Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 8;Violation of P1-1;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;Not necessary to examine Art. 18;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant , a NORP citizen of NORP origin , was born in DATE . He and his family were living in Kaynak hamlet at the time of the events giving rise to the present application .

The facts of the case , particularly concerning events which took place on or about CARDINAL DATE and on or DATE , are disputed by the parties .

The facts as presented by the applicant are set out in Section B below ( paragraphs CARDINAL ) . The Government 's submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) . GPE evidence submitted by the applicant and the Government are summarised in Sections D and E respectively .

The Commission , in order to establish the facts disputed by the parties , conducted an investigation with the assistance of the parties , pursuant to former LAW ( a ) of the LAW . It appointed CARDINAL delegates ( PERSON , PERSON and PERSON ) , who took evidence in GPE from DATE to DATE . They heard the applicant 's son as well as the following CARDINAL witnesses : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG and finally PERSON . A summary of the oral evidence given by these witnesses may be found in Section F below .

A further witness , Mr PERSON , the chief public prosecutor in GPE who had questioned the applicant , was also summoned but did not appear before the ORG 's delegates . A letter written by PERSON GPE , explaining his failure to give evidence before the delegates , was read out during the fact - finding hearing . Mr GPE stated that his involvement in the case was limited to his having taken a statement from the applicant and therefore he did not have any further information to offer .

Kaynak was a small hamlet where CARDINAL families lived . The village of GPE , where CARDINAL families lived , was QUANTITY away from the hamlet of GPE . As both places were very small they were joined so as to form CARDINAL single village . GPE was the centre and PERSON the hamlet . It was built on a hillside and from there the nearby villages of GPE and PERSON , both of which were located at a lower altitude and within CARDINAL kilometre radius , could be seen . To the west of the hamlet was the village of Konaklı where there was a gendarme station . It was QUANTITY away and located at a higher altitude than the hamlet . The villages of Oğuzköy , located QUANTITY to the south of the hamlet , and the village of ORG , QUANTITY away from the village of Konaklı , also had gendarme stations .

The applicant owned LOC , almond , cherry , fig and oak trees which were located to the west of Kaynak hamlet . He also owned plum , peach and apricot trees which were located in the valley between his hamlet and the village of GPE , located to the south - east of the hamlet . These trees were irrigated by a river which had its source in the village of LOC and flowed to GPE . The applicant owned land in the valley where he used to grow cotton and tobacco . He also kept sheep and goats .

On or about DATE military units attached to ORG at GPE searched the applicant 's hamlet . No military operation was taking place in the area at the time . The soldiers rounded up the villagers , threatened them and told them that they would be killed if they did not leave the hamlet . The soldiers then burned and destroyed some of the houses and barns using hand grenades , inflammable material and pickaxes . They also killed a number of animals .

The villagers whose houses had been destroyed left the hamlet and went to the nearby village of GPE to take shelter . On the way to PERSON an elderly woman and DATE old twin brothers lost their lives .

The soldiers returned DATE , burned the remaining houses in the hamlet and forced the remaining villagers to leave .

NORP Some time later , the villagers returned to their hamlet to tend their LOC and orchards . They made tents in which to live and erected them in their LOC and orchards .

On or DATE members of the security forces returned to the hamlet and destroyed what was left of the houses . When the soldiers saw that the villagers would not be separated from their village , the soldiers set fire to the earth in which the LOC and orchards were planted . The ground , crops and trees were burned using petrol , paraffin and other similar inflammable material and sometimes a powder . In the vineyard and orchard owned by the applicant , CARDINAL vines , CARDINAL peach trees , QUANTITY fig trees , CARDINAL almond trees , QUANTITY apricot trees , FAC prune trees and CARDINAL oak trees were burned down . The applicant owned QUANTITY of land .

After having left his hamlet and taken shelter in an empty house in the village of GPE , the applicant sent petitions to a number of authorities , including the office of the Prime Minister , ORG and ORG and asked for his damages to be compensated . On DATE he received a reply from the Prime Minister 's office , stating that the application for compensation had been passed to the relevant authority and that he would be informed of the outcome by that authority in due course . No compensation was ever paid to the applicant or his family .

In DATE the applicant was on his way from GPE to the hamlet . He was stopped and searched at ORG . When the replies he had received from the ORG and party leaders were found on him , the applicant was thrown into the station , beaten up and abused . The soldiers burned the documents .

On DATE military units attached to ORG carried out an operation in the village of GPE with the aim of taking precautionary measures to protect the lives and property of the inhabitants of the village from the ORG . The allegations made by the applicant concerning the destruction of his house , its contents and orchards and finally the allegation that the applicant had been ill - treated at ORG gendarme station were completely baseless .

CARDINAL member of the LOC family living in Kaynak hamlet had a hideout in the village in which weapons were found . These weapons had been used in a number of killings . The discovery of the hideout revealed the cooperation between that family and the terrorist organisation . This revelation made it difficult for the family to stay in the hamlet , probably because of fear of reprisals from the ORG for having surrendered the weapons . It was much safer to live in a bigger village like GPE .

According to the registry office responsible for the keeping of title deeds , the applicant owned a total of QUANTITY ( sq . m ) of land which , given its size , could not have accommodated the number of trees which he claimed had been burned down .

NORP This petition is signed by the applicant and copies of it were submitted to various domestic authorities in order to claim compensation for his damage . A copy of this letter was also sent to the ORG branch of ORG . This petition sets out the applicant 's allegations summarised in Section B above .

In this letter Mr PERSON promised to pursue the matter .

In this letter the applicant was informed that a copy of his petition had been forwarded to ORG , the body responsible for the actions of the gendarme forces .

NORP This letter states that the petition submitted by the applicant had been passed to the relevant authority .

The applicant also submitted :

This is a CARDINAL - page report drawn up by PERSON , the commanding officer of the PERSON gendarme station . It was also signed by gendarme NCOs PERSON , PERSON and PERSON . It states that the allegations submitted in a petition by the applicant to the regional governor were baseless . According to this report , commander PERSON had visited the PERSON hamlet and saw that there was no damage to any of the houses and that the population had left the village of their own free will , possibly because of the pressure exerted on them by terrorists . Furthermore , there was no damage to any of the trees ; and , contrary to what had been claimed by the applicant , the latter owned only very few trees and vines . Commander PERSON had been unable to question the applicant because he had run away from him . Commander PERSON concluded in his report that the allegations had been made to assist the illegal organisations in their spread of propaganda .

This statement was taken from Mr LOC pursuant to a request made by ORG on DATE , following the communication of the application to the Government . In his statement to the prosecutor , Mr İlhan confirmed that he had submitted the petition of DATE to a number of authorities in GPE in order to obtain compensation for his damage , but he stated that he did not make an application to ORG . He also largely repeated his allegations as set out in his petition of DATE .

According to this decision the office of the LOC prosecutor lacked jurisdiction to investigate the allegations made by the applicant as the alleged perpetrators of the incidents were members of the security forces . The file was sent to ORG for authorisation to investigate the allegations .

In this letter the chief public prosecutor informed the ORG about the statement he had taken from the applicant on DATE . The prosecutor also wrote that an investigation which had been opened ex officio into the allegations was still continuing and that a decision of nonjurisdiction had been taken by his office .

This CARDINAL - page report was drawn up by PERSON , a gendarme ORG working at ORG who had been requested to investigate the allegations made by the applicant . PERSON stated in his report that , according to the documents in his office , no such incidents had taken place in the applicant 's hamlet and that no houses had been burned down .

The governor stated in his letter that no operation had been carried out in GPE on DATE by soldiers from the GPE gendarme headquarters and that the allegations made by the applicant had been fabricated by those who wanted to put GPE in a difficult position before ORG .

These statements were taken by gendarme NCOs PERSON and PERSON , from ORG , the headman of GPE , and PERSON and PERSON , who used to live in GPE at the time of the alleged events . According to these almost identical statements , the allegations of the applicant were untrue and , in their opinion , had been made in order to discredit the security forces . They further submitted that they had left GPE because of the actions of the ORG .

In their letter the ORG informed the chief public prosecutor that during the fact - finding hearing conducted by the ORG in GPE , a number of documents had been requested . The ORG asked the chief public prosecutor to clarify whether there had been any applications to his office concerning the alleged destruction of the houses in PERSON hamlet on DATE . The ORG also asked what action had been taken in relation to CARDINAL terrorists apprehended in GPE on DATE .

ORG The chief public prosecutor informed the ORG about the decision of non - jurisdiction of DATE . The prosecutor also informed the ORG that , according to the information he had obtained from ORG , there had been no incidents in Kaynak hamlet and therefore no terrorists had been apprehended .

This letter states that no information or documents existed concerning the operations that were conducted on or about DATE in Kaynak hamlet . It further states that no operation took place on CARDINAL DATE in Kaynak hamlet or in its vicinity .

The Government submitted copies of military reports showing that an armed attack was carried out on DATE gendarme station at TIME on DATE by members of the ORG .

The Government also submitted copies of documents showing that an armed clash had taken place between gendarme soldiers , who had gone to GPE on DATE to serve summonses on those young men who were due to be conscripted , and CARDINAL persons who had opened fire on the soldiers . According to these documents , CARDINAL people were killed and CARDINAL people injured .

Finally , the ORG submitted a report setting out the names of villages burned down by members of the ORG DATE ; documents showing the amounts of compensation paid DATE to inhabitants of villages who had to flee due to the actions of the ORG ; a report prepared by ORG in which it was calculated that the number of trees claimed by the applicant to have been burned down would have required a surface area of QUANTITY . m ; and a document drawn up by the registry office responsible for the keeping of title deeds showing that the applicant owned a house in GPE made of stone and built in a garden of QUANTITY . m in addition to a total of CARDINAL sq . m of land .

The evidence of the CARDINAL witnesses heard by the ORG 's delegates may be summarised as follows :

The applicant 's son was living in Kaynak hamlet at the time of the alleged events . Following the events in GPE in DATE ( see paragraph CARDINAL above ) , soldiers used to come to his hamlet and ask the villagers either to become village guards or to leave the hamlet .

Prior to DATE he heard that there had been an incident at Konaklı gendarme station .

On DATE , when the witness and other young men saw that soldiers were approaching the hamlet they left the village and hid in the hills on the other side of the hamlet . The reason for their running away from the hamlet was that in the past soldiers who had visited the hamlet had beaten up young men on a number of occasions .

From their hiding place he could see the hamlet and the soldiers . The soldiers told the villagers to gather outside the village and then started to search the houses . During the search the soldiers destroyed the contents of the houses such as refrigerators , cupboards and food supplies . The soldiers then burned and destroyed some parts of the houses using hand grenades , axes and shovels . The witness was later told that before leaving the village TIME , the soldiers had warned the villagers that they had DATE to evacuate the village .

On DATE following the soldiers ' first visit , the witness again ran to a hiding place in the mountains when he saw soldiers approaching the village . The villagers were given an opportunity to grab whatever they could from their houses following which the houses were set on fire and many animals were killed by the soldiers . After the soldiers left , the villagers left the hamlet and went to the neighbouring villages . The witness and his family moved to a derelict house in GPE .

The soldiers returned to the hamlet many times , including once on DATE when they set fire to the orchards , burned the remaining parts of the houses and , on their way to and from the hamlet , set fire to the dense oak forest .

The witness would like to return to his village if the ORG stopped putting pressure on them .

Mr DATE son - in - law and nephew of the applicant – was living in Kaynak hamlet at the time of the alleged events . Soldiers used to come to the hamlet in the past and on one of those occasions they had told the villagers that there had been an attack on the gendarme station and asked the villagers to leave the hamlet .

On DATE soldiers came to the hamlet , gathered the villagers together and asked them why they had not yet left the hamlet . The soldiers then destroyed some parts of the houses in the hamlet , using hand grenades and pickaxes . Before leaving the hamlet , they told the villagers to leave within DATE . On DATE the soldiers returned to the village and burned a few more houses , including the barn and the roof of the witness ' own house .

The witness and his family left the hamlet and went to PERSON . His DATE old twin sons lost their lives on the way . DATE , he returned to the hamlet to visit it and saw that the applicant 's house had also been burned down . After these events soldiers continued to go to the hamlet and on each of their visits they burned the remaining parts of the houses . The witness heard that DATE after the events , the soldiers had burned down the orchards and other trees around the village .

Mr Çirik was living in GPE at the time of the alleged events . He heard the sound of gunshots and bombs coming from the direction of Kaynak hamlet . CARDINAL or DATE villagers from Kaynak hamlet came to PERSON and told them that they were being chased by the military . These villagers were then housed in GPE . At DATE , the orchards and other trees were set on fire .

Captain PERSON was an army captain and commanding officer of ORG at the time of the alleged events . His headquarters had overall responsibility for a number of villages , including that of the applicant 's hamlet , within the administrative jurisdiction of GPE .

He never asked any villager to become a village guard .

One evening in DATE , ORG members raided ORG gendarme station . DATE terrorists were arrested . CARDINAL of them were from Kaynak hamlet and their surname was LOC . These CARDINAL persons stated that they had a hiding place in Kaynak hamlet which they showed to Captain PERSON on or around DATE . A number of weapons were found in this hiding place and it was destroyed by the soldiers to prevent the terrorists from using it again in the future . No houses were burned down or demolished by the soldiers during this search . The reports and other documents pertaining to the arrests and the finding of the hiding place and weapons were prepared and submitted to the local public prosecutor .

He could not remember whether he had ever been questioned by the authorities in relation to the allegations made by the applicant . The reason for his inability to remember was that , in his opinion , these allegations were fabricated and therefore not serious , which was why he had not paid any attention to them .

The inhabitants of Kaynak hamlet were in the habit of leaving the hamlet DATE to go to GPE where there was more water for their animals . They would then return to the hamlet at DATE . It was possible that the villagers had left the hamlet in DATE following the discovery of the hiding place and the weapons , because they might have feared that the ORG would punish them .

Sergeant Yılmaz is a gendarme ORG and was commanding officer of FAC at the time of the alleged events .

A terrorist with the surname LOC , who had been apprehended previously , told them that there was a hiding place in GPE . The witness and a number of other gendarme officers and soldiers visited the hamlet together with the arrested person on or around DATE and recovered a number of weapons from a hiding place . The hiding place was then destroyed by the soldiers . The soldiers did not burn or destroy any of the houses in the hamlet . A report was prepared detailing the events of DATE and a sketch indicating the location of the hiding place was drawn up . These documents would have been sent to the local prosecutor in line with the applicable procedure .

The villagers must have left the hamlet in DATE or DATE because of their fear of the ORG and gone to live in villages where there were gendarme stations .

Sergeant GPE is a gendarme ORG who was commanding officer of Akıncı Gendarme Station at the time of the alleged events . He had heard about the attack on the PERSON gendarme station but did not remember any details of this attack . Similarly , he remembered having heard that an operation had been conducted following this attack but did not know any of the details . He had never been to PERSON hamlet and had only seen it from afar . He never heard about the allegations concerning the alleged destruction of houses in GPE . The applicant had never been detained at his station .

Mr GPE is a gendarme expert sergeant who worked at FAC until DATE . His immediate superior was PERSON . There had been an attack on PERSON gendarme station on DATE and a terrorist , who had been arrested DATE after this incident , was detained at ORG . On DATE an operation was carried out in Kaynak hamlet during which the arrested terrorist showed the soldiers a hiding place in which a number of weapons were found . The hiding place was subsequently destroyed by the soldiers using pickaxes . This operation was carried out with the participation of CARDINAL gendarme officers and soldiers from the gendarme headquarters in GPE , and the PERSON and ORG stations . ORG and PERSON , a gendarme ORG , also took part in the operation . Overall command of the operation rested with Captain PERSON . A report was prepared on the spot and signed by the commanders involved in the operation . During this operation no houses were burned down .

The witness had never been questioned by the domestic authorities about the allegations made by the applicant .

Sergeant Çalışkan is a gendarme ORG who succeeded PERSON as commanding officer of ORG in DATE . He was entrusted by the emergency governor with the duty to investigate the allegations made by the applicant . He visited Kaynak hamlet to question the applicant but there was no one living in the village . All the houses and LOC were intact . During his time in office until DATE no one lived in the hamlet . He questioned a number of villagers in GPE about the allegations but did not remember their names . He also did not remember checking the official records at the station or questioning his predecessor to verify whether an operation had indeed been conducted in GPE on DATE as alleged . Furthermore , he did not deem it necessary to append any such records to his report since he was of the view that the gendarme headquarters in GPE would already have such reports in their files .

The witness heard from his colleagues and also from the villagers in GPE that GPE hamlet had been visited by soldiers and a hiding place for terrorists had been found . He was not sure whether this was a relevant piece of information which he should have conveyed to the emergency governor in his investigation report .

DATE . Sergeant Göl is a gendarme ORG who prepared the report of CARDINAL DATE ( see paragraph DATE above ) during his time at ORG . This report was prepared at the request of the emergency governor who had instructed him to investigate the allegations made by the applicant . In the course of his investigation he visited the hamlet , examined a number of documents and questioned several villagers . When he visited the village there were no signs of any burning or demolition of houses ; the houses were still standing , but the roofs of some of the houses had been destroyed due to natural causes .

The witness stated that there were no reports at the gendarme headquarters in GPE concerning the operation that had taken place on QUANTITY DATE ; had such an operation taken place there would have been reports .

The witness was living in the village of GPE at the time of the alleged events but did not hear the allegations about the destruction of the houses in PERSON . He had not been to PERSON since DATE . The applicant 's family came to live in GPE at some stage in DATE . The LOC and trees owned by the applicant 's family were still there and had not been burned . The witness and other villagers left their village in DATE due to the intensity of the clashes between the ORG and NORP armed forces , and went to Oğuzköy where there is a gendarme station . He should like to return to his village if the Government allowed him .

The witness was living in GPE at the time of the alleged events . He subsequently became the headman of the village in DATE .

The applicant 's family came to GPE at some stage in DATE . It was a lie that soldiers burned some of the houses . He visited Kaynak hamlet DATE where he , “ looked at the house . That house did not have an owner ; it was not maintained . It was dilapidated ” .

The witness and his family left ORG in DATE together with other villagers . He should like to return to his village but this required the permission of the authorities .

A full description of the relevant domestic law may be found in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alvina Gyulumyan;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabeth Steiner;Giovanni Bonello;Jean-Paul Costa;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Lucius Caflisch;Luigi Ferrari Bravo;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Stanislav Pavlovschi;Sverre Erik Jebens;Vladimiro Zagrebelsky

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

On DATE PERSON , the applicant ’s mother , brought proceedings in the Benevento Magistrate ’s Court , sitting as an employment tribunal , seeking acknowledgment of her right to an invalidity pension ( pensione di inabilità ) and an attendance allowance ( indennità di accompagnamento ) .

On DATE the ORG set the case down for the first hearing on DATE . On DATE the court appointed an expert and adjourned the proceedings to a hearing on DATE .

In a judgment of DATE , the text of which was deposited with the registry on DATE , the court dismissed PERSON claim .

On DATE PERSON lodged an appeal with ORG . The president of the court appointed a judge rapporteur and set the appeal down for hearing on DATE .

In the meantime , also on DATE , PERSON died . According to information provided by the applicant ’s lawyer on DATE , when he attempted to file with the court registry the document stating his client ’s intention to continue the proceedings as heir , an employee of the GPE ORG registry told him to come back in DATE . His reason for this was that the hearing would not be until DATE and he would otherwise have to waste TIME looking in CARDINAL of cases listed for DATE . On DATE the applicant lodged a document declaring his intention to continue the proceedings as heir . A hearing was listed for DATE .

In a judgment of DATE , the text of which was deposited with the registry on DATE , the court noted that a further expert ’s report showed that PERSON had been suffering from a number of ailments which rendered her totally unfit for work and made it necessary to hire a permanent home help . Accordingly , it granted PERSON claim from DATE until the date of her death .

On DATE the applicant lodged an application with ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto Act ” , complaining of the excessive length of the above - described proceedings . The applicant requested the court to conclude that there had been a breach of LAW and to order the NORP ORG to pay compensation for the non - pecuniary damage sustained , which he had assessed at MONEY ( MONEY ( ORG ) ) , plus an unspecified amount in costs and expenses .

In a decision of DATE , the text of which was deposited with the registry on DATE , ORG found that the length of the proceedings had been excessive for the following reasons :

“ ... The first - instance proceedings ended after DATE , whereas the appeal lodged in DATE is still pending .

The Convention principle that everyone ’s case must be examined within a reasonable time must be deemed to have been breached .

The length of the proceedings in question does not comply with the reasonable - time requirement because DATE given the subject matter – they should not have exceeded DATE at first instance and DATE on appeal since the case is not a complex one .

No particularly repetitive conduct such as to prolong the proceedings can be attributed to the applicant .

It is undeniable that the judicial system – on account of the relevant rules of procedure and the lack of staff – prevents judicial proceedings from being disposed of rapidly , despite the intervention of the legislature , which has introduced specific reforms that have not , however , succeeded in having a decisive effect on the ‘ slow workings’ of justice .

Having regard to the foregoing , the ORG can only acknowledge that the applicant has incurred non - pecuniary damage as a result of the mental distress and the inevitable state of prolonged anxiety suffered by having to wait DATE for the end of proceedings relating to the right to an attendance allowance .

Considering , on the basis of the above - mentioned factors , that there was a DATE delay at first instance and a DATE delay on appeal , damages may be determined , on an equitable basis , as currently standing at CARDINAL plus interest accruing from the date on which this decision is deposited . ”

ORG also awarded LAW for costs and expenses . The decision was served on DATE and became final in DATE .

NORP In a letter of DATE , the applicant informed ORG outcome of the domestic proceedings and asked it to resume its examination of the application .

When payment was not forthcoming , on CARDINAL DATE the applicant served notice on the authorities to pay the amounts due . When that proved unsuccessful he applied for a garnishee order , which was granted on CARDINAL DATE , against ORG . According to the information provided by the applicant at the hearing on DATE , ORG decision had not yet been enforced .

Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to LAW

“ ( CARDINAL ) Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the ‘ reasonable time’ requirement in LAW , shall be entitled to just satisfaction .

( CARDINAL ) In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .

( CARDINAL ) The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :

( a ) NORP only damage attributable to the period beyond the reasonable time referred to in subsection ( CARDINAL ) may be taken into account ;

( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . ”

“ ( CARDINAL ) Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending .

( CARDINAL ) The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .

( CARDINAL ) The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .

( CARDINAL ) The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG [ Avvocatura dello Stato ] DATE prior to the date of the hearing before the ORG .

( CARDINAL ) The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up until DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties .

( CARDINAL ) The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .

( CARDINAL ) To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . ”

“ A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . ”

“ If the court decides to allow an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity . ”

“ ( CARDINAL ) Within DATE after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the ‘ reasonable time’ requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .

( CARDINAL ) The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection ( CARDINAL ) of this section . ”

“ ( CARDINAL ) The financial cost of implementing this LAW , which is put at MONEY from DATE , shall be met by releasing funds entered in the DATE budget DATE in the chapter concerning the basic current - liability estimates from the ‘ special fund’ in DATE forecast of ORG . ORG deposits shall be set aside for that purpose .

( CARDINAL ) ORG of the ORG , ORG is authorised to make the appropriate budgetary adjustments by decree . ”

NORP On appeal from decisions delivered by the courts of appeal in “ Pinto ” proceedings , ORG , sitting as a full court ( ORG ) , gave CARDINAL judgments ( nos . CARDINAL , DATE , DATE and DATE ) on DATE , the texts of which were deposited with the registry on CARDINAL DATE , quashing the appeal court ’s decision and remitting the case for a rehearing . It held that “ the case - law of ORG is binding on the NORP courts regarding the application of PERSON no . CARDINAL ” .

In its judgment no . CARDINAL it affirmed , inter alia , the principle that

“ the court of appeal ’s determination of non - pecuniary damage in accordance with LAW no . CARDINAL/CARDINAL , although inherently based on equitable principles , must be made in a legally defined framework since reference has to be made to the amounts awarded , in similar cases , by ORG . Some divergence is permissible , within reason ” .

Extracts from the plenary ORG judgment no . CARDINAL deposited with the registry on DATE read as follows :

“ CARDINAL . The present application poses the fundamental question of what legal effect must be given – in implementing PERSON no . CARDINAL of DATE , and in particular in determining the non - pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of ORG , whether considered generally as interpretative guidelines which the said ORG has laid down with regard to the consequences of the said violation , or with reference to a specific case in which ORG has already had occasion to give a judgment on the delay in reaching a decision . ...

As stipulated in section CARDINAL(CARDINAL ) of the said PERSON , the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the ‘ violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the “ reasonable time ” requirement referred to in LAW . In other words , PERSON no . CARDINAL/CARDINAL identifies the fact constituting the right to compensation by reference to a specific provision of ORG . This Convention instituted a ORG ( ORG , with its seat in GPE ) to ensure compliance with the provisions contained therein ( Article CARDINAL ) . Accordingly , the competence of the said ORG to determine , and therefore to interpret , the significance of the said provisions must be recognised .

As the fact constituting the right conferred by PERSON no . ORG consists of a violation of the LAW , it is for ORG to determine all the elements of such a legal fact , which thus ends by being ‘ brought into ORG by the ORG , whose case - law is binding on the NORP courts in so far as the application of PERSON no . PERSON is concerned .

It is not necessary therefore to pose the general problem of the relationships between the ORG and the internal judicial system , which ORG [ ORG ] has amply discussed in court . Whatever opinion CARDINAL may have about that controversial issue and therefore about the place of the Convention in the context of the sources of domestic law , it is certain that the direct implementation in the NORP judicial system of a provision of the ORG , established by PERSON no . ORG ( that is , by LAW in the part relating to ‘ reasonable time’ ) , can not diverge from the interpretation which ORG gives to the same provision .

The opposite argument , which would permit a substantial divergence between the application accorded to PERSON no . CARDINAL/CARDINAL in the national system and the interpretation given by ORG to the right to the reasonable length of proceedings , would deprive the said PERSON no . CARDINAL/CARDINAL of any justification and cause the NORP ORG to violate LAW , according to which ‘ The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in LAW ( including the said LAW , which provides for the right to have a case decided within a reasonable length of time ) .

The reason behind the enactment of PERSON no . PERSON was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings , so as to give effect to the subsidiary character of intervention on the part of ORG , expressly provided for by LAW ‘ The ORG may only deal with the matter after all domestic remedies have been exhausted ... ’ ) . The NORP system for the protection of human rights is founded on the said principle of subsidiarity . From it derives the duty of the GPE which have ratified the ORG to guarantee to individuals the protection of the rights recognised by the LAW , above all in their own internal order and vis - à - vis the organs of the national judicial system . And this protection must be ‘ effective’ ( LAW ) , that is , of a kind to remedy the claim without the need for recourse to ORG .

The domestic remedy introduced by Law no . CARDINAL/CARDINAL did not previously exist in the NORP system , with the consequence that applications against GPE in respect of a violation of LAW had ‘ ORG ( the term used by rapporteur PERSON in the sitting of the ORG of DATE ) ORG . ORG observed , prior to LAW no . PERSON , that the said failures to comply on the part of GPE ‘ reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy . This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention’ ( see the CARDINAL judgments of the ORG delivered on DATE in PERSON , PERSON , ORG and ORG ) .

Law no . CARDINAL/CARDINAL constitutes the domestic remedy to which a ‘ victim of a violation’ ( as defined by LAW CARDINAL ( failure to comply with the reasonable - time requirement ) must have recourse before applying to ORG to claim the ‘ just satisfaction’ provided for in LAW , which , when the violation exists , is only awarded by ORG ‘ if the internal law of ORG concerned allows only partial reparation to be LAW Law no . CARDINAL/CARDINAL has therefore allowed ORG to declare inadmissible applications lodged with it ( including before the LAW was passed ) and aimed at obtaining the just satisfaction provided for in LAW of proceedings ( see PERSON , decision of DATE ) .

This mechanism for implementation of the LAW and observance of the principle of subsidiarity in respect of interventions of ORG of GPE does not operate , however , in cases in which the ORG holds that the consequences of the established violation of the ORG have not been redressed by domestic law or that this has been done only ‘ ORG , because in such an event the said LAW provides for the intervention of ORG to protect the ‘ victim of the violation’ . In such cases an individual application to ORG on the basis of LAW is admissible ( see PERSON , decision of DATE ) and the ORG acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law .

The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is , obviously , ORG , whose duty it is to apply Article CARDINAL of the Convention to ascertain whether , in the presence of a violation of a provision of the Convention , the internal law has been able to redress fully the consequences of this violation .

The argument whereby , in applying PERSON no . PERSON , the NORP courts may follow a different interpretation from that which ORG has given to the provisions of LAW ( violation of which is the fact giving entitlement to the right to compensation attributed by the said national law ) implies that the victim of the violation , if he or she receives reparation at national level considered inadequate by ORG , must obtain the just satisfaction provided for in LAW from the latter Court . This would defeat the purpose of the remedy provided for in NORP law by PERSON no . PERSON and entail a violation of the principle of the subsidiarity of the intervention of ORG .

It is therefore necessary to concur with ORG , which , in the above - mentioned decision on the PERSON application ( concerning the inadequacy of the protection afforded by the NORP courts in implementing PERSON no . ORG ) , affirmed that ‘ it follows from the principle of subsidiarity ... that the national courts must , where possible , interpret and apply domestic law in accordance with the Convention’ .

... The preparatory documents of PERSON no . PERSON are even more explicit . In the report concerning the bill of Senator PERSON ( proceedings of the ORG no . CARDINAL of DATE ) it is affirmed that the compensatory mechanism proposed in the legislative initiative ( and then adopted by the LAW ) secures for the applicant ‘ a protection analogous to that which he or she would receive in the international ORG , as the direct reference to LAW makes it possible to transfer to domestic level ‘ the limits of applicability of the same provision existing at international level , limits which depend essentially on the ORG and on the development of the case - law of the GPE authorities , especially that of ORG , whose decisions must therefore guide ... the domestic court in the definition of these limits’ .

The considerations expounded in sections CARDINAL of the document refer in general to the importance of the interpretative guidance of ORG on the implementation of PERSON no . CARDINAL/CARDINAL with regard to reparation for non - pecuniary damage .

In this particular instance , however , any possibility for the national court to exclude non - pecuniary damage ( despite having found a violation of LAW ) must be considered as non - existent because such is precluded by the previous decision of ORG which , with reference to the same proceedings , had already ascertained that the unjustified delay in reaching a decision had had consequences involving non - pecuniary damage for the applicant , which the ORG itself redressed for a limited period . From such a decision of ORG it follows that , once the national court has ascertained that the violation has continued in the period following that considered in the said decision , the applicant has continued to suffer non - pecuniary damage , which must be compensated for in application of PERSON no . PERSON .

It can not therefore be maintained DATE as ORG has done DATE that compensation is not due because of the small amounts at stake in the proceedings in question . Such reasoning , apart from being rendered immaterial by the fact that ORG has already ruled that non - pecuniary damage had been sustained because of a delay in the same action , is in any case incorrect , because the amount of what is at stake in an action in which non - compliance with reasonable time - limits has been ascertained can never have the effect of excluding non - pecuniary damage , given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small ; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it .

NORP In conclusion the decision appealed against must be quashed and the case remitted to ORG , which , in a different composition , will order payment to the applicant of compensation for non - pecuniary damage payable as a result of the violation of the reasonable - time requirement for the period following DATE alone , taking as a reference point payments of the same kind of damages by ORG , from which it may diverge , but only to a reasonable extent ( Court HR , DATE , ORG ) . ”

ORG held as follows :

“ ... Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no . PERSON [ the ‘ Pinto Act’ ] this shall preclude a right [ to just satisfaction ] from arising and passing to the heirs , in accordance with the general rule that a person who has died can not become entitled to a right conferred by an Act that is passed after their death ... ”

ORG judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from LAW . The mechanism put in place by the NORP standard did not give applicants a cause of action before the domestic courts . Accordingly , the right to “ just satisfaction ” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force . The fact that the deceased had , while alive , lodged an application with ORG was not decisive . LAW did not constitute , as the applicants had maintained , a procedural standard bringing about a transfer of powers from ORG to the domestic courts .

In this case , which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of LAW on account of the length of the proceedings , ORG referred the case to the full court indicating that there was a conflict between the case - law authorities , that is , between the restrictive approach taken by ORG in the earlier judgments regarding heirs and LAW and the CARDINAL judgments delivered by ORG , sitting as a full court , on DATE to the extent that a less strict interpretation would lead to the conclusion that this right to compensation had existed since GPE ratified LAW on DATE .

In the case giving rise to the order mentioned above referring the case to the full court ( see paragraph CARDINAL ) , ORG , sitting as a full court , established the following principles , thus preventing any further conflicting decisions being given by the courts :

“ ( i ) Law no . CARDINAL of CARDINAL DATE , which ratified the LAW and made it enforceable , introduced into the domestic legal order the fundamental rights , belonging to the category of rights conferred on the individual by public law , provided for in LAW and which correspond to a large extent to those set forth in LAW . In that respect the LAW provisions are confirmatory and illustrative . ...

( ii ) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in LAW , which is immediately applicable in domestic law .

The distinction between the right to a hearing within a reasonable time , introduced by LAW ( or even pre - existing as a constitutionally protected value ) , and the right to equitable reparation , which was allegedly introduced only by LAW , can not be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by ORG , the domestic courts being bound to comply with the case - law of ORG . ...

( iii ) Accordingly , the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no . CARDINAL/CARDINAL must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date , subject only to the condition that the claim has not already been lodged with ORG and the ORG has not ruled on admissibility . ... ”

This judgment of ORG concerned an appeal by ORG challenging a court of appeal ’s award of compensation for non - pecuniary damage to a juristic person . ORG referred to the decision reached in ORG v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALIV ) and , after referring to the CARDINAL judgments of the full court delivered on DATE , found that its own case - law was not in line with ORG . It held that there was no legal barrier to awarding just satisfaction to “ juristic ” persons according to the criteria of ORG . Accordingly , since the court of appeal had correctly decided the case , the appeal was dismissed .

ORG made the following observations :

“ ... [ Considering that ] non - pecuniary damage is the normal , albeit not automatic , consequence of a breach of the right to a hearing within a reasonable time , it will be deemed to exist , without it being necessary to specifically prove it ( directly or by presumption ) , on the basis of the objective fact of the breach , on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned ( PERSON . ORG , DATE , CARDINAL . CARDINAL and DATE ) ;

– the assessment on an equitable basis of compensation for non - pecuniary damage is subject – on account of the specific reference in LAW no . CARDINAL of DATE to LAW ( ratified by PERSON no . CARDINAL of CARDINAL DATE ) DATE to compliance with the Convention , in accordance with the judicial interpretation given by ORG ( non - compliance with which results in a violation of the law ) , and must therefore , as far as possible , be commensurate , in substantive and not merely formal terms , with the amounts paid in similar cases by ORG , it being possible to adduce exceptional circumstances that suggest themselves in the particular case , on condition that they are reasoned , not excessive and not unreasonable ( PERSON . ORG , DATE , no . CARDINAL ) ;

– a discrepancy in the method of calculation [ between the ORG ’s case - law and LAW ] shall not affect the general vocation of PERSON no . PERSON to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time ( vocation acknowledged by ORG in , inter alia , a decision of DATE in GPE ( application no . MONEY ) ) , and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by GPE when ratifying LAW and the formal recognition , also at constitutional level , of the principle stated in LAW ... ”

In the report ORG , revised on DATE , ORG made the following indications regarding an assessment of the Pinto remedy :

“ CARDINAL . As regards the domestic remedy introduced in DATE by the ‘ Pinto Act’ , a number of shortcomings remain , particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention : in particular , the law does not provide yet for the acceleration of pending proceedings .

In the framework of its examination of the CARDINALst DATE report , ORG expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts .

It should be pointed out that in the framework of its examination of DATE report , ORG had noted with concern that the Convention had no direct effect and had consequently invited the NORP authorities to intensify their efforts at national level as well as their contacts with the different bodies of ORG competent in this field .

In this interim resolution the Ministers’ Deputies indicated as follows :

“ ORG ...

Noting ...

– the setting - up of a domestic remedy providing compensation in cases of excessive length of proceedings , adopted in DATE ( the ‘ Pinto’ law ) , as well as the recent development of the case - law of ORG , increasing the direct effect of the case - law of ORG in the NORP legal system , while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims ;

Stressing that the setting - up of domestic remedies does not dispense GPE from their general obligation to solve the structural problems underlying violations ;

Finding that despite the efforts undertaken , numerous elements still indicate that the solution to the problem will not be found in the near future ( as evidenced in particular by the statistical data , the new cases before both domestic courts and ORG , the information contained in the annual reports submitted by the government to ORG and in the reports of ORG at ORG ) ;

Stressing the importance the LAW attaches to the right to fair administration of justice in a NORP society and recalling that the problem of the excessive length of judicial proceedings , by reason of its persistence and extent , constitutes a real danger for the respect of the rule of law in GPE ;

URGES the NORP authorities to enhance their political commitment and make it their effective priority to meet GPE ’s obligation under the ORG and the ORG ’s judgments , to secure the right to a fair trial within a reasonable time to all persons under GPE ’s jurisdiction ;

ORG for the Efficiency of Justice was set up at ORG by Resolution Res(CARDINAL)CARDINAL with the aim of ( a ) improving the efficiency and the functioning of the justice of member GPE with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively , thereby generating increased confidence of the citizens in the justice system and ( b ) enabling a better implementation of the international legal instruments of ORG concerning efficiency and fairness of justice .

In its framework programme ( CEPEJ ( DATE ) CARDINAL Rev CARDINAL § CARDINAL ) , the ORG noted that the mechanisms which are limited to compensation are too weak and do not adequately incite the GPE to modify their operational process , and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays .


Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of robbery . On DATE ORG of LOC authorised his pre - trial detention . The applicant remained in custody pending investigation and trial .

Upon completion of the investigation in DATE , the prosecutor 's office forwarded the case file in respect of the applicant and CARDINAL other defendants to ORG . ORG found , however , that the case should be remitted to the prosecutor 's office in view of the incomplete investigation . The relevant decision was issued on DATE . Subsequently ORG remitted the matter for additional investigation on DATE and DATE and DATE .

The opening of the trial was scheduled by ORG on DATE .

On DATE and DATE the hearing was adjourned due to the absence of the interpreter .

DATE ORG scheduled and adjourned seventeen hearings . The Government submitted the information concerning the reasons for the adjournment as follows . On CARDINAL occasion the applicant 's lawyer failed to appear . On CARDINAL occasions the court could not proceed due to the absence of CARDINAL of the legal counsel representing other defendants . CARDINAL times the interpreter failed to appear due to his illness or business trips . Once the hearing was adjourned pending the completion of an additional forensic medical examination . The court also went into recess for DATE on CARDINAL occasion to prepare its ruling in response to the submissions made by the parties .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE imprisonment .

On DATE ORG upheld the applicant 's conviction on appeal . The applicant 's representative was present ; the applicant participated in the hearing by video link .

From DATE to CARDINAL DATE the applicant was detained at remand prison IZ-CARDINAL/CARDINAL in PERSON . According to the Government , from QUANTITY DATE to CARDINAL DATE the applicant was held in cell no . CARDINAL , which measured CARDINAL sq . m and housed CARDINAL inmates . From DATE to CARDINAL DATE the applicant was held in cell no . CARDINAL , which measured CARDINAL sq . m and housed CARDINAL inmates . From DATE to CARDINAL DATE the applicant was held in cell no . CARDINAL , which measured CARDINAL sq . m and housed CARDINAL inmates .

On DATE the applicant was taken to GPE and placed in remand prison no . IZ-CARDINAL/CARDINAL where he was detained pending an appeal hearing until DATE . According to the Government , the applicant was held in cell no . CARDINAL , which measured CARDINAL sq . m and housed CARDINAL inmates .

On DATE the applicant was returned to remand prison IZ-CARDINAL/CARDINAL , where he was placed in cell no . CARDINAL which , according to the Government , measured CARDINAL sq . m and housed CARDINAL inmates . On DATE the applicant was transferred to a penitentiary facility to serve his prison sentence .

Without disputing the information submitted by the Government concerning the size of the cells , the applicant claimed that all of them had been overcrowded . The number of bunk beds was insufficient and the inmates had to take turns to sleep . The cells did not have any ventilation and were stiflingly hot in DATE . The cells were infested with cockroaches . The light was never switched off . There was little access to fresh air . The toilet offered no privacy . The meals were of poor quality . The inmates were allowed to take a shower once or DATE . As a result of the poor hygiene the applicant contracted scabies and fungus infection .

According to the Government the conditions of the applicant 's detention were satisfactory . The cells were ventilated and had central heating , water supply , sewage , natural and electric lighting and sanitary equipment . The toilet was separated by a partition from the living area of the cell . In remand prison IZ-CARDINAL/CARDINAL that partition was QUANTITY high . In remand prison IZ-CARDINAL/CARDINAL it was QUANTITY high . The average temperature in the cells was CARDINAL in the DATE and CARDINAL - CARDINALC in DATE . The electric lighting was constantly on for surveillance and safety reasons . At TIME lower - voltage bulbs were used . The cells were disinfected at least once DATE . The applicant was provided with an individual bed , mattress , pillow and bed linen . No parasitic insects had ever been detected in the cells .

On DATE the applicant was diagnosed with tuberculosis and transferred to a medical unit at the remand centre . He underwent medical treatment and was released from the medical unit on DATE . Upon discharge , his condition was described as “ clinically curable tuberculosis pertaining to the third group for preventive monitoring ” ( “ клинически излечимый туберкулез , III группа диспансерного учета » ) . According to the Government , the applicant received necessary and proper medical assistance .


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

In DATE the applicant took part in the emergency operation at the GPE nuclear plant . As a result he suffered from extensive exposure to radioactive emissions . The applicant underwent medical examinations which established the link between his poor health and his involvement in the GPE events . He was consequently granted status of a disabled person and awarded a DATE pension and a special allowance from the ORG , to be adjusted once a year in line with the minimum subsistence amount ( величина прожиточного минимума ) .

At a certain moment in DATE the social security authorities ceased to increase regularly the amounts of pension and allowance , paid to the applicant in connection with his disability . Instead , he started to receive his pension in a fixed amount ( MONEY ) , which was less than he expected . Presuming that this practice was illegal , the applicant brought proceedings against the regional social security office ( “ the defendant ” ) claiming the increase of the DATE allowance and pension in line with the increase of the minimum subsistence amount during the relevant period .

On DATE ORG of GPE ( “ the Town Court ” ) rendered a judgment ordering the increase of the DATE allowance due to the applicant in line with the increase of the minimal subsistence amount in the GPE region . In re - calculating the amount of the applicant 's pension the court applied the multiplier of CARDINAL based on the data provided by the regional committee on statistics . As a result , the DATE pension of the applicant increased to MONEY . The court ordered the defendant to pay the applicant the recalculated amount as from DATE less the sums already paid .

The defendant appealed challenging , among other things , the multiplier of CARDINAL applied by the first - instance court .

On DATE ORG ( “ the Regional Court ” ) upheld the judgment of DATE in full . The enforcement proceedings were opened .

On DATE the defendant appealed to ORG by way of supervisory review seeking to quash the judgment of DATE , as upheld on QUANTITY .

On DATE the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the ORG of ORG ( “ the ORG ” ) .

On DATE the defendant complained to the President of ORG about the judgment of DATE , as upheld on appeal , and the judge rapporteur 's decision of DATE rejecting their previous application for supervisory review . They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal .

On DATE a judge of ORG requested the case - file from the court of first instance . On DATE judge B. of ORG initiated the review of the judgment of DATE , as upheld on DATE . The decision of DATE referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur 's decision of DATE . The case was transferred to the ORG for the examination on the merits .

On DATE the applicant was informed about the date and venue of the hearing of his case by the ORG .

On DATE the ORG quashed the judgment of DATE , as upheld on appeal , stating that the first instance court 's calculation of the minimum subsistence amount , based on the multiplier of CARDINAL , had been insufficiently supported by evidence . The ORG also noted that the first instance court had misinterpreted the domestic law . The case was remitted to the first instance court for a fresh examination .

On DATE ORG examined the case anew . In the course of the proceedings the court established that the allowance should have been multiplied by CARDINAL in DATE and by CARDINAL for DATE . The applicant maintained that he accepted this multiplier .

As a result , the court held that the amount of pension due to the applicant for DATE was MONEY per month . In DATE the pension of the applicant should have amounted to MONEY per month . The court ordered the social security authorities to compensate the applicant for previous underpayments and , starting from DATE , pay him MONEY DATE , with subsequent indexation .

On DATE ORG rendered an additional decision in the above case aimed at correction of an arithmetic error in the calculation of the amount awarded to the applicant .

The above decisions of ORG were not appealed against and became final .

On DATE the Code of Civil Procedure of GPE ( “ the CCivP ” ) entered into force introducing , in particular , an amended system of supervisory review .

The ORG , in the relevant part , provides as follows :

“ CARDINAL . Judicial decisions that have become legally binding ... may be appealed against ... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions .

Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”

“ A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination . ”

“ CARDINAL . Having examined an application for supervisory review , the judge issues an interim decision on –

( CARDINAL ) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision ;

( CARDINAL ) refusing to obtain the case file if the arguments in the application for supervisory review may not , in accordance with the federal law , result in quashing of the judicial decision .

NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to obtain the case file . In such case the President issues his own decision on obtaining the case file . ”

“ CARDINAL . Having examined the case file obtained by the supervisory review court , the judge issues an interim decision on –

– refusing to remit the case for examination on the merits by the supervisory review court ;

– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court . ”

“ CARDINAL . NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to remit the case for examination on the merits by the supervisory - review court . In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court . ”

“ The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws ”


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

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

ORG ( “ the Government ” ) are represented by their Agent , PERSON , of ORG .

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

NORP In a final decision of CARDINAL DATE ORG convicted the applicant of murder and sentenced him to CARDINAL years’ imprisonment .

The applicant lodged several requests for revision of the final decision . They were all rejected by the courts on the grounds that the applicant had failed to bring evidence that would warrant the reopening of the proceedings and that no new facts or circumstances had been discovered that would have been unknown at the date when the final decision had been taken .

CARDINAL of those requests were dismissed by different panels of ORG on CARDINAL and DATE .

The applicant started serving his prison sentence on DATE . He remained in prison until DATE when he was released conditionally . During his term of imprisonment , he was transferred CARDINAL times between CARDINAL prisons and CARDINAL prison hospitals , as required by his state of health or a number of on - going court cases in which he was involved .

At the beginning of the detention period , it had been recorded that the applicant was suffering from lumbar lordosis ( discopatie lombară ) and psychopathy , the latter having been first diagnosed in DATE . The prison medical records indicate that he had received medical care and treatment for his condition .

During his detention , he was also diagnosed with heart disease , sick sinus syndrome and peripheral vascular disease .

On several occasions he was admitted to prison hospitals for treatment of heart disease and mental illness . He was also prescribed a special diet .

The applicant was held in ORG on several occasions from DATE to CARDINAL DATE and returned there on a number of occasions later in his sentence . He claimed that despite his mental illness he had had to work TIME a day in DATE and DATE . During that time , because of overcrowding , CARDINAL detainees had been sharing one bed .

On DATE the applicant brought an action against CARDINAL members of the commission that had given him permission to work , seeking damages under Articles CARDINAL of the former Civil Code . On CARDINAL DATE ORG dismissed his action on the grounds that he had failed to prove a causal link between the CARDINAL defendants and the alleged damage . On DATE that decision was upheld on its merits by ORG . The applicant ’s subsequent appeal in cassation was declared null and void by ORG in a final decision of DATE , as the applicant had failed to submit the reasons for his appeal within the time - limit .

According to information provided by ORG ( PERSON ) , the applicant was held in FAC CARDINAL times during his sentence , his detention there ranging from DATE to DATE at a time . After DATE smoking was prohibited in all cells and there were designated areas for smoking .

On CARDINAL occasions while detained in FAC , in DATE and DATE , the applicant voluntarily took an overdose of medication . After detoxification , the doctors recommended psychiatric assistance at FAC . After each episode , the applicant was transferred DATE for DATE the first time and DATE the second time DATE to ORG .

On DATE the ORG dismissed as ill - founded an action brought by the applicant against the prison governor and doctor concerning the conditions of his detention in FAC . He complained that he was being held with dangerous detainees and that he had not received adequate treatment for his psychiatric condition . He also complained that the governor had not assisted him in obtaining his pension file from GPE ( a procedure described under point CARDINAL below ) .

The court noted that the applicant ’s placement in one cell or another had been determined by the prison ’s internal regulations and had not been left to the discretion of the governor . It also noted that while the applicant ’s mental illness entitled him to special detention conditions , it did not entitle him to privileges . Concerning the allegations of lack of medical treatment , the court noted that the applicant had received medication , and considered that the prison doctor was not responsible for the fact that the applicant had taken an overdose by swallowing all the pills at once .

The court also noted that the fact that the applicant did not enjoy the food he received was not imputable to either the governor or the doctor , in so far as the applicant could not prove that he had suffered any injurious consequences from his diet .

Lastly , the court noted that the applicant had applied to ORG for an expert evaluation in order to have his pension rights established , and therefore concluded that neither the governor nor the doctor had committed any illegal acts that would render them responsible in this regard ( nu există faptă ilicită ) .

The official prison records indicate that DATE the applicant received QUANTITY envelopes with stamps for his correspondence . CARDINAL other similar requests were refused by the prison administration , either on the basis that the applicant had recently received a large number of envelopes or because he had had sufficient funds in his account to allow him to purchase the envelopes himself . He did not complain about those decisions .

On DATE , CARDINAL and DATE and CARDINAL DATE the applicant asked for permission to visit his sick mother , but his requests were dismissed by the prison board in charge .

It appears that the applicant did not lodge an appeal against the prison authorities’ decision with the courts under Ordinance no . CARDINAL or PERSON no . LANGUAGE ( see paragraph CARDINAL below ) .

On DATE , while in detention in FAC , the applicant applied to ORG for temporary release from prison on the grounds that his family needed his help with farming . He argued before the court that he would return to prison given that if he were released , he could not afford the medical care he had received free of charge in prison .

The court dismissed his application on DATE . The applicant did not appeal against the decision .

On DATE , the applicant informed the ORG that he had problems with his dentition and alleged that the dental care he had received in prison was insufficient .

NORP The applicant received dental care in FAC in DATE and DATE . He had one tooth removed and another treated .

On DATE a medical commission from PERSON ( consisting of a dentist and an accountant ) noted that the applicant had missing teeth and proposed a dental prosthesis plan , while nevertheless noting that “ his dental problems were not significant ” . The dentition model in the medical report shows that the applicant was missing CARDINAL left and CARDINAL right molars . The commission estimated the total cost of treatment at CARDINAL NORP lei ( PERSON ) , of which CARDINAL ORG were payable by the applicant . Their estimate was based on Order No . CARDINAL/CARDINAL of DATE issued by the Minister of ORG together with the President of ORG ( PERSON a ORG ) .

The commission noted , however , that the applicant had no money available in his account and that PERSON lacked the facilities necessary to treat the applicant .

In DATE the applicant lodged a complaint before the NORP ORG against ORG and others , the heirs of ORG , seeking damages of CARDINAL old NORP lei ( ROL ) , representing the value of goods and cattle that he claimed he had lent to GPE

On DATE ORG dismissed the action as time - barred . That decision was upheld by ORG .

In DATE the applicant lodged another complaint against the heirs of GPE , seeking to compel them to pay interest on an alleged loan of CARDINAL ORG that he had made to ORG His action was dismissed in a final decision of DATE by ORG on the grounds that the applicant had not proved that the initial loan was ever made .

On DATE the applicant lodged an action against the GPE local authorities , seeking restitution of CARDINAL calves and a CARDINAL pig , which had allegedly been confiscated from him by the communist authorities in DATE . He claimed that in DATE the local authorities had informed him that they had returned the animals to GPE

On DATE the NORP ORG found that the applicant had failed to adduce any proof of his allegations and dismissed the action . By a final decision of CARDINAL DATE ORG declared his appeal null and void as he had not paid the relevant court fees .

In a decision of CARDINAL DATE the authorities declared the applicant unfit for work due to a pre - existing condition that had worsened during his military service .

On an unspecified date during his detention the applicant requested that an invalidity pension be paid to him .

At the request of ORG ( “ the ORG ” ) on DATE the applicant underwent an expert evaluation by ORG to determine his capacity for work ( ORG expertiză medicală şi recuperare a capacităţii de muncă ) . The evaluation report confirmed the applicant ’s invalidity and set CARDINAL DATE as the date for review of his situation .

ORG asked ORG assessment ( ORG FAC – “ the ORG ” ) to express its opinion on the expert report issued in DATE . ORG confirmed the previous assessment , but added that the DATE decision did not entitle the applicant to an invalidity pension . It therefore suggested that ORG evaluate the applicant ’s situation in the light of LAW ( Law No . CARDINAL/CARDINAL ) .

On DATE ORG decided not to grant the applicant an invalidity pension , as he did not meet the requirements set forth in LAW . The decision was upheld by ORG on DATE and by ORG in a final decision of DATE .

The domestic legislation on the execution of sentences , in particular PERSON no . TIME , Emergency Ordinance no . CARDINAL on the rights of prisoners ( Ordinance no . CARDINAL ) , and PERSON no . CARDINAL/CARDINAL on the execution of sentences ( PERSON no . CARDINAL/CARDINAL ) are described in LOC v. GPE ( no . MONEY , § § DATE , DATE ) . The situation as regards dental care in the NORP prison system is described in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .


The applicant is a NORP citizen , born in DATE and currently resident in GPE , GPE . Before the ORG he is represented by Ms. PERSON , legal adviser at FAC , GPE .

On DATE the applicant was convicted at ORG of threatening behaviour likely to cause harassment , alarm or distress , contrary to section CARDINAL of LAW DATE . He was fined £ MONEY .

The applicant appealed . His appeal was heard on DATE at ORG by a judge and CARDINAL lay justices . The appeal was dismissed , and the court adjourned the sentence for full psychiatric and medical reports for DATE . The court remanded the applicant in custody for that period , without considering whether to grant bail . It appears that the conditions for remanding the applicant in custody under LAW DATE were not satisfied , and that the applicant was entitled to bail .

Prior to remanding the applicant in custody , the judge enumerated the applicant 's previous convictions . The applicant had been conditionally discharged for DATE after CARDINAL of these . The applicant admitted being in breach of the conditional discharge . No action was taken in respect of this breach either by ORG or by ORG .

On DATE the applicant appeared before the same judge . The psychiatric report revealed nothing material and the judge purported to pass a sentence of DATE imprisonment retrospectively . Defence counsel pointed out that the offence under LAW was not punishable by imprisonment . The judge then imposed a conditional discharge for DATE ( in substitution for the previous sentence ) .

In a letter to ORG dated DATE , ORG stated that , in their view , the learned judge had indeed erred and counsel for the respondent had regrettably failed in his duty to assist the learned judge . The applicant was granted legal aid to make an application to ORG for judicial review of the judge 's decision to remand him in custody . On DATE the application for judicial review of the remand in custody for psychiatric reports was granted . ORG made a declaration in the following terms : “ that the applicant 's remand in custody was unlawful ” .

On DATE , the applicant ’s solicitors addressed a request to the Lord Chancellor 's Department for “ substantial damages by way of compensation for his unlawful imprisonment ” . On DATE , ORG informed the solicitors that it could not pay compensation , as ex gratia compensation from ORG was limited to cases where “ the court staff are guilty of maladministration or negligence ” . It indicated that ORG could not pay compensation for loss or damage arising from judicial decisions .

An opinion from counsel of DATE confirmed that no action lay against the Lord Chancellor 's Department , and added that , similarly , no action lay against the judge , the justices , ORG or ORG .


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is an NORP national , who was born in and is currently serving a prison sentence in GPE , GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE , GPE .

ORG ( “ the Government ” ) were represented by their then Agent , PERSON , and , subsequently , by PERSON of ORG .

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

On DATE ORG ( “ the ORG ” ) convicted the applicant in absentia of aggravated offences relating to procurement of prostitution ( DATE of LAW ) . He was sentenced to DATE imprisonment and fined . He was represented by a lawyer ( PERSON ) , who had been appointed by his family .

On DATE and DATE , following PERSON ’s appeals , the applicant ’s conviction was upheld by ORG ( “ the ORG ” ) and , later , by ORG .

On DATE the applicant was arrested in GPE by the NORP police on the strength of an NORP arrest warrant . On CARDINAL DATE the NORP authorities requested his extradition .

In the course of the extradition proceedings , ORG requested the NORP authorities to give an assurance that the applicant would be re - tried if extradition were to take place .

On DATE the NORP Minister of Justice ( “ the Minister ” ) informed the NORP authorities that the applicant could lodge a request to appeal out of time . The relevant parts of the Minister ’s letter read :

“ With reference to the request made concerning a right to retrial on behalf of PERSON given his trial in absentia , we hereby inform you that the person in question may effectively exercise his right to request an appeal out of time in accordance with LAW of LAW within DATE of his hand - over in GPE . ”

On the basis of that assurance the applicant was handed over to the NORP authorities on DATE .

On DATE the applicant lodged a request for leave to appeal out of time against his conviction . On DATE ORG dismissed the request on the ground that his conviction in absentia had become final and had acquired the force of res judicata . It found that the applicant had effectively exercised his right of appeal , since his representative , who had been appointed by the applicant ’s family , had appealed against the judgment of DATE .

On DATE , DATE and DATE the applicant ’s appeals were dismissed by ORG , by ORG and by ORG , respectively .

NORP The relevant provisions of the ORG concerning an application for leave to appeal out of time are as follows :

Article DATE Counsel appointed by the defendant

“ CARDINAL . The defendant has the right to appoint CARDINAL counsel .

The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel .

The appointment of a counsel for a person detained , arrested or sentenced to imprisonment , unless he has appointed a counsel of his own choosing , may be carried out by his relatives in accordance with the procedure stipulated in paragraph CARDINAL above ” .

Article DATE Leave to appeal out of time

“ CARDINAL . The prosecutor , the defendant , the private parties and the defence counsel may request the reopening of the time if they establish that they had no possibility to comply with the time - limit owing to unforeseen events or force majeure .

In the event of conviction in absentia , the accused may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge .

A request for the reopening of the time allowed for appeal must be lodged within DATE of the date of the cessation of unforeseen events or force majeure [ in respect of paragraph CARDINAL ] , and in respect of paragraph CARDINAL [ within DATE ] of the date on which the defendant effectively acquires knowledge of the decision . ( ... )

The decision on the reopening of the time allowed for appeal [ against a judgment ] may be appealed against in conjunction with the decision on the merits of the case .

An appeal may be lodged with ORG against the decision refusing an application for leave to appeal out of time ” .

Article DATE The defendant ’s appeal

The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law .

In its unifying decision no . CARDINAL of DATE ORG ruled that , having regard to its strictly personal character , an application for leave to appeal out of time should be lodged only by the defendant or a lawyer appointed by him , within DATE of the date on which the defendant was effectively informed of the decision given in absentia . This right could not be exercised by the defendant ’s family members if the defendant was not realistically aware of the decision in absentia . The application for leave to appeal out of time should be examined by ORG , sitting in a CARDINAL - judge formation . ORG decision could be appealed to ORG and , thereafter , to ORG .

NORP In response to a referral request by ORG on the constitutionality of ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG , by way of decision no . CARDINAL of DATE , ORG decided that the appointment of a lawyer or counsel by a family member should be accepted by the domestic courts in so far as it could be established that this constituted an explicit manifestation of the defendant ’s intention not to attend the proceedings . The same reasoning applied to a request for leave to appeal out of time made by counsel appointed by the defendant ’s family . The authorities should establish that the defendant did not have effective knowledge of his conviction in absentia and whether the defendant had effective knowledge of the appointment of counsel by his family .


András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

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

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

On DATE the applicant , at the material time Vice - President of ORG ) , a registered left - wing political party , was convicted by ORG under LAW ( CARDINAL ) of LAW of the offence of having worn a totalitarian symbol in public . The court observed that the applicant had worn a CARDINAL - pointed red star and a sickle - and - hammer logo on several occasions of public appearance .

The applicant was sentenced to a criminal fine of MONEY ( ORG ) and ordered to pay another ORG CARDINAL in criminal costs .

On DATE ORG upheld this judgment .

On DATE ORG adopted a judgment in a case introduced by the applicant on account of a previous conviction similar in nature ( PERSON v. GPE , no . CARDINAL , DATE ) . The ORG held that prosecution for having worn a red star amounted to a violation of the applicant ’s freedom of expression enshrined in LAW . In pursuit of this judgment , on DATE ORG acquitted PERSON in review proceedings holding that his incriminated act no longer represented danger to society .

Act no . DATE on LAW provides :

“ ( CARDINAL ) A criminal offence is an act perpetrated intentionally or DATE if the law also punishes negligent perpetration – by negligence , which represents a danger for society and for which the law orders the infliction of punishment .

( CARDINAL ) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional , social or economic order of GPE , or the person or rights of citizens . ”

“ ( CARDINAL ) Any person who ( a ) disseminates , ( b ) uses in public or ( c ) exhibits a swastika , an ORG - badge , an arrow - cross , a symbol of the sickle - and - hammer or a CARDINAL - pointed red star , or a symbol depicting any of them , commits an offence – unless a more serious crime has been committed – and shall be sentenced to a fine .

( CARDINAL ) The conduct prescribed under paragraph ( CARDINAL ) is not punishable if it is done for the purposes of education , science , art or in order to provide information about history or contemporary events .

( CARDINAL ) PERSON ( CARDINAL ) and ( CARDINAL ) do not apply to the insignia of GPE which are in force . ”

Act No . XIX of DATE on Criminal Procedure provides :

“ ( CARDINAL ) [ ... R]eview proceedings may be initiated ... if ... ( a ) a person ... was convicted ... in breach of the substantive provisions of criminal law ... ”

“ ( CARDINAL ) The rules of third - instance proceedings ( LAW ) shall be applicable to the conduct of the review proceedings ... ”

“ ( CARDINAL ) The third - instance court may reverse the second - instance court ’s judgment and adopt a lawful decision if the second - instance court gave its judgment in breach of the [ substantive ] provisions of criminal law ... provided that the findings of fact are well - founded or their deficiency could be rectified before the third - instance court . ”

In case no . PERSON . II.CARDINAL/CARDINAL/CARDINAL ( judgment of DATE ) which concerned the prosecution of a Mr F. for having displayed a red star , ORG examined in detail whether or not PERSON conduct represented any danger to society DATE an element inherent in the notion of a crime within the meaning of section CARDINAL of LAW ( see above ) DATE and this in particular in the face of the PERSON judgment cited above .