATE the investigator , having found no evidence that the court ’s operation had been in fact disrupted by the applicant ’s conduct , altered the charge to insulting a judicial officer pursuant to LAW of DATE and discontinued the proceedings in view of the decriminalisation of the offence in question .

On DATE the supervising investigator ordered the reopening of the criminal proceedings .

On DATE the investigator discontinued the proceedings on account of absence of any appearance of a criminal conduct on the part of the applicant .

On DATE the prosecutor ’s office annulled this decision .

On DATE the investigator transferred the case to ORG , requesting it to absolve the applicant of criminal liability in view of the decriminalisation of the offence .

On DATE the ORG dismissed this request . In particular , it found that since the formal criminal proceedings against the applicant had been instituted after the entry into force of the new Criminal Code , the applicant could not have been charged under the old Code in the first place . The court returned the case to the investigation authorities for rectification of the formulation of the charges . It further ordered that the applicant remain under an obligation not to abscond .

On DATE ORG upheld this ruling .

By DATE no final decision had been taken in respect of the applicant ’s case .


The applicant was born in DATE and lives in GPE .

On DATE the applicant was dismissed by her employer , ORG ( “ the Administration ” ; PERSON районна державна адміністрація ) from her position as a senior logistics specialist ( головний спеціаліст організаційного відділу секретаріату ) on account of her failure to meet the requirements of the post .

On DATE the applicant instituted civil proceedings for reinstatement in ORG ( the “ ORG ” ; PERSON районний суд ORG області ) .

On DATE the court left the applicant 's claim without consideration on account of her failures to appear for the hearings . The applicant did not appeal against this decision within the statutory time - limit .

On DATE following the applicant 's petition , the GPE Deputy Prosecutor instituted a protest , seeking to re - open the proceedings on account of the court 's failure to inform the applicant of the date of the last hearing .

On DATE the ORG of ORG ( the “ ORG ” ; GPE обласний суд ) found the protest substantiated , quashed the decision of CARDINAL DATE and remitted the case for a fresh consideration to ORG .

On DATE ORG dismissed the applicant 's reinstatement claims . It found , however , that the dismissal record was incorrect , as in fact the applicant had not passed the probationary period . Accordingly , the court awarded the applicant CARDINAL NORP hryvnyas ( ORG ) in non - pecuniary damage . Both parties appealed .

On DATE ORG upheld the judgment , but reduced the amount of compensation to ORG CARDINAL . The applicant appealed in cassation .

On DATE ORG rejected the applicant 's request for leave to appeal in cassation against the court decisions of DATE and DATE .

On DATE ORG ( “ the Bailiffs ” ; ORG виконавчої служби Городоцького районного управління юстиції ) initiated enforcement proceedings for the judgment of DATE .

On DATE the applicant was paid ORG DATE .

On DATE the Bailiffs terminated the enforcement proceedings in view of the debtor 's lack of funds .

In DATE the applicant instituted administrative proceedings against the Bailiffs complaining about their failure to collect the judgment debt due to her . These proceedings ended on DATE by a ruling of ORG , upholding the decision to leave the applicant 's complaint without consideration . The applicant did not appeal in cassation .

On an unspecified date the enforcement proceedings were re - opened and on DATE the applicant was paid the remaining award of ORG CARDINAL .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the town of PERSON , GPE region , GPE .

In DATE the applicant instituted proceedings in ORG against her former employer , ORG ( Шахта « PERSON « PERSON ) , for salary arrears and compensation for moral damage . On DATE the court awarded the applicant CARDINAL NORP hryvnias ( “ ORG ” ) ( Рішення Краснолуцького міського суду PERSON області ) .

NORP In DATE ORG ( ORG виконавчої служби ORG міського управління юстиції ) initiated the enforcement proceedings .

NORP By letter of DATE , ORG informed the applicant that the debtor 's accounts had been frozen , that it was impossible to seize the debtor 's property because the debtor was a ORG enterprise .

On DATE ORG initiated bankruptcy proceedings against the debtor enterprise .

The applicant received UAH CARDINAL ; according to her , the rest of the debt remains unpaid .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .