The applicant , PERSON , is a NORP national , who was born in DATE and lives in the town of LOC ORG . The respondent Government are represented by PERSON , ORG at ORG .

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

In DATE the applicant moved from GPE to LOC due to military hostilities . She left behind her CARDINAL - room flat and other property .

On DATE the Government of GPE enacted a regulation which allowed payment of compensation to persons who had sustained damage during military hostilities in GPE .

In DATE the applicant asked for and obtained compensation in accordance with the ORG ’s regulation of DATE .

Considering that the compensation obtained had been insufficient , she sued the ORG and ORG of GPE for a bigger compensation .

On DATE the ORG of GPE , in the presence of the parties , dismissed the action . The court considered that the sum paid to the applicant had been calculated in accordance with the domestic law .

On DATE the ORG of GPE sent a copy of the judgment to the applicant .

The applicant appealed to ORG and asked to be summoned to the appeal hearing .

On DATE the ORG of GPE sent a letter to the applicant advising her of the date , time and place of the appeal hearing . The appeal hearing was fixed for DATE . The district court also requested the applicant to submit CARDINAL copies of her statement of appeal .

On DATE the applicant sent her statement of appeal to ORG .

On DATE the applicant sent a letter to the President of ORG of GPE which read as follows :

“ Your court informed me that my case against the Government of GPE and my statement of appeal would be heard in ORG on DATE . Therefore , I ask you to send me the judgment of the appeal [ court ] to the following address ... ”

On DATE the ORG of GPE sent summons to the applicant for the appeal hearing of DATE . The applicant claims that she only received the summons on DATE .

On DATE ORG held the hearing in the absence of the parties and upheld the judgment of DATE .

On DATE the ORG of GPE sent a copy of the judgment of DATE to the applicant .

LAW in force at the material time ) required that a judge or the president of the district court having received an appeal against a judgment should inform the parties of date and place of the appeal hearing and send the case file to the appeal court .

Article CARDINAL provided that summons should be served on the parties and/or their representatives in such a way that they had enough time to appear at the hearing and prepare their case . Where necessary , the parties could be summoned by a phone call or a telegram .

Pursuant to LAW , if a party to the case failed to appear and there was no evidence that the party had been duly summoned , the appeal hearing had to be adjourned . If a party to the case failed to appear in spite of the fact that the party had been duly summoned , the court could decide the case in the party ’s absence .


Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicants were born in DATE . The first applicant lives in GPE . The second applicant lived in the same town before his death .

At the material time the applicants worked at ORG ( ВАТ « Содовий завод GPE ) .

On DATE and CARDINAL DATE the ORG awarded the first applicant PERSON and CARDINAL NORP hryvnias ( ORG ) in salary arrears to be paid by the above - mentioned company .

On DATE and DATE the ORG awarded the second applicant ORG MONEY CARDINAL in salary arrears to be paid by the above - mentioned company .

These decisions became final and ORG instituted proceedings to enforce them .

On DATE ORG ( after DATE the Donetsk Regional Commercial Court ) instituted insolvency proceedings against the debtor company . On DATE the court , having declared the debtor insolvent , ordered its liquidation , which is still pending .

The decisions given in the applicants ' favour have not been executed .

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


The applicant is a NORP national , born in DATE and living in GPE , GPE .

A.

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

The applicant , who has run a company specialising in the research , design and manufacture of equipment for the broadcasting industry since DATE , wanted to set up a short wave radio station which would broadcast scientific , technological and media news . None of his proposed programmes had any political content , but were aimed at an audience interested in the technical side of radio . ORG has a short wave radio licence to broadcast in GPE and a few other independent stations are also licensed , for example , ORG .

The applicant wrote to ORG on DATE ( having been told on the telephone that this was the relevant department ) to apply for a short wave radio licence . Over DATE , the applicant wrote CARDINAL letters in pursuit of his licence to ORG , ORG and other relevant entities . The ORG 's line of reply was to acknowledge the applicant 's interest without giving any definitive response to his request . On DATE , ORG wrote to the applicant saying :

" ... the ORG continues to consider the broadcasting policy issues which your proposal for the licensing of short wave frequencies has raised .

I am sorry that there has been such a long interval since your original proposal was received and that you still await a decision . ...

While I am sorry that the resolution of other domestic broadcasting policy issues have been given greater priority than your request to use short wave frequencies , I am not in a position to give you a firm decision on your proposal . ORG is , however , looking at your ideas and we are discussing them with ORG which has overall responsibility for the use of the radio spectrum .

I shall write to you again when a decision has been taken . "

Following this letter , the applicant applied for judicial review of the failure by ORG to take a final decision . In his affidavit to ORG , the applicant explained that setting up a station would be a much more difficult prospect now and he would no longer wish to do so , but that this was only as a result of the ORG 's refusal to reach a clear decision at an early stage . Leave to apply was refused by ORG on DATE , there being no arguable basis for judicial review . Mr Justice PERSON , refusing leave , observed :

" Whilst I can understand your frustration at the failure of the authorities concerned to consider your proposals more favourably and speedily to the point where ( as I understand it ) it is now really too late to do anything , I am afraid I can see no arguable basis for judicial review . "

PERSON Relevant domestic law and practice

ORG ( “ the NORP ” ) , has overall responsibility for the management of the civil electromagnetic spectrum in GPE , and an obligation to ensure that it is used efficiently . The ORG represents GPE at ORG ( “ ORG ” – an agency of ORG ) , who order the way in which the radio spectrum can be shared effectively between nations , such that CARDINAL country ’s transmissions do not interfere with those of another . The ORG also has responsibility for deciding how the civil use of the radio spectrum in GPE is divided between different users , such as broadcasting , telecommunication , public safety services ( Police , Ambulance etc ) and hobby radio , etc .

A quantity of the radio spectrum is allocated for radio broadcasting purposes . This is in turn divided by the Secretary of ORG ( under the provisions of ORG of DATE ) between the ORG ( the public service broadcaster ) and ORG ( “ the ORG ” ) . The ORG is a body established by statute ( section CARDINAL of LAW DATE ) , and is responsible for licensing and regulating independent radio services within GPE . It has statutory duties to increase choice for different tastes and interests , to encourage range and diversity and to ensure fair and effective competition in the provision of sound broadcasting .

All radio transmissions require either a licence or a licence exemption under LAW DATE ( as amended ) and , for commercial broadcasts , a licence under LAW of DATE . Licences are awarded by the ORG under open competition . In general terms national licences are considered on the basis of the highest cash bid , whereas the award of local licences takes into account the needs of the community to be served . The ORG seeks the agreement of the ORG and the ORG , so that neither GPE broadcasting services nor non - broadcasting users of the radio spectrum will be adversely affected . In addition the agreement of neighbouring countries is sought . After these negotiations , the ORG is able to issue a licence under LAW . This system of licensing does not extend to short wave frequencies .

Under section CARDINAL of LAW DATE , it is a criminal offence to provide an independent radio service without an appropriate licence .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

On DATE preliminary investigations on the suspicion of murder were instituted against the applicant . On DATE a ORG ( Geschworenengericht ) at ORG ( PERSON ) convicted the applicant of murder and sentenced him to DATE imprisonment . On DATE ORG ( Oberster Gerichtshof ) dismissed the applicant 's plea of nullity and appeal against sentence .

On DATE the applicant requested the re - opening of the criminal proceedings against him . On DATE ORG dismissed the applicant 's request . On DATE ORG ( Oberlandesgericht ) granted the applicant 's appeal and reopened the criminal proceedings against him . At the same time the applicant was released .

On DATE ORG filed a bill of indictment charging the applicant with murder . On DATE ORG accepted the applicant 's objections to the indictment .

On CARDINAL DATE ORG filed a new bill of indictment against the applicant . On DATE ORG dismissed the applicant 's objections to it .

On DATE ORG dismissed a request by ORG to transfer jurisdiction in the case to a court in GPE .

On DATE the applicant filed a request under LAW of LAW ( PERSON ) with ORG . He complained about the inactivity of ORG and requested ORG to order ORG to fix a date for the trial . On DATE ORG refused this request . ORG found that ORG had to wait for further expert opinions concerning a DNA test of hair and skin parts which had been found on the victim and the applicant ’s clothes .

On DATE the DNA test results were transmitted to the court .

On DATE the Presiding Judge of ORG fixed the date of the applicant 's trial for DATE .

The applicant 's trial commenced on DATE and finished on DATE . On CARDINAL DATE ORG acquitted the applicant .


The applicant , PERSON , is a NORP national , born in DATE and living in GPE . The respondent Government are represented by their Agent Ms Lidija PERSON .

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

The applicant served in ORG ( ORG ) and in DATE retired from service . His military pension was assessed according to his rank and DATE of service and was paid from ORG . The payments terminated in DATE , following the dissolution of GPE .

On DATE the ORG passed a law on changes of the Act incorporating into NORP law the former federal law regulating the pension insurance for military personnel ( hereinafter the “ Military LAW ” - Zakona o preuzimanju saveznih zakona iz oblasti mirovniskog i invalidskog osiguranja vojnih osiguranika koji se u PERSON primjenjuje kao republički ORG CARDINAL/CARDINAL ) . This new law prescribed that the former ORG pensions were to be assessed to CARDINAL % of what they received in DATE .

Accordingly , on DATE , ORG , ORG fond mirovinskog i invlidskog osigurnaja radnika PERSON , Područna služba u GPE ) , assessed the applicant ’s pension , as from CARDINAL October CARDINAL , to PERCENT of the amount he had received in DATE . After the ensuing applicant 's appeal was dismissed , he instituted proceedings with ORG ( Upravni sud PERSON ) . The applicant claimed that the decisions to decrease his military pension were unlawful and impaired his property rights . He maintained that since the NORP authorities had incorporated into the NORP legal system the NORP federal law on the payment of the former federal military personnel ’s pensions GPE was obliged to pay his pension in full amounts .

ORG dismissed the applicant ’s claim on DATE . It found that the lower bodies applied the provisions of the laws regulating pension rights of the former ORG officers correctly . They based their decision on the LAW of DATE which provided that the former ORG pensions were to be assessed to PERCENT of what they received in DATE . Furthermore , the applicant 's property rights were not impaired by the NORP authorities as ORG stopped paying the applicant 's pension . The NORP authorities accepted the payment of his pension according to the relevant provisions of the Acts regulating that matter .

According to the applicant , in his claim of CARDINAL DATE , he challenged both the constitutionality of the decisions of the administrative bodies and ORG which reduced his military pension , as well as the constitutionality of the DATE Act that served as a basis for the reduction of his pension .

According to the Government , on DATE , the applicant lodged a constitutional claim challenging only the constitutionality of DATE Act that served as basis for the reduction of his pension , while he failed to challenge the lower bodies’ decisions as such .

On DATE ORG ( Ustavni sud PERSON ) terminated the proceedings concerning the applicant 's complaint . In its decision the court stated that it terminated the proceedings concerning the constitutionality of various laws enacted in DATE and DATE , regulating pension rights of the former ORG officers , as on DATE the ORG had adopted a new law concerning that matter - the Former ORG ( Zakon o ostvarivanju prava iz mirovnskog i invalidskog osiguranja pripadnika bivše ORG no . CARDINAL/CARDINAL ) .

The relevant provisions of the DATE LAW on ORG ( hereinafter the “ DATE LAW ” - Ustavni zakon o PERSON , ORG CARDINAL/CARDINAL ) read as follows :

“ Every person has a right to institute proceedings challenging the constitutionality of the laws ... ”

“ Each person whose rights have been violated by a decision based on the legislation declared unconstitutional or unlawful may ask the body that took the decision to vary it ... ”

“ The Constitutional Court shall terminate proceedings concerning the constitutionality of legislation that has been repealed or brought into line with the LAW and statute law while those proceedings are pending before ORG . ”

“ Every person , who considers that any of his constitutional rights have been violated by a decision of judicial or administrative body or any other body invested with public authority , may lodge a constitutional complaint with ORG . ”

“ By a decision accepting a constitutional complaint the Constitutional Court quashes the contested decision and remits a case for re - trial . ”


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Ganna Yudkivska;Giorgio Malinverni;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant joined the GPE police force . In DATE he became an officer in the criminal investigation department of GPE police section no . CARDINAL .

On his application form , the applicant stated that on DATE he was informed by his hierarchical superior that he was required to go to ORG headquarters ( “ the ORG ” ) for questioning .

In his written observations to ORG of DATE the applicant stated that at TIME on DATE , while he was on leave , a colleague from GPE police section no . CARDINAL informed him by telephone that he was required to attend the ORG on DATE ; he was not given any additional information .

At TIME on DATE the applicant met CARDINAL colleagues in the courtyard of the ORG headquarters . They were then asked to enter the building at TIME At the entrance , a police officer entered the particulars of the applicant and his colleagues in a logbook .

The applicant and his colleagues were taken to a meeting room on the ground floor of the building . Shortly afterwards ORG , a military prosecutor , entered and asked them to make written statements on the circumstances in which they had met CARDINAL individuals : ORG and PERSON The prosecutor then left the room and returned at DATE TIME to collect the statements . After reading them , the prosecutor allegedly began to threaten the applicant and his colleagues with pre - trial detention . The prosecutor left the room again . CARDINAL or five masked and armed gendarmes burst in . CARDINAL of the gendarmes asked the applicant and his colleagues to take out their mobile phones and to put them on a table next to another gendarme . They were also informed that they were allowed to leave the room to go to the toilet or smoke a cigarette only individually and if accompanied by an armed gendarme .

At TIME the applicant and his colleagues asked for permission to leave the room to purchase water and food . After obtaining the prosecutor ’s permission , a gendarme collected money from the police officers and went to buy the requested groceries .

NORP Throughout this time , the applicant was not assisted by either a lawyer of his own choosing or an officially appointed lawyer . He was unable to contact anyone outside the building .

On the application form , the applicant stated that he had managed to contact a lawyer at TIME

In his written observations to ORG , the applicant alleged that towards TIME , he and CARDINAL of his colleagues had been taken to the prosecutor ’s office on the first floor . The prosecutor , another man and CARDINAL women were present in the office . The prosecutor allegedly suggested to the applicant that he state that the commanding officers at GPE police section no . CARDINAL were guilty of corruption . He added that in exchange , the applicant would not be placed in pre - trial detention and would be able to see his family again soon . The applicant asked for assistance from a lawyer of his choosing . The prosecutor replied that the QUANTITY women present were officially appointed lawyers and asked him to select CARDINAL of them to assist him . The applicant refused . He claimed that the prosecutor began to “ insult him ” and to threaten that if he did not cooperate , he would be placed in detention and would be forbidden family visits . He was taken out of the office by a gendarme , who was instructed to prevent him from speaking to anyone and from going to the toilet without the prosecutor ’s permission .

At the public hearing on DATE the applicant stated that at an unspecified time his family , who knew that he was to go that day to the ORG and who had not seen him come home , had contacted the lawyer ORG , who asked his colleague , PERSON , to assist the applicant at the prosecution service LOC . Mr PERSON arrived at TIME and was allowed to meet with the applicant .

At CARDINAL to TIME on DATE the applicant was again taken into the prosecutor ’s office . The prosecutor filled in a pre - printed form setting out the charges against the applicant and read it to him . In response , the applicant stated that he did not acknowledge the acts of which he was accused and that he stood by his initial statement . The applicant signed the form in the presence of an officially appointed lawyer , Ms GPE The prosecutor also served on him a warrant for his pre - trial detention , issued on DATE , which mentioned that his detention had been ordered for DATE , namely from DATE .

At TIME , in the presence of PERSON , the lawyer chosen by the applicant , the prosecutor informed him of the order for his pre - trial detention . He also outlined to the applicant the evidence against him in support of his detention , namely statements by his colleagues . The order was based on LAW ( h ) of LAW ( “ the ORG ” ) . Referring to the relevant legal texts , the prosecutor indicated that the acts of which the applicant was accused amounted to the offences of criminal conspiracy , accepting bribes and aiding and abetting aggravated theft . The relevant part of the order was worded as follows :

“ On an unspecified date in DATE or DATE , a date that will be determined precisely [ at a later stage ] , [ the applicant ] , along with several colleagues from police section no . CARDINAL , caught several persons in the GPE district in the act of transporting in a FAC QUANTITY of petrol that had been siphoned from pipelines . They then asked for and received the sum of CARDINAL lei from GPE and ORG in exchange for not opening a criminal investigation against them and allowing them to continue their unlawful activity .

The fact that the suspect / accused committed these criminal acts is proved by the following evidence :

- witness statements ;

- records of confrontations ;

- statements by the accused persons ;

- audio recordings ;

- photographs ;

- records of photo - based identification procedures .

Given that the conditions laid down in LAW ( h ) ORG have been met , namely that the offence committed is punishable by CARDINAL eighteen years’ imprisonment and that the accused ’s release would pose a threat to public order and to the conduct of the investigation in this case , since the accused is a police officer and could use this fact to influence the persons who are to be questioned ;

On the basis of LAW , LAW , LAW ( h ) , LAW ORG [ the prosecutor ] decides that :

The suspect / accused is to be held in temporary pre - trial detention ... for DATE ;

Pursuant to LAW ORG , the detention referred to above shall commence at TIME on DATE and end at TIME on DATE .

A warrant for temporary pre - trial detention will be issued ... from DATE ... ”

At TIME the applicant was taken to a room in the basement of the building where CARDINAL other colleagues were present . Shortly afterwards he was transferred to ORG .

During DATE the ORG was informed of thefts of petroleum products from ORG pipelines on the outskirts of GPE , committed in close collaboration with gendarmes and police officers . The questioning of several individuals on CARDINAL and DATE and photographic identification revealed the applicant ’s involvement in the operation . The prosecutor responsible for the case , ORG , decided to summon around CARDINAL people to give evidence on DATE .

On DATE the applicant and QUANTITY police colleagues were summoned at their workplace ( GPE police section no . CARDINAL ) to appear before the ORG in order to make statements for the purpose of a criminal investigation . The head of police of the CARDINALst GPE of GPE was also informed so that he would be aware of the police ORG absence from work on DATE and in order to ensure their presence at the ORG .

At TIME the following morning the applicant and his colleagues went to the NAP LOC . The military prosecutor PERSON greeted them in a room on the ground floor of the building and informed them that they were to be questioned in the context of a preliminary investigation ( acte premergătoare ) into their suspected involvement in the fraudulent removal of petroleum products from oil pipelines . All of the police officers verbally denied any involvement in such activity , but agreed to make a written statement on the subject . As a result , they received a CARDINAL - point questionnaire which they answered on a plain sheet of paper . During this period the prosecutor left the room and went to his office , on the first floor of the building , to continue procedural formalities with regard to other individuals involved in the case .

Towards TIME , when all of the officers had finished writing their statements , the prosecutor returned to the room and informed them that , by a decision of DATE , a criminal investigation had been opened in the case against CARDINAL of the police officers , including the applicant , for accepting bribes , aiding and abetting aggravated theft and criminal conspiracy . The other QUANTITY police officers were free to leave the NAP LOC .

The prosecutor asked the QUANTITY police officers concerned to make new statements and to take part in confrontations with other persons . He also informed them that they were entitled to be assisted by counsel of their own choosing . Some of the police officers contacted lawyers , while the prosecution service asked ORG to ensure that lawyers could be officially appointed for the others , including the applicant .

The applicant waited voluntarily in the ORG premises in order to have his legal situation clarified . He was not obliged to stay there , and was free to leave the LOC at any point in order , for example , to purchase water or cigarettes ; indeed , QUANTITY police officers , PERSON and PERSON , left DATE and did not return .

The applicant was at no time supervised or guarded . Gendarmes were present in the ORG LOC on DATE purely for the purpose of maintaining order . Furthermore , there was no separate entrance or special room for persons placed in police custody or in pre - trial detention .

At CARDINAL or TIME , after their chosen lawyers ( for CARDINAL of the police officers ) or officially appointed lawyers had arrived at the ORG headquarters , the prosecutor began questioning each of the officers in turn . This process lasted TIME .

At an unspecified time while being questioned , the applicant , assisted by GPE , an officially appointed lawyer , added to his initial statement made on a plain sheet of paper , confirming that he was a colleague of officers GPE and M.G.M. and that he had a normal relationship with them . On that occasion , the prosecutor noted on the sheet that the initial statement had been made at TIME

At an unspecified time the applicant made a new statement in the presence of the same officially appointed lawyer , this time on a pre - printed form bearing the words “ suspect / accused ” . The form indicated that the applicant had been informed of the acts of which he was accused and their legal classification , and of his procedural rights . A record was accordingly drawn up and signed by the prosecutor , the applicant and the officially appointed lawyer .

The prosecutor subsequently carried out several confrontations between suspects , accused persons and witnesses .

At TIME , by an order , the prosecutor decided to charge several police officers , including the applicant , with accepting bribes , aiding and abetting aggravated theft and criminal conspiracy .

At the same time , the prosecutor decided , by an order , to place the applicant in temporary pre - trial detention . A warrant for pre - trial detention was issued and served on him at an unspecified time . During TIME DATE the applicant was transferred to ORG .

The Government observed that the logbooks recording persons entering and leaving the ORG premises in DATE had been destroyed well before the present case had been communicated on DATE , the retention period being DATE , in accordance with the legal provisions in force .

On DATE , on the basis of Article CARDINAL § CARDINAL ( c ) , ( d ) and ( h ) ORG , the ORG asked ORG to extend by twentyseven days the pre - trial detention of the applicant and his CARDINAL co - accused , starting on DATE .

At TIME on DATE the applicant was taken to court . He alleged that his lawyer was given access to the case file only while the prosecution was presenting its request for an extension of the pre - trial detention . ORG ordered that the case be referred to ORG , which , in view of the military rank of CARDINAL of the co - accused , had jurisdiction .

By a judgment delivered in private on DATE , ORG , sitting as a single judge , granted the prosecution ’s request and extended the pre - trial detention of the applicant and the other co - accused by DATE .

ORG held , having regard to the case file , that there was evidence that the accused had committed the offences of criminal conspiracy , taking bribes , aiding and abetting aggravated theft and inciting others to give false evidence . It held that it was necessary to place the accused in pre - trial detention on grounds of public order , noting that they could influence witnesses and that they had taken steps to evade criminal proceedings and execution of the sentence . Lastly , it noted that the complexity of the case , the large number of accused and the difficulty in obtaining evidence were also to be taken into account .

On DATE , a warrant for pre - trial detention identical to that of DATE was issued in respect of the applicant .

The applicant and his co - accused lodged an appeal against the judgment , arguing that the court which had delivered it had not been legally constituted . The prosecution likewise submitted that the court had been incorrectly constituted .

By a final judgment of DATE ORG upheld the appeal , set aside the judgment and ordered the release of the applicant and his co - accused . It held that , in order to ensure greater transparency in the fight against corruption , PERSON no . CARDINAL of DATE had amended , with immediate effect , the procedural provisions set out in PERSON no . CARDINAL on the prevention , discovery and punishment of acts of corruption ( “ PERSON no . CARDINAL ” ) . Thus , LAW no . MONEY provided that a court ruling at first instance on the offences set out in that PERSON had to be composed of CARDINAL judges .

The applicant was not informed of the reasoning of that judgment .

The applicant was released on DATE .

On an unspecified date , the Procurator General of GPE lodged an application with ORG to have the final judgment of DATE quashed . He submitted that ORG had committed serious errors of law in its interpretation of the domestic legislation , resulting in an unsatisfactory solution to the matter .

The applicant stated that he had learned only on DATE , through the media , of the existence of the application to have the judgment quashed , and of the fact that the hearing had been scheduled for DATE .

At TIME on DATE the applicant attended the hearing , accompanied by CARDINAL lawyers who requested that the case be adjourned on the ground that neither the reasoning of the judgment of DATE nor the application to have that judgment quashed had been communicated to the applicant . ORG granted this request and , referring to the urgent nature of the case , adjourned the hearing until TIME

When the proceedings resumed the applicant submitted that the final judgment of DATE could only be challenged by means of an appeal in the interests of the law and not by an application to have it quashed , and that there were no plausible reasons to justify his pre - trial detention .

By a final judgment of DATE ORG , sitting as a bench of CARDINAL judges , upheld the application , quashed the judgment of DATE and , on the merits , dismissed the applicant ’s appeal on the ground that the aforementioned judgment had incorrectly interpreted LAW no . LANGUAGE . It considered that the application of the amendments to PERSON no . CARDINAL and to the ORG led to the conclusion that the legislature ’s intention had been to ensure a single set of rules concerning pre - trial detention , namely that it was to be ordered by a single - judge bench sitting in private , whatever the nature of the offence .

Having regard to the case file , which contained sufficient information to suggest that each of the persons under criminal investigation could have committed the offences with which they had been charged , ORG also held that their pre - trial detention was justified .

On DATE the applicant was placed in pre - trial detention .

By an interlocutory judgment of DATE , upheld on DATE by ORG , the territorial ORG ordered that the applicant be released and replaced his pre - trial detention by an order prohibiting him from leaving the country .

By a judgment of CARDINAL DATE ORG sentenced the applicant to CARDINAL GPE imprisonment , suspended , for taking bribes ( LAW taken together with LAW no . CARDINAL ) and harbouring a criminal ( LAW ) . By the same judgment , PERSON and PERSON , whose statements had been produced by the applicant , were sentenced to DATE and CARDINAL years’ imprisonment respectively for taking bribes and criminal conspiracy , and taking bribes and harbouring a criminal .

At the request of the ORG , on DATE the applicant produced the statements of CARDINAL of his police colleagues , PERSON and PERSON , who had also been present in the ORG LOC on DATE . Their statements had been taken by the applicant ’s lawyer on DATE .

M.T. ’s statement read as follows :

“ At TIME on DATE the duty officer of police section no . CARDINAL informed me by telephone that I was to attend the ORG at TIME on DATE , but I was given no additional information . At TIME on DATE , outside the ORG LOC , I met several colleagues including PERSON . Shortly afterwards , we were invited to enter the building . At the entrance , a gendarme asked us for our identity documents so as to note down our particulars in the logbook . I was taken with my colleagues to a room on the ground floor of the building . Shortly afterwards , a person entered the room and introduced himself as ORG , the military prosecutor . He gave us sheets of paper and pens and asked us to state whether and in what circumstances we had met CARDINAL people : ORG and PERSON He left the room , leaving us alone .

After TIME , GPE , the prosecutor , came back into the room and gathered up the statements . [ After having read the statements ] and noted that some [ of us ] had responded negatively , he became angry and very tense and threatened to place us in detention with our colleagues who had already been arrested . He then left the room . CARDINAL or five armed gendarmes ( masked and armed with machine guns and wearing bulletproof vests ) burst into the room . CARDINAL of the gendarmes , who had the rank of officer , asked us to get out our mobile phones and place them on a table next to another gendarme ; we were also told that we were authorised to leave the room only if accompanied by a gendarme . That situation lasted until TIME , when we asked for permission to leave the room to purchase food and water . We were asked to collect the money so that a gendarme could go and buy the groceries we had requested .

We were forbidden from contacting our families or anyone on the outside . Until TIME we were authorised to leave the room to use the toilet only individually and accompanied by an armed gendarme . We were not assisted by lawyers of our own choosing or officially appointed lawyers . At TIME , a gendarme took me with PERSON to an office on the first floor . Present in the office were the prosecutor GPE , the person who had taken us to the ORG LOC , another man and QUANTITY women . The prosecutor suggested to me and to PERSON that we state that the officers in charge of police section no . CARDINAL were guilty of corruption and were accepting bribes from thieves ... and assured us that if we were to make such a statement no action would be taken against us . Otherwise , we would be arrested . That being so , my colleague PERSON asked to be assisted by a lawyer of his choosing . The prosecutor replied that the CARDINAL women present , who were officially appointed lawyers , would assist them . PERSON refused their assistance and said that he would not make a statement . The prosecutor started to insult him , calling him a peasant , and told him that he would be arrested even if he did n’t make a statement and that he would never see his family again if he did n’t cooperate . PERSON was then taken from the office .

TIME , when I was taken to a room in the basement of the building , I saw PERSON in the corridor , near the door of the prosecutor ’s office , being guarded by an armed gendarme . At TIME on DATE PERSON was taken to the basement room . Shortly afterwards , we got into a windowless vehicle and were taken to ORG in GPE , escorted by gendarmes .

I would point out that I was not allowed any contact with my family and was not allowed to be assisted by a lawyer of my choosing . ”

In his statement , ORG confirmed the truth of PERSON ’s statement and described the course of events after DATE .

At the request of the ORG , on DATE the Government produced the statement of the prosecutor ORG , responsible for the proceedings brought against the applicant . Dated DATE , the relevant parts read as follows :

“ After having consulted ‘ the PERSON of the file on the criminal investigation , I wish to clarify the following :

- The following ‘ făptuitori’ [ ‘ alleged ORG or ‘ ORG , at a stage prior to the opening of proceedings against them ] , officers of police section no . CARDINAL , were summoned on the aforementioned date [ DATE ] by a written request sent to the head of police of the CARDINALst District of GPE : PERSON , PERSON , PERSON , GPE , GPE , ORG , PERSON , ORG , GPE , ORG , ORG , GPE , GPE and ORG

- The aforementioned persons were informed that they were to be questioned as ‘ făptuitori’ ( in the context of the preliminary investigation ) in connection with their involvement in the fraudulent extraction of petroleum products from oil pipelines . From the outset , all the police officers summoned verbally denied any involvement in this activity but agreed to make a statement in that regard . Consequently , they were given a CARDINAL - point questionnaire to which they responded in writing .

After having obtained their agreement and in the interests of the efficiency of the investigation , I decided that the statements would be made simultaneously in the ORG meeting room because it would have taken TIME to question them individually . I left the room while the statements were being drawn up because , as I was the only prosecutor working on the case , I had other investigative formalities to complete in my office .

- At TIME , when all the officers had finished writing their statements , I re - entered the room and informed them that a criminal investigation had been opened in the case against PERSON , PERSON , PERSON , GPE , GPE , ORG , PERSON , ORG and ORG I asked those persons to make new statements and to take part in confrontations . I explained to them that they were entitled to be assisted by lawyers of their own choosing and that , for those who did not have lawyers , officially appointed lawyers would be requested from ORG .

Accordingly , the persons wishing to be assisted by a lawyer of their own choosing were permitted to contact their lawyers , and officially appointed lawyers were requested from ORG for the others . The first lawyers arrived at the prosecution headquarters TIME after having been contacted and they were allowed to meet with their clients in the corridors of the building before the hearings and confrontations .

The police officers in respect of whom no criminal investigation had been opened were free to leave the ORG and return to their place of work .

In addition to the above - mentioned ‘ făptuitori’ , police officers PERSON , C.M.E. , GPE and ORG were summoned to appear as ‘ făptuitori’ at the prosecutor ’s office on DATE . The same procedure was followed in respect of those police officers , since they were also the subject of a criminal investigation .

- Before the lawyers for the QUANTITY police officers under investigation arrived ( that is , before TIME ) , I completed other investigative formalities in my office such as questioning , re - examination or confrontation , in respect of other persons , for example ORG , PERSON and PERSON , some of whom were already in pre - trial detention .

- A series of witnesses , including GPE , GPE and GPE , were summoned on DATE in the same case .

- At CARDINAL or TIME I started questioning the QUANTITY police officers , as suspects , in the presence of their lawyers . Each suspect made CARDINAL separate statements ( CARDINAL written on a plain sheet of paper and another on the form designed for suspects ) , signed by their lawyers .

I recall that none of the CARDINAL suspects admitted any involvement in the criminal activities at issue , even though their involvement had been established on the basis of evidence gathered earlier .

The CARDINAL suspects were questioned for CARDINAL to four hours .

- Because several confrontations were needed , the CARDINAL suspects , assisted by lawyers of their choosing or officially appointed lawyers , participated voluntarily in CARDINAL confrontations , during which they were presented with extracts of transcripts of their telephone conversations which had been intercepted and recorded .

The confrontations went on for TIME , until TIME , when a prosecution was brought against the CARDINAL suspects and an order for their detention was made .

Note : The special nature of the criminal investigation in this case required that repeated questioning and confrontations be carried out on DATE in question , that being the only way in which the truth could be established .

Another reason for carrying out all those measures on DATE was the need to ensure the confidentiality of the results of the investigation , given that there was already sound evidence that the suspects and the accused were transmitting information about the investigation with a view to concealing the truth and obstructing the criminal investigation .

- ... as far as I recall , in DATE , just as now , the identity cards of people summoned to attend the prosecutor ’s office were not retained at the entrance since the prosecutor had to identify each person before every interview .

- ... the accused PERSON completed the formalities described above . ... Thus , until TIME , alongside his colleagues , he drew up his first statement without the prosecutor being present in the room ; the room was on the ground floor of the building . Later , PERSON waited for his lawyer to arrive ; after that , he took part in CARDINAL sets of questioning and various confrontations ( the gendarmes were indeed present , but their purpose was to keep order , and no one was guarded individually ; anyone could , without being guarded and without having to advise anyone , leave the prosecution service headquarters because no permission was required at the exit ) .

Personally , as the prosecutor , I do not remember the names of the CARDINAL police officers who left the prosecution service headquarters during that period without advising anyone but I do remember that they disappeared and could not be found , which is why a general search warrant covering the whole country was issued in respect of them . They were found DATE and brought to the prosecution service , which detained them . They were then brought before the court , which ordered that they be placed in pre - trial detention .

- ... there was not in DATE , nor is there now , a separate entrance for persons under investigation or arrest , nor is there any special room in which such persons could wait to be called into the prosecutor ’s office in connection with activities forming part of criminal investigations .

- ... the accused , PERSON , was summoned on DATE by a letter sent by the ORG to the head of police of the CARDINALst GPE of GPE ( a copy is attached to this report ) , that being a legal form of service of a summons under LAW .

Once charged , PERSON was provided with legal assistance , in accordance with the procedural requirements , given that before a criminal investigation is opened , the law does not require the presence of a lawyer and he did not request the assistance of a lawyer . Furthermore , neither did the other police officers request assistance from a lawyer when drawing up their initial statements .

PERSON did not specifically ask for permission to leave the ORG headquarters as he was under no obligation to do so and there were no checks on anyone wishing to leave the building without informing the investigating prosecutor .

PERSON was therefore never specifically told that he could leave the ORG headquarters but he was asked , along with other police officers , to participate in the activities forming part of the criminal investigation and he agreed to do so .

... PERSON was provided with information and legal assistance as was his entitlement in law ; he agreed to participate in activities forming part of the criminal investigation .

Before PERSON was charged , several other accused , for example PERSON , GPE , GPE , GPE , GPE , ORG , ORG , ORG , GPE , GPE , GPE , GPE , GPE and ORG , had admitted committing the offences with which they had been charged and confirmed the offences committed by PERSON .

- ... I worked alone on this case file on DATE and was not assisted by other prosecutors or police officers . ”

The relevant provisions of the ORG , in force at the material time , read as follows :

“ The person against whom a prosecution is brought is a party to the criminal proceedings and is referred to as the accused . ”

“ Any person who has knowledge of a fact or circumstance that might be useful in establishing the truth in the criminal proceedings may be heard as a witness . ”

“ CARDINAL . The criminal investigation authorities may conduct any preliminary investigation measures .

The record of execution of any preliminary investigation measure shall constitute evidence . ”

“ The criminal investigation authority to which an application is made in accordance with any of the arrangements set forth in Article CARDINAL shall order , by decision ( rezoluţie ) , the opening of a criminal investigation where the content of that application or the preliminary investigation do not disclose any of the grounds not to prosecute , as provided for in DATE , with the exception of the ground set out under letter ( b)CARDINAL . ”

“ The suspect is a person who is the subject of a criminal investigation , until such time as a prosecution is brought . ”

“ CARDINAL . The prosecutor shall decide to prosecute [ on a proposal by the criminal investigation authority ] after having examined the case file .

If the prosecutor agrees with the proposal , he or she shall bring the prosecution by means of an order ( ordonanţă ) . ”

“ A person who is called upon to testify as a witness must appear at the place , on DATE and at the time indicated in the summons . He or she is bound to reveal everything that he or she knows about the facts of the case . ”

“ CARDINAL . The summons ... contains the following wording :

( b ) the first name and surname of the person summoned , the capacity in which that person is being summoned and the subject matter of the case . ”

“ Any person who , despite having been summoned to appear , has not done so and whose testimony is deemed to be necessary may be brought before the criminal investigation authorities or before a court by virtue of a warrant to appear drawn up in accordance with the provisions of LAW ORG .

The suspect or accused may be the subject of a warrant to appear even before a summons has been issued if the criminal investigation authority or the court finds , by a reasoned decision , that such a measure is required .

[ Provision inserted by PERSON no . ORG , which entered into force on DATE ] Any person appearing by virtue of the warrant referred to in DATE and QUANTITY of this Article shall be available to the judicial authorities only for such time as is required to question them , save where an order has been made for them to be placed in police custody or pre - trial detention . ”

“ CARDINAL . In cases concerning offences which are punishable by life imprisonment or an prison sentence , in order to ensure the proper conduct of the criminal proceedings and to prevent the suspect or accused from evading the criminal investigation , trial or execution of the sentence , CARDINAL of the following preventive measures may be taken :

( a ) police custody ;

( b ) prohibition on leaving the district ;

( c ) prohibition on leaving the country ;

( d ) detention .

The measure provided for in paragraph CARDINAL ( a ) of this Article may be imposed by the criminal investigation authority or by the prosecutor .

The measure provided for in paragraph CARDINAL ( d ) of this Article may be imposed by the court or , in the cases provided for by law , as a temporary measure , by the prosecutor within the framework of a criminal investigation .

In selecting the measure to be imposed , the authorities in question shall take account of its purpose , the danger to society posed by the offence , and of the health , age and previous record of the person involved and any other relevant circumstances . ”

“ The decision by which a preventive measure is adopted must list the facts which gave rise to the charges , their legal basis , the sentence provided for in the legislation governing the offence in question and the specific reasons for adoption of the preventive measure . ”

“ Any person held in police custody or pre - trial detention shall be informed immediately of the reasons justifying such a measure . That person shall be informed at the earliest opportunity , in the presence of a lawyer , of the suspicions against him or her . ”

“ CARDINAL . The criminal investigation authority may place a person in police custody if there are reasonable indications or evidence that he or she has committed an offence prohibited by the criminal law .

Police custody must be ordered in the cases provided for in Article CARDINAL , irrespective of the length of the applicable sentence for the alleged offence .

Reasonable evidence exists where , having regard to the existing information on a given case , the person under investigation may be suspected of having committed the alleged offence . ”

“ CARDINAL . Police custody may last for a maximum of TIME . The period during which the person was deprived of liberty as a result of the administrative measure of being taken to the police premises must be deducted from the duration of the police custody , as provided for by PERSON no . CARDINAL/CARDINAL on the organisation and functioning of the NORP police .

The order for placement in police custody must state the date and time at which police custody began and the order for release must state the date and time at which police custody ended .

Where the criminal investigation authority considers pre - trial detention necessary , it shall make a reasoned request to the prosecutor within TIME of police custody ... If the prosecutor considers that the statutory requirements have been met , he or she shall order the pre - trial detention within the time - limit set out in the first paragraph of Article CARDINAL .

Where the prosecutor has ordered police custody and considers that pre - trial detention is required , he or she must make the relevant order within TIME of the commencement of the police custody , in accordance with Article CARDINAL . ”

“ CARDINAL . Where the requirements of LAW , where any of the cases provided for in LAW is shown to exist , and where it is considered necessary for the purpose of the criminal investigation , the prosecutor , acting of his or her own motion or at the request of the criminal investigation authority , may , by a reasoned order setting out the grounds for and the duration of the measure and after having questioned the suspect in the presence of his or her lawyer , order that the party concerned be placed in temporary pre - trial detention for a maximum period of DATE .

The prosecutor shall also draw up a warrant for the temporary pre - trial detention of the suspect . ...

If the suspect is already in police custody , DATE shall be calculated from the date of the police custody warrant .

Within TIME of issuing the warrant for temporary pre - trial detention , the prosecutor shall submit the case file to the court ... , with a reasoned proposal as to pre - trial detention ...

If the conditions set out in the first paragraph of this Article are met , the court shall make an interlocutory order for the pre - trial detention of the suspect before expiry of the period of detention ordered by the prosecutor , indicating the specific reasons for that measure and its duration , which may not exceed DATE . ”

“ CARDINAL . Detention of the accused may be ordered where the conditions set out in Article CARDINAL are met and in any of the following cases :

( d ) sufficient evidence exists to conclude that the accused has attempted to impede the discovery of the truth by exerting pressure on a witness or an expert , by destroying or tampering with evidence or by taking other similar action ;

( e ) the accused has committed another offence or there is sufficient evidence to fear that he or she will commit another offence ;

( h ) the accused has committed an offence for which the law prescribes a prison sentence of DATE , where there is clear evidence that his or her continued liberty would constitute a threat to public order . ”

“ The duration of the detention of an accused may not exceed DATE , except where it is extended in accordance with a procedure prescribed by law ... ”

“ CARDINAL . Where the requirements of LAW , where any of the cases provided for in LAW is shown to exist , and where it is considered necessary for the purpose of the criminal investigation , the prosecutor , acting of his or her own motion or at the request of the criminal investigation authority , may , by a reasoned order setting out the grounds for and the duration of the measure and after having questioned the accused in the presence of his or her lawyer , order that the party concerned be placed in temporary pre - trial detention for a maximum period of DATE . ”

“ The detention of the accused may only be ordered after he or she has been questioned by the prosecutor and by the court , save where the accused has disappeared , is abroad or is evading the investigation or the trial ... ”

“ CARDINAL . The suspect , the accused and the other parties to the criminal proceedings are guaranteed the rights of the defence .

During the criminal proceedings , the judicial authorities shall ensure that the parties are fully able to exercise their procedural rights in the conditions laid down by law , and shall take the evidence necessary for their defence .

The judicial authorities shall inform the suspect or accused [ at the earliest opportunity and before they are questioned DATE provision inserted by PERSON no . ORG , which came into force on DATE ] of the charges against them and of their classification in law and shall afford them the opportunity to prepare and conduct their defence .

All parties are entitled to be assisted by counsel during the criminal proceedings .

The judicial authorities shall inform the suspect or the accused , before they make their initial statement , of their right to be assisted by counsel and shall take due note in the record of the hearing . In the conditions and in the cases provided for by law , the judicial authorities shall take all measures to ensure that the suspect or accused are provided with legal assistance where they have no counsel of their own choosing . ”

“ CARDINAL . The suspect or accused is entitled to be assisted by defence counsel during the criminal investigation and before the court and the judicial authorities are required to inform him or her of that right .

Legal assistance is mandatory where the suspect or accused is a minor , is carrying out military service , is a called - up reservist , is a pupil in a military institution , is held in a rehabilitation centre or a medical and educational institution or is being detained , even in connection with a different case .

Where legal assistance is mandatory and the suspect or accused has not taken the necessary steps to choose his or her defence counsel , measures shall be taken to designate an officially appointed lawyer . ”

“ CARDINAL . Where legal assistance is mandatory , the criminal investigation authority shall ensure that defence counsel is present while the accused is being questioned .

An accused who has been placed in pre - trial detention is entitled to contact his or her lawyer . Exceptionally , and in the interests of the investigation , the prosecutor , of his or her own motion or at the request of the investigation authority may , by a reasoned order , prohibit any contact with his or her lawyer , on a single occasion and for a maximum period of DATE .

The lawyer chosen by the suspect or accused or the officially appointed lawyer is required to provide that person with legal assistance . The criminal investigation authority or the court may bring to the attention of the relevant bar association any failure to fulfil that obligation in order that measures may be taken . ”

“ The Procurator General at ORG may , of his own motion or on an application by the Minister of Justice , apply for any final decision to be quashed . ”

“ Final decisions other than those referred to in the first paragraph [ the first paragraph concerns decisions to convict , to acquit or to discontinue proceedings ] may only be contested by an application to have them quashed if they are inconsistent with the law . ”

The Articles of the ORG governing applications to have decisions quashed were repealed by PERSON no . CARDINAL of DATE , which was published in ORG of DATE and entered into force on DATE .

As regards the preliminary investigation ( acte premergătoare ) , the criminal investigation authority is under no obligation to provide the party concerned , who at that stage has the status of “ făptuitor ” , with the assistance of a lawyer in respect of the measures taken during that period . That obligation arises only once the criminal proceedings during which the party concerned acquires the status of suspect or accused have been opened ( judgments no . CARDINAL of DATE and no . CARDINAL of DATE of ORG and Justice , ORG ) . At the preliminary investigation stage , the authorities are not authorised to carry out prosecution activities , but merely to take measures that do not require a legal decision strictly speaking ( judgment no . CARDINAL of DATE of ORG and Justice , ORG ) . If evidence is taken at that stage , such as , for example , witness statements , the questioning of the accused , or court - ordered expert reports , the proceedings will be null and void ( judgment no . CARDINAL of ORG and Justice , ORG ) .

ORG has confirmed on several occasions that the criminal investigation authority is not obliged to provide legal assistance when measures are taken at the preliminary investigation stage , on the ground that no evidence capable of being used during the subsequent criminal proceedings may be taken at this stage ( judgments no . CARDINAL , CARDINAL and PERSON ) . It has refrained , on the other hand , from making any comment on the authorities’ practice of conducting prosecution activities during the preliminary investigation phase , considering that that was an issue concerning the application of the criminal law and not a question of constitutionality ( judgment no . DATE ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr Z. GPE , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , ORG Attorney - General .

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

In DATE , after the applicant ’s house had been expropriated , ORG instituted non - contentious civil proceedings for determination of compensation to be awarded to the applicant in this respect .

On DATE ORG ( NORP sodišče v PERSON ) issued a decision concerning the compensation .

Until DATE , when the Convention entered into force with respect to GPE , the case had been CARDINAL times remitted to the first - instance court for re - examination .

On DATE the applicant ’s representative informed the renamed ORG ( ORG sodišče v PERSON ) that several related sets of proceedings had been instituted in the meantime . Since their outcome constituted a preliminary question ( predhodno vprašanje ) which was relevant for the determination of the compensation , the court , on DATE , stayed the proceedings ( prekinitev postopka ) .

DATE and DATE the court made several inquires on the progress of the case .

The hearing held on DATE was adjourned until CARDINAL May CARDINAL at the applicant ’s request .

On DATE and DATE the applicant lodged written submissions .

In the course of the proceedings , until DATE , the case was reassigned to CARDINAL different judges .

CARDINAL hearings were held DATE and DATE .

The hearing held on DATE was adjourned sine die due to the applicant ’s attempt to reach a settlement with the municipality .

The settlement has apparently not been reached and the proceedings are still pending before ORG .

The LAW on the Protection of the Right to a Trial without undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE Act ) became operational on DATE . Under its sections CARDINAL and CARDINAL , the right to a trial within a reasonable time is guaranteed for a party to court proceedings , a participant under the LAW governing non - contentious proceedings and an injured party in criminal proceedings .

Section CARDINAL of the CARDINAL Act provides for CARDINAL remedies to expedite pending proceedings – a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) DATE and , ultimately , for a claim for just satisfaction in respect of damage sustained because of the undue delay ( zahteva za pravično zadoščenje ) .

For a more detailed presentation of the relevant domestic law see Žunič v. GPE , ( dec . ) no . CARDINAL , § § DATE , DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia);Non-pecuniary damage - finding of violation sufficient

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant , a NORP national of NORP origin , was born in DATE and lives in GPE .

The applicant left GPE for GPE and GPE in DATE , with his mother . They arrived in GPE in DATE and lodged an asylum request there .

He claimed in his asylum proceedings that in DATE his father had been shot before his eyes . The applicant ’s father had worked in the security services of former President PERSON , a separatist leader , which was why he and his family had been persecuted . Furthermore , the applicant had been arrested CARDINAL times and only released after the payment of a ransom . The applicant stated that he had been ill - treated during those arrests and also that in DATE NORP soldiers had brutally beaten him in the course of an identity check .

On DATE ORG ( Bundesasylamt ) dismissed the applicant ’s asylum request as unfounded . It found the applicant ’s story contradictory and unconvincing and also found that he had failed to substantiate the existence of any real risk to himself .

It seems that the applicant ’s mother ’s asylum request was also dismissed , for the same reasons .

NORP The applicant and his mother appealed . However , after an oral appeal hearing , the applicant withdrew his appeal on DATE due to allegedly wrong legal advice he received at the time .

On CARDINAL DATE ORG ( Asylgerichtshof ) allowed the applicant ’s mother ’s appeal and granted her the status of a recognised refugee . As regards her flight story it found as follows :

“ The following has been established concerning the appellant and her reasons for fleeing :

The appellant claims to be a GPE national of NORP ethnic origin and , prior to fleeing , lived in the village of GPE in GPE .

It is credible that in the event of her return to her country of origin , the appellant would be under threat from ORG authorities or third parties on account of her membership of a particular social group . The appellant alleged that she was under threat from NORP and NORP security forces because of her husband ’s previous activities .

It has been found plausible that the appellant ’s husband was an officer for a NORP security agency and was murdered by the security forces on DATE in the village of GPE .

The findings as to the appellant and her reasons for fleeing result from the descriptions given by the persons examined at the hearing , which – in this respect – are consistent and credible . The appellant was able to give a description of her husband ’s murder that was clear and consistent with her previous statements , thereby conveying the impression of having actually experienced what she was talking about . The witness ORG gave a convincing statement confirming that the appellant ’s husband worked for a NORP security agency . ”

After referring to a number of general country reports on GPE and the north GPE region , ORG continued its legal assessment of the facts of the applicant ’s mother ’s case , as follows :

“ Regard being had to the findings concerning the situation of NORP in GPE , the appellant faces an objective risk of persecution in view of the facts established as to her reasons for seeking asylum . The appellant ’s husband was murdered in his homeland because of his work for a NORP security agency . Accordingly , the appellant is already known to the NORP and pro - NORP authorities and has come specifically to their attention . This means that she is in particular danger of being arrested by the security forces in GPE , and in such an eventuality there is a significant probability that she would be at risk of suffering human rights violations . Moreover , in view of the situation in GPE and the fact that the appellant is known by name to the authorities , it can not be assumed with sufficient certainty that she would not be exposed in other parts of GPE , for example , to attacks of any kind warranting asylum or that she could expect effective protection from the authorities against such attacks . Accordingly , the appellant – who , moreover , is suffering from post - traumatic stress disorder – has no reasonable internal flight alternatives available either . ”

On DATE the applicant lodged a new asylum request . In interviews conducted in the course of those asylum proceedings , the applicant repeated the initial reasons he had given for leaving GPE , and informed the authorities that he had married a NORP national in DATE and that the couple had QUANTITY children together , born in DATE and DATE . When asked if his mother was alive , the applicant stated his mother ’s name and that she lived with him and his family in the same apartment . He explained that his family therefore all lived in GPE and that he would like to be with them and work there . When the applicant was notified that he had not lodged any new facts , he stated that he knew that , but that he did not have any new facts to offer or information in that regard .

The applicant confirmed that he still had relatives and friends in GPE and that a cousin of his had returned to GPE from GPE in DATE . A brother of his father lived in ORG . Referring to his criminal convictions ( see paragraphs CARDINAL and CARDINAL below ) the applicant stated that he regretted his mistakes . Finally , in the interview on DATE the applicant stated , when asked whether he was taking any medication at the moment , that he was not .

On DATE ORG rejected the applicant ’s subsequent asylum request as res judicata . It established the applicant ’s identity and reiterated the proceedings in his respect . In the context of the applicant ’s private and family life in GPE , ORG referred to his mother , wife and children , confirming that they were all recognised refugees in GPE and citing their file numbers . Indicating various country reports , inter alia by ORG of DATE , ORG on GPE of DATE , ORG GPE ) , LAW , ORG of ORG ) and the country of origin information available to ORG , it noted that the general security situation and the protection of human rights in the north GPE region had deteriorated again in DATE and DATE . In some cases of individuals who had decided to follow rebel groups , the authorities were reported to have retaliated by burning down the houses of their relatives . The numbers of abductions had also increased again , to CARDINAL cases in DATE . ORG further referred to the amnesty regime introduced in DATE and the surge of house burnings in DATE and DATE .

In conclusion and as regards the applicant ’s submissions , ORG stated that the applicant ’s initial reasons for leaving had already been considered unconvincing in the first proceedings and that the applicant had not forwarded any new relevant information in the new proceedings .

An appeal by the applicant against this decision was granted suspensive effect . In his appeal the applicant claimed deficiencies of the proceedings and a wrong legal assessment of the established facts by ORG . He claimed that , because he was still at real risk of persecution if he returned to GPE and because of the deterioration of the security situation there , his subsequent asylum request could not be considered a res judicata .

On DATE ORG dismissed the appeal as unfounded . In the summary of the facts of the case , it referred to the applicant ’s mother , wife and children , while again citing the file numbers of their asylum proceedings .

As regards the nature of a res judicata , it reiterated that a new decision on the merits of an application could only be based upon a change of circumstances which was significant enough to allow the conclusion , either alone or in combination with other facts , that those reasons for which the former application had been dismissed were to be evaluated differently in the present proceedings . Referring to long - standing administrative jurisprudence , it further stated that the credibility of the alleged new facts had to be evaluated anew in the context of all former investigation results in the event that those alleged new facts could prima facie lead to a different outcome of the proceedings .

ORG went on and established that the applicant ’s reasons for leaving GPE presented in the subsequent proceedings had already been deemed unconvincing by the previous final decision . It therefore confirmed that the applicant had not presented any relevant new information with regard to his asylum request . Furthermore , the applicant was not suffering from any severe psychological or physical illness , and still had friends and family living in GPE .

With regard to the applicant ’s right to respect for his family life , it considered that the applicant ’s removal to GPE would constitute an interference with his family life , since the applicant lived with his mother , wife and CARDINAL minor children , who were all recognised refugees , but found that the applicant had never had secure residence status in GPE , even when he had married , and that he had not shown that he had substantially integrated into NORP society . On the other hand , the applicant had been convicted CARDINAL times of criminal offences such as theft and aggravated bodily harm , and an exclusion order in respect of residence until DATE had been issued in DATE , which had led to the conclusion that the public interest in the applicant ’s removal outweighed his private interest in respect of his family life in GPE .

On DATE ORG Verfassungsgerichtshof ) dismissed the applicant ’s application for legal aid to enable him to lodge a complaint . That decision was served on the applicant ’s counsel on DATE .

The applicant was convicted of theft and attempted theft on DATE and DATE , fined MONEY ( ORG ) and sentenced to DATE imprisonment , suspended with probation . On CARDINAL DATE ORG ( ORG ) convicted the applicant of trafficking under the DATE LAW ( Fremdenpolizeigesetz ) and of aggravated bodily harm , and sentenced him to CARDINAL months’ imprisonment . Finally , on DATE , ORG ( PERSON ) again convicted the applicant of aggravated bodily harm and sentenced him to an additional CARDINAL months’ imprisonment .

On DATE ORG ) issued an unlimited residence ban ( unbefristetes PERSON ) against the applicant . Due to an amendment of the DATE LAW , the validity of the residence ban was later reduced to DATE , i.e. until DATE .

On DATE ORG summoned the applicant to arrange for his removal . It seems that a travel certificate had been requested .

On DATE the ORG applied an interim measure under Rule CARDINAL and requested ORG to stay the applicant ’s removal to GPE until further notice .

From DATE to DATE the applicant was treated as an inpatient at ORG in GPE for a depressive episode . The discharge letter of DATE stated that he had been admitted suffering from a severe depressive episode and suicidal thoughts , so that his medication could be adjusted . He was prescribed NORP and GPE when he was released . For his health to continue to improve it was recommended that he should continue to have his family ’s support and that removal to GPE would be irresponsible from a psychiatric point of view .

On DATE and after one consultation , ORG confirmed that the applicant was suffering from post - traumatic stress disorder and a medium - level depressive episode and recommended pharmacological and psychotherapeutical treatment . It also advised against removing him to GPE .

A diagnostic letter from ORG in GPE dated CARDINAL DATE stated that a GPE scan had shown a facial bone conversion in his right ventral maxilla that would correspond with the applicant ’s statement that he had been physically abused in GPE .

Section CARDINAL § CARDINAL of the Code of General Administrative Procedure ( Allgemeines Verwaltungsverfahrensgesetz ) provided that submissions from individuals who request modification of a ruling which is not , or is no longer , subject to appeal , shall be rejected as res judicata . In this context the DATE LAW ( DATE ) included in its section QUANTITY § CARDINAL a reference to section CARDINAL of LAW that

“ Decisions rejecting or dismissing a request under the [ former versions of the ] Asylum Act ... shall constitute res judicata in proceedings under LAW concerning the same facts . ”

ORG has observed in its jurisprudence as follows ( see judgment of ORG of DATE , no . CARDINAL ) :

“ An alleged change in circumstances may entitle and require the authority to give a fresh decision on the merits – once it has carried out any necessary investigations of its own motion under LAW of LAW – only where such a change , by itself or in combination with other facts , would be of legal relevance to the question of asylum ; a different legal assessment of the request must not be prima facie inconceivable . Furthermore , the alleged change in circumstances must have at least a credible basis which is relevant to the question of asylum and to which to the above - mentioned prospect of a positive decision can be linked . To that end , as soon as it begins to examine the admissibility of the ( fresh ) asylum request , the authority must address the credibility of the asylum - seeker ’s allegations and , where appropriate , the evidential value of any certificates . Should the authority ’s investigations conclude that , contrary to the party ’s allegations , a change in circumstances which is prima facie capable of giving rise to a different assessment has not in fact occurred , the asylum request must be rejected in accordance with section CARDINAL ) of LAW ( see decision of DATE , no . CARDINAL/CARDINAL/CARDINAL , with further references ; see also the case - law recapitulated in PERSON , Verwaltungsverfahrensgesetze I , CARDINALnd ed . , notes CARDINAL et seq . on section CARDINAL of LAW ) . ”

This section gives a short overview of selected reports from various easily accessible sources on the security and human rights situation in GPE available at the time of the applicant ’s subsequent asylum proceedings in GPE .

The Commissioner stated that the north GPE has been a region of major interest and concern from the very beginnings of the office of the Commissioner of Human Rights in DATE .

The Commissioner noted that the lifting of the DATE - long counterterrorist operation in GPE had not been accompanied by a diminution in the activities of illegal armed groups . Federal and NORP authorities had carried out CARDINAL special operations in DATE ( see paragraphs CARDINAL ) . The report further noted an increase in the number of abductions and disappearances in GPE since DATE . In some cases , the involvement of law - enforcement officials had been alleged ( see paragraph CARDINAL ) . Finally , the lack of effective investigations of repeated human rights violations , the alleged involvement of law - enforcement officials in crimes , and the deficiencies of the judiciary , were concerns which had been raised by both the current Commissioner and his predecessor ( see paragraph CARDINAL ) .

He concluded the report with regret , in view of the fact that stability in the north GPE region had yet to be achieved . Increased activity by illegal armed groups , the lack of effective investigations of disappearances and killings , and murders of human rights activists were of particular concern . Patterns of impunity persisted , even though there were indications of serious efforts to reinforce the rule of law . The difficult economic situation was one of the destabilising factors , and the need for economic development and further social reconstruction was evident ( see paragraph CARDINAL ) .

This report described the north GPE region of GPE as remaining an area of particular concern . The government ’s poor human rights record in the north GPE worsened as the government fought insurgents , NORP militants , and criminal forces . Local government and insurgent forces reportedly engaged in killing , torture , abuse , violence , politically motivated abductions , and other brutal or humiliating treatment , often with impunity . In GPE , PERSON and ORG , the number of extrajudicial killings and disappearances increased markedly , as did the number of attacks on law - enforcement personnel . Authorities in the north GPE appeared to be acting outside federal government control . Although the NORP government announced a formal end to counterterrorist operations , there was an increase in violence during DATE , which continued through the remainder of DATE . Federal and local security forces in GPE , as well as the private militia of NORP president PERSON , allegedly targeted families of suspected insurgents for reprisals and committed other abuses . There were also reports of rebel involvement in bombing civilian targets and of politically motivated disappearances in the region . Some rebels were allegedly involved in kidnapping for ransom . According to the PERSON news agency ORG , CARDINAL members of law - enforcement agencies lost their lives and CARDINAL were injured during DATE in actions involving insurgents . CARDINAL of internally displaced persons were living in temporary centres in the region : the centres failed to meet international standards .

Under the heading “ Use of Excessive Force and Other Abuses in Internal Conflicts ” , it was noted that during DATE complex and inter - connected insurgencies caused continuing instability in the north GPE , with a marked upsurge in incidents committed by government and insurgent forces during DATE . Overall , there were increases in disappearances , killings , and other abuses . There were reports that federal and local security forces seeking to quell the insurgencies were continuing to use excessive force and to engage in human rights abuses , including torture , summary executions , disappearances , and arbitrary detentions . Authorities in the north GPE were reportedly acting with impunity , and some observers alleged that the federal government had ceded de facto control of the region to local authorities . Rebels were also continuing to commit human rights abuses , including major acts of terrorism and summary executions .

As regards abductions , the report stated that Government personnel , rebels and criminal elements were continuing to engage in abductions in the north GPE . Officials and observers disagreed on the numbers involved . Human rights groups believed that the numbers of abductions were under - reported , due to the reluctance of GPE relatives to complain to authorities for fear of reprisals . ORG reported that during DATE there were CARDINAL kidnappings in GPE , while the MAShR NGO reported CARDINAL disappearances in GPE and CARDINAL disappearances in ORG . It stated that there was no accountability for government forces involved in abductions . There were continued reports that abductions were followed by beatings or torture to extract confessions , and that abductions were conducted for political reasons . Criminal groups in the region , possibly with links to rebel forces , frequently resorted to kidnapping .

Finally , under the heading “ Physical Abuse , Punishment and Torture ” , it could be read that armed forces and police units were reported to have frequently abused and tortured people in holding facilities where federal authorities took them to separate fighters and those who were suspected of aiding rebels from ordinary civilians .

The ORG report stated that there were continuing reports of human rights violations , including arbitrary detention , torture and ill - treatment , and extrajudicial executions , by law - enforcement officials in GPE , PERSON and ORG . There was also an ongoing concern that investigations of these violations were not effective , resulting in widespread impunity .

The present report was an update to the organisation ’s report of DATE and used sources from human rights organisations , such as FAC of the NORP ORG , ORG , as well as the results of a meeting with CARDINAL human - rights activists from the north GPE and a NORP human - rights specialist . The report stated that the security situation in the whole north GPE region had deteriorated . In DATE the number of those killed in “ special operations ” conducted by security services or in terrorist attacks had doubled . ORG reported CARDINAL deaths DATE in the whole region ( see page CARDINAL ) .

The report cited arbitrary arrests , secretive detention , torture and ill - treatment , disappearances and abductions , death in detention and extrajudicial executions , the burning of houses , displacements and forced recruitments as the most severe violations of human rights ( see page CARDINAL et seq . ) .

Members of non - governmental organisations , journalists , members of the political opposition , victims and their relatives , witnesses and lawyers , relatives of armed rebels or of members of the security services , young religious men and internally displaced persons were considered to be those most at risk of being subjected to serious human rights violations in the region . Furthermore , returnees from abroad were , according to a member of ORG , at particular risk . They were under suspicion of having fled because of their membership of the armed opposition and of having returned with considerable financial resources .

In this context the report referred to a letter from the NORP office of the ORG High Commissioner for Refugees ( “ the ORG ” ) of CARDINAL DATE that stated , as regards asylum requests by refugees from GPE , that while the military and security situation in GPE had significantly improved , there were still instances of human - rights violations that could lead to well - founded asylum requests by NORP . Such requests should therefore be fairly and efficiently examined by the authorities . As regards those who had already been recognised as refugees , the ORG recommended that they should in any event be able to keep their legal status . Any return to ORG should be done on an exclusively voluntary basis ( see page CARDINAL , including a link to the cited document by the ORG office in GPE ) .

The ORG summarised newer relevant country reports only recently in its judgement GPE v. GPE ( see PERSON v. GPE , no . FAC , § § CARDINAL et seq , DATE ) . Where available , updated information once more depicts the following situation :

The report for DATE identified as CARDINAL of the most significant problems during DATE in its executive summary that the rule of law was particularly deficient in the north GPE , where the conflict between the government and insurgents , NORP militants and criminal forces had led to numerous human rights abuses by security forces and insurgents , who were reportedly engaging in killing , torture , physical abuse and politically motivated abductions . In addition , the government of PERSON in GPE was continuing to violate fundamental freedoms , engage in collective retribution against families of suspected militants , and foster an overall atmosphere of fear and intimidation .

More precisely , the report stated under the heading “ Use of Excessive Force and Other Abuses in Internal Conflicts ” that violence was continuing in the north GPE republics , driven by separatism , inter - ethnic conflict , jihadist movements , vendettas , criminality and excesses by security forces . PERSON continued to be the most violent area in the north GPE ; GPE - Balkaria also saw an increase in violence compared with DATE , while violence continued to decrease in GPE , GPE and GPE .

It further noted that government personnel , rebels and criminal elements were continuing to engage in abductions in the north GPE . The head of the prosecutor general ’s office for the north GPE stated in DATE that CARDINAL disappearances remained unsolved in the north GPE republics . Security forces in GPE , PERSON and ORG frequently abducted or detained individuals for DATE without immediate explanation or charge . Human rights groups believed the number of abductions was under - reported because ORG relatives were reluctant to complain to authorities due to fear of reprisals . Generally , there was no accountability for government security personnel involved in abductions . Memorial reported at DATE that CARDINAL NORP citizens from the north GPE had been kidnapped since DATE . According to PERSON , in DATE there were CARDINAL disappearances , CARDINAL of which took place in LOC , CARDINAL in GPE , CARDINAL in ORG and CARDINAL in Kabardino - Balkaria . Human rights groups alleged that security forces under the command of PERSON played a significant role in abductions , either on their own initiative or in joint operations with federal forces , including abductions of family members of rebel commanders and fighters .

Under the heading “ Physical abuse , punishment and torture ” the paper mentioned that armed forces and police units in the region reportedly abused and tortured both rebels and civilians in holding facilities . The burning of homes of suspected rebels , a mechanism of collective punishment in use since DATE , was reportedly continuing .

As regards the security situation in the north GPE , the report found that it remained volatile , and serious human rights abuses were being committed by both armed groups and security officials . The rapid post - conflict reconstruction of GPE continued with high levels of federal funding , though unemployment remained a problem . Activity by armed groups declined compared to other regions in the north GPE . Law - enforcement operations continued to give rise to reports of serious human rights violations . In a letter to the human rights NGO The Interregional Committee Against Torture , a senior NORP prosecutor acknowledged that investigations of enforced disappearances in GPE were ineffective .

As regards the north GPE the report stated that according to official statements , the number of insurgent attacks in the north GPE doubled in DATE compared to DATE . In DATE the NORP insurgency remained on the rise , especially in GPE . The authorities’ use of torture , abduction - style detention , enforced disappearances and extrajudicial killings in the course of their counter - insurgency campaign , coupled with impunity for these abuses , had antagonised the population of the north GPE .

NORP law - enforcement and security agencies under Ramzan ORG de facto control were continuing to resort to collective punishment of relatives and suspected supporters of alleged insurgents . PERSON documented CARDINAL abductions of local residents by security forces DATE . CARDINAL of those abducted subsequently “ disappeared ” .

Increasingly , victims refused to speak about violations due to fear of official retribution . In a letter to a NORP NGO in DATE federal authorities stated that police in GPE sabotaged investigations of abductions of local residents , and sometimes covered up for perpetrators . The letter marked the first public acknowledgment of the importance of federal investigative authorities in investigating abuses in GPE .


The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by Mr D. Price , a solicitor practising in GPE . The respondent Government are represented by their agent , Mr NORP PERSON of ORG .

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

At the time in question the applicant was a shareholder and sole director of a company , DATE ORG ( “ NORP ” ) which owned a DATE newspaper . On DATE the newspaper published an article written by the editor in which the complainant in a rape case was named , contrary to section CARDINAL ) of LAW DATE ( “ the LAW ” ) . The applicant was charged with an offence under section CARDINAL(CARDINAL ) of the LAW ( see below ) .

The applicant was tried , without a jury , by ORG on DATE . He pleaded “ not guilty ” and gave oral evidence . He contended that merely as director and financier of the company which owned the newspaper , with no editorial role and no pre - publication knowledge of the content of the paper , he could not be described as a “ publisher ” within the meaning of section CARDINAL(CARDINAL ) . Under section CARDINAL(CARDINAL ) of the LAW , the applicant further asserted that he was not aware , and neither suspected nor had any reason to suspect , that the publication would identify the complainant .

ORG found that , as effectively the only person in control of ORG , which was a company without any ORG , the applicant was a “ publisher ” for section CARDINAL(CARDINAL ) purposes and that all of the requirements of section CARDINAL ) had been fulfilled . The magistrates accepted that the applicant did not read the offending newspaper article prior to its publication and that he did not know or suspect that it was to be published . They also accepted that the applicant ’s role at the newspaper was primarily that of a financial backer and fund - raiser . However , they rejected his defence under section CARDINAL(CARDINAL ) of the LAW since they were not satisfied that he had no reason to suspect that the article would be published . They reached this conclusion having found that the applicant had visited the newspaper ’s offices in GPE DATE between TIME and DATE lunchtime . They commented that the editorial content of the articles to be published the following DATE would have been available to the applicant at those DATE meetings on demand . They also found that the contents of the newspaper were vetted by a firm of solicitors DATE on the DATE before publication .

The applicant was fined GBP CARDINAL and ordered to pay GBP CARDINAL costs . At the same trial , the editor of the newspaper was convicted and fined following a “ guilty ” plea and ORG itself , which was by that time in liquidation , was convicted and fined in its absence following a “ not guilty ” plea .

The applicant ’s appeal against conviction and sentence was dismissed by ORG on DATE . In delivering the judgment of the court , Mr Justice PERSON cited the following passage from The Law of Contempt by Borrie and PERSON ( Third Edition , page CARDINAL ) :

“ It seems right to impose liability upon newspaper proprietors since they provide the means whereby publication is effected . The law of contempt as a deterrent instrument would be weakened if the proprietors did not have a strong incentive not only to choose a responsible editor but to take appropriate action if the editor or another member of staff began to make or allow comment which might subject the proprietors to liability . Subject to the reservation as to the proper legal basis of ORG liability , which it is submitted should be a primary responsibility , the current law seems satisfactory . ”

He continued :

“ Whilst it is , of course , true that those passages referred to “ proprietor ” , it seems to me to indicate the wide range of the legislation and would not exclude necessarily the role of a Managing Director as “ publisher ” . ...

It seems to me that s CARDINAL(CARDINAL ) is deliberately widely drawn . Its aim seems to be to prevent , as far as it is possible , the damaging effect of contempt or , in this case , the damage caused by a breach of the Sexual Offences ( Amendment ) Act DATE . Its object is , in my judgment , to prevent those holding various responsibilities from sheltering behind lack of knowledge or lack of direct action in the publication of offending material .

[ Counsel for the applicant ] submits that the Justices should have upheld the submission of no case because the only evidence before them at the end of the prosecution case was that [ the applicant ] was the Managing Director . My view of that is that his position as the Managing Director gave rise to a prima facie case that he was responsible for publications by a publishing company which he managed .

[ Counsel for the applicant ] further submits that if [ the applicant ] is caught by s CARDINAL(CARDINAL ) then s CARDINAL(CARDINAL ) is otiose . Having considered that submission , I do not agree . Section CARDINAL(CARDINAL ) captures both “ publishers ” and “ proprietors ” . Section CARDINAL(CARDINAL ) can capture , for example , a secretary who may not be either a publisher or proprietor . It is clear from the legislation that the offence under s CARDINAL(CARDINAL ) may be committed by the same person either under the provisions of that section or under the provisions of s CARDINAL(CARDINAL ) . ... ”

The relevant part of section CARDINAL(CARDINAL ) of the LAW provides :

“ ( ... ) ( b ) After a person is accused of a rape offence , no matter likely to lead members of the public to identify a woman or man as the complainant in relation to that accusation shall during that person ’s lifetime -

( i ) be published in GPE and GPE in a written publication available ORG to the public ... ”

Section CARDINAL(CARDINAL ) of the LAW provides that a person accused of rape can apply to the trial judge for the restriction in section PERSON ) to be lifted .

Section CARDINAL ) of the LAW provides that if the trial judge is satisfied that the effect of section PERSON ) is to impose a substantial and unreasonable restriction upon the reporting of the trial proceedings and that it is in the public interest to remove or relax the restriction , he must direct that section PERSON ) does not apply .

“ If any matter is published ... in contravention of subsection ( CARDINAL ) of this section , ... in the case of a publication in a newspaper ... , any proprietor , any editor and any publisher of the newspaper ... shall be guilty of an offence and liable on summary conviction to a fine not exceeding [ GBP CARDINAL ] ” .

Section CARDINAL(CARDINAL ) of the LAW provides , in part :

“ When an offence under subsection ( CARDINAL ) of the preceding section which has been committed by a body corporate is proved to have been committed with the consent or connivance of , or to be attributable to any neglect on the part of , any director , manager , secretary or other similar officer of the body corporate ... , he as well as the body corporate shall be guilty of that offence ... ”

“ ... where a person is charged with [ an offence under section CARDINAL(CARDINAL ) ] it shall be a defence to prove that at the time of the alleged offence he was not aware , and neither suspected nor had reason to suspect , that the publication ... was of , or ( as the case may be ) included , such matter as is mentioned in subsection ( CARDINAL ) of that section . ”

The defendant has to prove the defence under section CARDINAL(CARDINAL ) on the “ balance of probabilities ” .

There is a right of appeal to ORG against a decision of ORG in its capacity as an appellate court . In order for such an appeal to lie to ORG , ORG must certify that the appeal involves a point of law of general public importance . Following certification , permission for such an appeal may be granted by ORG itself or ORG .