WOONBRON VOLKSHUISVESTINGSGROEP & OTHERS v. THE NETHERLANDS

The applicants are CARDINAL housing associations . Their names are set in the appendix to this decision . They are represented before the ORG by PERSON N. PERSON and PERSON , both lawyers practising in GPE .

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

The aim of the applicant associations is to construct and renovate housing for renting purposes on a non - profit - making basis . Their profits are used for financing the construction of new housing or for the renovation of existing housing . In the field of public housing in the GPE , associations like the applicants hold a prominent place in that they provide good standard housing at a relatively low cost on a large scale . ORG provides financial support to housing associations by , inter alia , subsidising their public housing construction projects .

On DATE , the Order on Financial Support for Rented Housing ( PERSON geldelijke steun huurwoningen – the “ ORG ” ) , as published in the Bulletin of Acts and Decrees ( Staatsblad ) DATE , CARDINAL , entered into force . In the ORG , the ORG Secretary for ORG , PERSON en Milieubeheer – “ the ORG Secretary ” ) introduced a financing system for subsidised public housing , i.e. the so - called “ dynamic cost price ” ( “ DCP ” ) method , in combination with a scheme where financing takes place by way of loans geared to the subsidies granted .

Under the ORG , the ORG Secretary may , in a decision granting a subsidy for a total duration of DATE for a housing construction project , stipulate that such a loan is a ORG loan ( rijkslening ) or direct the housing association concerned to the private capital market for a loan . Both the ORG and capital market loans were endowment loans ( klimleningen ) , i.e. loans in which the loaned capital sum initially increases by adding part of the interest to the loaned sum , whereas actual repayment only starts after DATE . The idea is that the repayment of the loan is financed in part by presumed rent increases . The calculation of the DCP was based on the principle that during the total exploitation period of a dwelling , which was set at DATE , the revenues would cover the standardised costs . To this end a “ cost price rent ” was determined , indicating what amount would be required DATE given the interest on and repayment of the loan – to meet this objective , as well as a hypothetical development of rent payments and exploitation costs during the entire period of exploitation . The DCP rent was not DATE determined , but calculated on the basis of the total standardised costs over the entire period of exploitation . On the assumption that rents would increase in the future , the DATE rent would be low during the initial exploitation period . As a consequence of this form of calculation , during the first DATE of exploitation , the annual exploitation costs exceeded the revenue , thus creating a liquidity and exploitation deficit which required the house owners to contract a loan . Hence , endowment loans were developed . The initial liquidity deficit would be added annually to the balance sheet value of the dwelling concerned . In DATE of exploitation , the rents would have increased to such a level that the accrued debt could be repaid rapidly . In comparison to previous subsidy methods , the advantage of this system was that at a constant rent level , a lower ORG contribution to the costs sufficed . The characteristic feature of the system under the ORG was that the initial subsidy would be low , subsidy costs in principle being projected to the future by anticipating future rent increases . The DCP rent was calculated in principle for DATE period and a subsidy was awarded for the whole period with a review of the cost price rent DATE , following a possible adjustment of the set parameter values .

The construction of public housing was initially solely financed by ORG loans but , for budgetary reasons , the ORG Secretary directed housing associations as from DATE more and more often towards the private market . The housing associations considered that their aims would be put in jeopardy with this tendency towards private loans unless the conditions for capital market loans were eased .

On the basis of assurances given by the ORG Secretary to ORG ( ORG ) of ORG that this method of financing would not have negative financial consequences for the tenants concerned , if necessary with extra ORG subsidies being provided , the housing associations started to make investments with capital market loans . A situation thus developed in which public housing building projects were financed by both private and ORG loans , and were subsidised for a total duration of DATE in accordance with the DCP method . During DATE period of exploitation , the subsidy for all public housing was calculated in the same manner . As a result of the application of the DCP method , the ORG could limit itself to relatively low subsidies during DATE of exploitation .

In DATE , the then Government felt that it was no longer desirable that subsidy costs be projected in the future and decided to neutralise this feature by removing the dynamic character of the cost price rent . This implied that the rent parameter was set at PERCENT , which would result in an increase in the subsidy level . This proved to be easier in cases concerning ORG loans than in those concerning capital market loans . As to the latter category , the removal of the dynamic character was still not fully implemented by DATE . The ORG Secretary blamed this on the uncooperative attitude of the private lenders who refused to amend the terms of the housing association loans in accordance with the terms unilaterally prescribed by the ORG Secretary .

The housing associations considered that the ORG Secretary had failed to appreciate that the private lenders had no objection to increased ORG subsidies , thereby implementing the removal of the DCP element for this form of rented accommodation .

The ORG Secretary eventually decided , as regards DATE subsidy period , to remove the dynamic character of the cost price rent for all public housing , with the exception of such housing financed by the private market . To this end , the ORG Secretary issued ORG geldelijke steun huurwoningen – the “ OR ” ) , as published in the Bulletin of Acts and Decrees DATE , CARDINAL , which entered into force on DATE .

Under the OR , the rent parameter for dwellings financed by ORG loans was set at PERCENT , whereas the dynamic parameter for dwellings financed by the private market was set at PERCENT . As regards the latter housing category , the ORG Secretary could limit himself to a considerably lower subsidy level , as it was assumed that the rent revenues would increase with the passage of time . In practice , however , the PERCENT rent increase was not attained , which created considerable financial difficulties for some of the housing associations . In addition and contrary to previous assurances given by the ORG Secretary – upon which the housing associations had based their investment policies – the level of subsidies in respect of social housing financed by the private market was considerably lower than that financed by ORG loans .

In unsuccessful administrative proceedings instituted on DATE , the tenth applicant association ( see PERSON ) argued inter alia that the rules set out in the OR as to this financing system were contrary to the principle of equal treatment . On appeal , ORG ( Afdeling Bestuursrechtspraak ) of ORG held , on DATE , that it had not been established that the ORG Secretary had given any undertakings about the removal of the dynamic factor concerning privately financed public housing . Insofar as the ORG Secretary had undertaken to compensate the higher costs of private financing , ORG considered that this undertaking had been respected as the housing associations , including the tenth applicant , had been compensated by extra subsidies . It further rejected the argument that the principle of equal treatment had been violated . It held that ORG and private financing systems were not comparable and that all mixed stock housing associations had met with the same treatment .

In the meantime , on DATE , the LAW of CARDINAL DATE on the Removal from ORG ( PERSON geldelijke steun volkshuisvesting – “ the LAW ” ) had entered into force . The aim of this LAW was to redeem the long term subsidy commitments for public housing in one go by offsetting in the balance sheet of housing associations the net cash value of the ORG ’s outstanding subsidy commitments to housing associations against unpaid ORG loans . For the determination of the net cash value amount for public housing financed by private loans , a dynamic rent parameter was to be applied . This was not the case for public housing financed by ORG loans . According to the applicant associations , a disadvantageous and unequal treatment under the OR was thereby perpetuated in respect of housing financed by the private sector for the remaining DATE subsidy periods ( CARDINAL in all ) .

Prior to the adoption of the LAW , the applicant associations attempted to challenge these matters by way of a petition ( rekest ) on DATE to ORG for an advisory opinion on the then draft legislation . In their petition , the applicant associations argued inter alia that the redemption arrangement set out in the Draft Bill was in violation of property rights and constituted unjustified unequal treatment . ORG acknowledged receipt of the petition but , in its advice to the Government on the Draft Bill , it did not explicitly address the issues raised by the applicant associations . According to the applicant associations , the negative consequences of the redemption arrangement were also insufficiently understood in the subsequent discussions in ORG .

DATE , the Minister of Housing , Town and Country Planning and Environment ( Minister PERSON , PERSON en Milieubeheer – “ the Minister ” ) issued the first decisions within the meaning of LAW to all the applicant associations . With the exception of the eleventh applicant association ( see PERSON ) , the applicant associations filed a joint objection against these decisions with the Minister . The Minister rejected their objection on CARDINAL DATE . The applicant associations then appealed to ORG on DATE .

In its decision of DATE , ORG dismissed the appeal . This decision , insofar as relevant , states :

“ ORG considers that it appears from the drafting history of the LAW that it intends to set off existing subsidy commitments of the ORG towards < housing associations > against outstanding ORG loans held by these institutions . These commitments encompass DATE financial contributions still to be paid and lump sums for the construction of new housing and for < housing > improvement on the basis of subsidy arrangements prior to DATE . The setting off of commitments against payment claims is being described as ‘ the removal from the balance PERSON balansverkorting ) . The aim of this is to attain further independence for the leasehold sector , control over public expenses and sound rent development . In the calculation of the present DATE contribution , account is being taken of the starting - points of variable exploitation costs , rent development and interest . The Act sets parameters on the basis of which this series of DATE contributions is calculated beforehand . It appears from LAW ( c ) of the LAW that the parameter for the annual rent increase is dependent on the form of financing the housing . This implies that , as regards housing financed by capital market loans , the dynamic cost price method remains in force , whereas for housing financed by ORG loans the rent parameter is set at CARDINAL . This difference has in any event already come about with the entry into force of LAW on financial support for rented housing .

As from DATE ( the reference date ) , the series of DATE contributions and < other financial > contributions for the construction of new housing and for < housing > improvement , on the basis of subsidy arrangements prior to DATE that were still to be paid , were rendered payable in cash at once . Furthermore , on the reference date the outstanding loans were rendered redeemable .

As regards the appellants’ objections against the difference made in the LAW in the calculation of the cash value ... between the parameters for housing financed by ORG loans and for housing financed by capital market loans , ORG finds that these objections are primarily aimed against the LAW as such , which is a statute ( wet in formele zin ) .

Pursuant to LAW ( PERSON ) , the judge can not examine the constitutionality of statutes and treaties . Having regard to LAW , no appeal lies against the LAW , it being a general , binding rule . The reasonableness and equity of the LAW can not , therefore , be examined by the judge . This is not altered by the fact that the LAW is a continuation of the policy already set out in LAW on financial support for rented housing . Neither can the compatibility of the LAW with the general principles of proper administration ( algemene beginselen van behoorlijk bestuur ) be examined .

In this connection , the appellants have argued that the lack of a possibility to subject the lawfulness of a statute to judicial review is contrary to LAW . ... As to this argument , ORG considers that it follows from this provision < of ORG , for cases referred to in this provision , must guarantee access to an independent and impartial tribunal without , however , setting criteria on the basis of which the matter in dispute must be examined . Already for this reason it can not be deduced from this provision that the absence of a possibility to examine the lawfulness of the LAW , as such , is incompatible with the right set forth in < LAW Since the law provides for the possibility to submit disputes like the present one to ORG of ORG , no violation of LAW arises .

Insofar as the appellants have submitted that the LAW is contrary to < LAW Protocol No . CARDINAL > , ORG considers as follows . ...

In the opinion of ORG it can not be successfully maintained that the change in payment of < financial > contributions to be provided by the ORG in connection with the financing of housing owned by the appellants entails a violation of LAW No . CARDINAL to the Convention . In reaching this conclusion , account has been taken of the fact that , with the introduction of the LAW , the ownership rights in the housing and the entitlement to ORG contributions have not , as such , been affected or limited . The LAW merely brought about a change in the payment of ORG contributions , namely , instead of DATE contributions to the appellants , the cash value of those contributions is paid after these have been set off against the obligations < arising out of loans contracted>. In the calculation of the value of the DATE contributions , an DATE rent increase of PERCENT is assumed , whereas under the system of DATE payment of the contributions , in force until DATE , those increases for the appellants’ housing stock at issue were set at PERCENT .

There is also no violation of the prohibition on discrimination as set forth in ... LAW The LAW is applicable to various sorts of housing belonging to those institutions indicated in LAW prior to DATE , including housing associations . It is true that in LAW different parameters are used for different housing complexes , but this difference is linked to the difference between the regulations under which , at that time , the financial contributions have been awarded for these houses and with the form of their financing . The difference made by the LAW is not an aspect connected to a difference in the nature , trait or characteristic of the beneficiary of the contributions . All < housing associations > are treated equally as regards housing created under the same regulation and financed in the same manner .

Insofar as the appellants have argued that the LAW should not be applied in their < particular > cases as it violates the general principles of proper administration ... < or > general principles of law ( algemene rechtsbeginselen ) , ORG considers as follows :

Even assuming that in very exceptional cases the LAW , at least in part , should not be applied on the ground of being contrary to the general principles of law , this does not arise in the present case . In reaching this finding account has been taken of the fact that it does not concern a situation that was not foreseen in the establishment of the LAW . Having regard to the parliamentary consideration of the PERSON which resulted in the LAW , it can not be maintained that ORG was not aware and did not take into consideration the problems now advanced by the appellants . It has moreover not been shown that the – unforeseen – concrete financial situation of the appellants as a consequence of the application of the LAW is so serious that measures should be taken . It follows from the above that a ( subsidiary ) obligation to < award > administrative compensation ( bestuurscompensatie ) < on the basis of equity for negative consequences stemming from acts of ORG , as contended by the appellants , does not arise either . ”

Since DATE , an unspecified number of applicant associations have received a final decision , within the meaning of LAW , and some of them have filed an objection with the Minister against these decisions , requesting an adjournment pending the outcome of the present application to the ORG .

The eleventh applicant association received such a final decision on DATE . In its objection filed with the Minister , it requested an adjournment pending the outcome of the present application to the ORG . The Minister granted this request on DATE .

Under LAW ( Woningwet – “ the LAW ” ) , a municipal council ( gemeenteraad ) may grant recognised institutions , within the meaning of LAW , financial support in order to meet costs incurred or to be incurred by such institutions in the interests of public housing . Costs recognised as such include the exploitation costs of dwellings and their annexes ( LAW of LAW ) . This financial support can be provided by way of awarding DATE contributions ( Article CARDINAL § CARDINALd of LAW ) . Institutions within the meaning of LAW are associations and foundations whose sole aim is to work in the field of public housing without making any payments other than in the interests of public housing .

The practical implementation of these provisions of LAW were set out in ORG geldelijke steun volkshuisvesting – the “ BGSV ) , as published in the Bulletin of Acts and Decrees ( Staatsblad ) DATE , CARDINAL .

Under LAW of the PERSON , loans may be granted to municipalities for the purposes set out in LAW by a decision of ORG ( Minister PERSON , PERSON en Milieubeheer – “ the Minister ” ) . Under LAW of the BGSV , municipalities may be awarded DATE grants for the purposes set out in LAW § CARDINALe of LAW . Pursuant to LAW , the Minister is to set further rules on the amounts of those grants .

These further rules were issued in the DATE Order on Financial Support for Rented Housing ( PERSON geldelijke steun huurwoningen – the “ ORG ” ) , as published in the Bulletin of Acts and Decrees DATE , CARDINAL . According to LAW ORG , the DATE grant for DATE of exploitation of the first term of DATE is the difference between the amount of the dynamic cost price rent at DATE term and the amount of the annual rent , as calculated in accordance with a table set out in GPE I to the ORG . The dynamic cost price rent is the rent calculated at the beginning of the exploitation and after each term of DATE that is necessary DATE under the assumption set out in LAW ORG as to the development of both rents and exploitation costs – to attain with the exploitation , DATE and as a minimum , the revenues envisaged in LAW ORG over the capital invested in DATE ( LAW of the ORG ) . The calculation of the dynamic cost price rent at DATE term and any subsequent term is based on the assumption that , at the beginning of that term , rents are increased DATE by the percentage set out in DATE of ORG ( GPE woonruimte ) . The system for the calculation of the annual contributions after DATE of exploitation were set out in LAW of the ORG .

According to LAW ( Bulletin of Acts and Decrees DATE , CARDINAL ) , the DATE ORG was withdrawn as of DATE . It was replaced by LAW geldelijke steun DATE the “ OR ” ) . Under the OR , the calculation of the dynamic cost price rent at the beginning of the second DATE term is to be based on an assumed rent increase of PERCENT per year ( LAW .

In a Circular ( Circulaire ) , published in the Bulletin of Acts and Decrees DATE , CARDINAL , the ORG Secretary set out the policy for subsidising rented housing . This policy entailed the removal of the dynamic character of the exploitation of existing housing . To this end , the determination of the dynamic cost price rent for the second and subsequent DATE terms for housing financed by ORG loans was to be based on an assumed PERCENT increase of both the rent and exploitation costs . The scheme for the payment of the interest and the ORG loan was to be adapted accordingly .

The aim of this new policy was to attain a situation in which the remaining debt for the new housing would no longer be increased by the passage of time so that DATE given limited inflationary developments – a better balance would be achieved between the balance sheet value and the real value of housing . This also applied for already existing housing . By setting the relevant parameters at CARDINAL , the postponement of costs to the future could be prevented . The ORG Secretary considered it desirable that these costs be covered directly , thus mitigating the long - term autonomous increase of housing project subsidies as a result of previously undertaken commitments . In respect of housing projects that were financed by capital market loans , it had appeared that a mid - term change of agreed loan conditions as to scheduled repayment met with problems from the capital providers , whereas this situation did not arise in the case of housing financed by ORG loans . In these circumstances , it was decided to differentiate between housing financed by ORG loans and other housing .

Following an agreement reached between the ORG Secretary and representative organisations of housing associations , a PERSON was prepared enabling the setting off of outstanding subsidy commitments against unpaid ORG loans . In this manner , housing associations would have greater possibilities for an independent financial policy , whereas the total housing budget of ORG , Town and Country Planning and Environment would be almost halved .

On DATE , the resulting Draft Bill on the removal from the balance sheet of financial support for public housing was submitted to ORG for an advisory opinion . ORG issued its advice on DATE . On the basis of its recommendations , certain amendments to the Explanatory Memorandum of the Draft Bill were made . The PERSON was subsequently submitted to ORG for approval .

On DATE , the Act on the Removal from ORG ( PERSON geldelijke steun volkshuisvesting – “ the DATE LAW ) was adopted . It entered into force on DATE .

Under the provisions of LAW , the Minister is to determine for each housing association recognised by a municipality the amount of the cash value on DATE of the still outstanding subsidy commitments for their housing stock ( LAW . The procedure for the determination of this cash value is set out in LAW . The Minister initially determines the cash value in a first decision taken on the basis of information already available ( LAW ) . The Minister subsequently requests the housing association and the municipality concerned to submit relevant data and documents required for a second and final determination of the cash value ( LAW ) . This final determination is to be made within DATE of the first decision ( LAW ) .

Under the provisions of LAW , the dynamic cost price rent calculation is abolished for all categories of subsidised housing , including housing subsidised by ORG loans and by capital market loans . The calculation percentages on which previous subsidy decisions were based are to be respected whereas , for the intended DATE subsidy awards made under the previous system , fixed percentages apply . LAW provides :

“ For DATE period starting on or after DATE account shall be taken , where financial support has been given in application of the DATE Order on Financial Support for Rented Housing ... , of a dynamic cost price rent ... on the understanding that the calculation thereof starts from :

a. an DATE increase of the variable exploitation costs by PERCENT ;

b. a revenue over the invested capital of PERCENT ; and

c. an DATE rent increase of PERCENT for housing for which , at the time of the award of financial support , a < ORG > loan .... has been provided , and of PERCENT for other housing . ”

Under LAW , the cash value of the outstanding housing subsidy commitments is to be offset against unpaid ORG loans that have been rendered immediately redeemable in full , thus resulting in a removal of outstanding subsidy commitments from the balance sheet of each housing association .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national who was born in GPE , GPE in DATE and is currently detained in ORG , PERSON . His application was lodged on DATE . He was represented before the ORG by PERSON of ORG , a lawyer practising in GPE .

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

After obtaining a degree in physics and mathematics from ORG , GPE , the applicant became a mathematics teacher .

In DATE the applicant was arrested by ORG . He was detained for DATE before being released without charge . During this period of detention he alleges that he was tortured . According to the applicant , he was repeatedly punched in the face and body while bound and blindfolded ; he was knocked unconscious ; he was attached to a wheel and beaten on his face , hands and feet with an electric cable ; he was electrocuted with electrodes attached to his arms and legs ; and he was hung from the ceiling and sexually tortured .

In DATE the applicant fled GPE . In DATE he arrived in GPE and claimed political asylum . It was accepted that he had a well - founded fear of persecution if returned to GPE and in DATE he was granted Indefinite Leave to Remain in GPE as a refugee .

On DATE the applicant was arrested at his home . Following a search of the applicant and his home , police officers found a plastic bag containing CARDINAL plastic bottles , each containing a liquid and a solid mixture , a handwritten document in LANGUAGE with diagrams , CARDINAL bags of fertilizer pellets , CARDINAL bags containing small pieces of aluminium foil , an MPCARDINAL audio player , a desktop computer and a ORG memory stick . An analytical chemist confirmed that the contents of the bottles were flammable . Although incapable of causing an explosion , had the applicant used higher grade ingredients , he might have been able to construct a viable bomb . A translation of the NORP document appeared to give instructions on the construction of an improvised explosive device . The audio player and computer devices were found to contain some NORP material of an extremist nature .

The applicant was interviewed at length by police . He denied trying to make a bomb or that he had a terrorist purpose . He claimed that he was trying to make fireworks for the Eid festival at DATE and that the NORP instructions were for a friend who was going to test the fireworks .

DATE the applicant stood trial before a judge and jury at ORG . He was charged with CARDINAL count of preparing a terrorist act contrary to LAW . The prosecution case was that the applicant had been trying to make a bomb with the intention of committing an act of terrorism or assisting someone else to do so .

The applicant did not give evidence . He called a number of witnesses , including Dr PERSON , a consultant psychiatrist who specialised in the treatment of torture victims . PERSON concluded that the applicant was suffering from severe post - traumatic stress disorder and moderately severe depression . His symptoms included severe anxiety , loss of energy , loss of self - esteem , loss of appetite , feelings of guilt , recurrent thoughts of death , frequent angry outbursts , paranoia , difficulty concentrating , persistent flashbacks , vivid memories and recurrent nightmares of his torture . Furthermore , PERSON noted that the applicant had been consistently self - harming whilst in custody at ORG and ORG prisons and during his trial . He had made significant attempts to cut the arteries in his arms . He also had minor lacerations to his forearms and minor scratching to his throat .

PERSON identified CARDINAL reasons why he considered that it would be undesirable for the applicant to give evidence . First , he believed it likely that the applicant would become so hyper - aroused when being questioned by someone perceived to be hostile that he would lose selfcontrol . Frequent angry outburst during cross - examination by the prosecution could prejudice the jury against him . Secondly , the stress of giving evidence might lead to an inability to concentrate and remember which would impair his ability to answer questions appropriately . This could have a direct impact on the quality of his evidence . Thirdly , the stress of giving evidence would almost inevitably result in an increased risk of significant self - harm .

Although the applicant had refused to co - operate with PERSON , the consultant psychiatrist instructed by the prosecution , PERSON agreed that the applicant suffered from post - traumatic stress disorder . However , he was unable to form any opinion one way or another about the undesirability of the applicant giving evidence .

Following the close of evidence , the applicant made an application pursuant to sections CARDINAL(CARDINAL)(b ) and CARDINAL ) of ORG LAW DATE ( “ the DATE LAW ) that the judge should rule that it was undesirable for the applicant to give evidence due to his medical condition and , consequently , that the judge should not direct the jury that they might draw such adverse inferences as appeared proper from the failure of the applicant to give evidence .

The judge accepted that the applicant suffered from post - traumatic stress disorder , largely as a result of being tortured in GPE , and that he would find it difficult to be questioned by anyone he perceived as hostile . He also accepted that the applicant had been self - harming for some time , and that the stress of giving evidence could well lead to an increased risk of self - harm . Nevertheless he refused the application and held that it was not undesirable for the applicant to give evidence . He did not accept that the applicant ’s presentational problems would seriously prejudice the jury and he did not consider there to be a significant risk that the applicant would forget the basic chemistry or physics which the case involved . Moreover , the judge noted that in view of the importance of the applicant ’s evidence to the case , he could not conclude that his psychiatric problems made it undesirable for him to give evidence , even if it resulted in an increased risk of self - harm .

The judge noted , however , that it was for the jury to reach a decision as to whether they should draw an adverse inference against the applicant or not . In his summing up , he directed the jury as follows :

“ The second matter which arises from his silence is that it could count against him . It does n’t have to but it could . This is because you could come to the conclusion that he has not given evidence because he has no answer to the prosecution ’s case , or at least none that would stand up to being tested by cross - examination .

If you do draw that conclusion against him you must not convict him wholly or mainly on the strength of it . You must look for other evidence of guilt and use his failure to give evidence as some additional support for the prosecution case . It ca n’t stand alone , but it can support something else .

You should only draw this conclusion against him if you think it is a fair and proper conclusion to draw . If it is not a fair and proper conclusion to draw , then you should not hold his silence against him in any way at all . And before drawing that conclusion against him you must also be satisfied CARDINAL things . The first is that the prosecution ’s case is so strong that it clearly calls for an answer from him . The reasoning is that if the prosecution ’s case is nothing , if you add nothing to it you are still left with nothing , so there has to be a case against him on the prosecution evidence which calls for an answer . The second element is that the only sensible explanation for his silence is that he has no answer to give or at least not one which would stand up to cross - examination .

In this case the defence suggest that there is a different reason why he has not given evidence , namely , that he has a mental condition which would affect him as a witness if he gave evidence in CARDINAL ways : firstly , that there is a real risk that he would lose his self - control and end up giving a bad impression of himself in the witness box ; secondly , that the stress of giving evidence may mean that he ca n’t concentrate on what he ’s saying , may forget things that he wanted to say . The third element is that the stress of giving evidence would result in an increased risk of him causing harm to himself : self - harming . So there are those CARDINAL strands to the defence explanation , reason , why he has not gone into the witness box .

I will come back to the detailed evidence about those matters in just a moment or CARDINAL , but if you accept the defence explanation for his not giving evidence and you think that this amounts to a reason why you should not draw any conclusion against him from his silence then do not do so . Otherwise , subject to what I have said , you are entitled to draw a conclusion against him from his silence if you think it is a fair and proper conclusion to draw . ”

The judge then summarised the medical evidence in some detail for the jury . In the transcript of his summing up , this summary exceeded CARDINAL pages .

On DATE the jury convicted the applicant and the judge sentenced him to CARDINAL years’ imprisonment . The judge reduced his original sentence of DATE to take account of the applicant ’s serious mental health condition .

On DATE the applicant was granted leave to appeal against his conviction . On DATE ORG dismissed the appeal . The court noted that :

, one can see that if the only issue to which his evidence could go was one of very peripheral significance the judge would be entitled to take that into account in concluding that it was undesirable for him to give evidence .

In the present case reading the judge ’s ruling as a whole , it is perfectly clear to us that the judge ruled that the risk of self - harm was not such in his judgment to make the giving of evidence undesirable and he went on to add that it did not become undesirable because any evidence that the defendant might give would be of insignificant relevance . That approach was , we are satisfied , one which the judge was quite entitled to take .

We agree with the broad conclusion of PERSON ( as he then was ) in R ( on the application of ORG ) v PERSON . The question posed by section CARDINAL is a wide question for the judgment of the judge . It is plainly not sufficient that the defendant suffers from some ( his and our emphasis ) physical or mental condition ; it must be a mental condition which is such to make it undesirable for him to give evidence . The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so . Many , if not most , difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact - in a ORG trial by the jury . The purpose of section CARDINAL(CARDINAL)(b ) is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence . In this case the evidence was by no means all CARDINAL way , even though the factual background abroad was accepted . The judge had ample material on which to reach the conclusion that he did .

Having reached that conclusion , it remained of course for the jury to decide whether in its judgment it was right to draw any adverse inference against the defendant . No one here can know whether the jury did draw such an inference or not . But what is clear is that the judge left the whole history and all the medical evidence to the jury with punctilious care over CARDINAL pages of summing - up , as he did the possible contra - indications for which the ORG had argued . In other words the question was properly left to the jury . There is not and could not be any criticism of the terms of the summing - up . The question which matters in this appeal , as PERSON has helpfully put it , depends upon whether the judge ’s original ruling was flawed . It was not , we are satisfied , and in those circumstances the appeal against conviction must be dismissed . ”

ORG held that here was no point of law of general public importance to certify . Consequently , the applicant was refused leave to appeal to ORG .

Section CARDINAL(CARDINAL ) DATE ( CARDINAL ) of ORG LAW DATE ( “ the DATE LAW ) provides that :

“ ( CARDINAL ) At the trial of any person ... for an offence , subsections ( CARDINAL ) and ( CARDINAL ) below apply unless—

( a ) the accused ’s guilt is not in issue ; or

( b ) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence ;

but subsection ( CARDINAL ) below does not apply if , at the conclusion of the evidence for the prosecution , his legal representative informs the court that the accused will give evidence or , where he is unrepresented , the court ascertains from him that he will give evidence .

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

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

In NORP ( Director of Public Prosecutions ) v. PERSON [ DATE ] EWHC CARDINAL ( Admin ) the ORG gave guidance as to the test to be applied when considering section CARDINAL(CARDINAL)(b ) of the DATE Act . PERSON ( as he then was ) held that :

“ The court before whom a criminal trial takes place undoubtedly has a wide discretion in deciding on the issue to which subsection ( CARDINAL ) refers ; that is to say , whether the physical or mental condition of the accused makes it undesirable for him to give evidence .

CARDINAL things , however , are to be noted . The first is that there must be an evidential basis for any determination by the court that it is undesirable for the defendant to give evidence ( see R v PERSON ) . A statement or a submission by an advocate does not constitute evidence at all , let alone the kind of evidence on which a court can properly conclude that it is undesirable for a defendant to give evidence .

The second point is that it is not sufficient that the defendant suffers from some physical or mental condition . The mental condition must be such that makes it undesirable for him to give evidence . The fact that he may have some difficulty in giving evidence , for example , is insufficient to justify a conclusion that it is undesirable for the defendant to give evidence . Many , if not most , difficulties that a defendant , or indeed any other witness , may have in giving evidence , are matters to be taken into account by the judge of fact , be it magistrates or a jury , in assessing the reliability of his evidence . It does not justify a comprehensive failure to give evidence . It may go as to the weight of evidence , not as to the decision whether or not it is undesirable for him to give evidence .

Secondly , the court will draw an inference against a defendant in circumstances where , to use the language of the standard direction , ( a ) the prosecution ’s case is so strong that it clearly calls for an answer by him , and ( b ) , that the only sensible explanation for his silence is that he has no answer or none that would bear examination . ”


The applicant is an NORP national , born in DATE and living in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .

On DATE the Innsbruck ORG Bundespolizeidirektion ) convicted the applicant of exceeding the speed limit and sentenced him to a fine of CARDINAL NORP Schillings . The ORG found that the applicant had driven at QUANTITY area . The applicant did not file an objection ( PERSON ) against this penal order ( PERSON ) and paid the fine . This decision became final .

On DATE ORG , in summary administrative proceedings ( PERSON ) , issued a decision ( PERSON ) ordering the withdrawal of the applicant ’s driving licence for a period of DATE , in accordance with section QUANTITY in conjunction with section CARDINAL § CARDINAL of LAW ( Kraftfahrgesetz ) DATE . The ORG found that the applicant had exceeded a speed limit of QUANTITY .

On DATE the applicant , represented by counsel , filed an objection ( PERSON ) to this decision , arguing that he had not appealed against the penal order because he had not known that exceeding the speed limit by QUANTITY / h automatically entailed the withdrawal of his licence .

On DATE the Innsbruck ORG , in ordinary administrative proceedings , ordered the withdrawal of the applicant ’s driving licence for DATE , referring to the reasons given in the summary order of CARDINAL DATE .

On DATE ORG ( ORG ) , upon the applicant ’s appeal , confirmed this decision . The ORG found that , under LAW , a conviction for exceeding the speed limit by QUANTITY / h necessarily entailed the withdrawal of the driving licence for DATE .

On DATE the applicant filed a complaint against this decision with ORG . He argued , inter alia , that the withdrawal of his driving licence amounted to a breach of LAW No . CARDINAL since the

conviction in the administrative criminal proceedings and the decision to withdraw the driving licence both had the same factual basis ( das gleiche ORG ) .

On DATE ORG refused to deal with the complaint and transferred it to ORG . On DATE ORG dismissed the applicant ’s complaint as being unfounded .

According to LAW ( i ) of LAW ( Kraftfahrgesetz ) , a person is not to be regarded as reliable in traffic ( verkehrszuverlässig ) if he or she has exceeded a speed limit within an urban area ( NORP ) by QUANTITY / h . LAW of LAW , inter alia , provides for the withdrawal of the driving licence for DATE if its owner has been finally convicted for having exceeded the speed limit in an urban area by QUANTITY / h , or longer if the traffic offence has been committed in particularly dangerous circumstances or the offender has shown a particular degree of recklessness vis - à - vis other road users .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Respondent State to take measures of a general character (Article 46-2 - Changes of regulations;Legislative amendments);Non-pecuniary damage - award

Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

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

On DATE the applicant gave birth to a healthy baby boy in ORG ( “ the ORG ” ) , a ORG - run hospital .

DATE and DATE , while still in the ORG , the applicant had regular contact with her son .

On DATE the applicant was informed by the doctors that both she and her son would be discharged DATE .

The applicant was with her son until TIME on DATE , when he was taken to a separate room for newborn babies . This was standard procedure and the applicant ’s son had experienced no medical problems up to that point .

On DATE , at TIME , the duty doctor informed the applicant that “ her baby ha[d ] died ” . Upon hearing this , the applicant immediately ran down the corridor towards the room where her son had spent TIME . She was physically restrained by CARDINAL orderlies , however . A nurse even tried to inject her with a sedative , but the applicant successfully resisted the attempt . Ultimately , having no other option and being in a state of shock , the applicant checked out of the ORG . Her relatives were subsequently told that the autopsy of the infant would be performed in GPE , which was why his body could not yet be released to the parents . The applicant and her family remained confused as to why the autopsy would have to be carried out in GPE , as this was clearly a departure from the ORG ’s normal practice .

From DATE , and particularly from DATE , the NORP media started reporting extensively on numerous cases similar to the applicant ’s ( see , for example , http://www.kradjabeba.org , accessed on DATE ) .

On DATE the applicant sent a request to the ORG , seeking all relevant documentation relating to her son ’s death .

On DATE the applicant was informed by the ORG that her son had died on DATE , at TIME , and that his death had occurred from an unknown cause . The ORG maintained that no other information was available because its archives had been flooded in the meantime and many documents had been destroyed .

On DATE , in response to the applicant ’s request , ORG informed her that her son ’s birth had been registered in the municipal records but that his death had not .

On DATE the applicant ’s husband ( the child ’s father ) lodged a criminal complaint with the PERSON municipal public prosecutor ’s office against the medical staff of the ORG , whom the applicant deemed responsible for “ her son ’s abduction ” .

On DATE the ORG municipal public prosecutor ’s office rejected the complaint as unsubstantiated , since “ there was evidence that [ the applicant ’s ] son had died on DATE ” . No further reasoning was offered and there was no indication as to whether any preliminary investigation had been carried out .

In DATE GPE reaffirmed the content of its letter of DATE .

On DATE the ORG provided the applicant with its internal records in support of its letter dated DATE .

On DATE GPE confirmed that the death of the applicant ’s son had never been formally registered .

On DATE GPE provided the applicant with copies of her son ’s birth certificate , in response to her earlier demand , together with the ORG ’s request for registration of the birth .

The body of the applicant ’s son was never released to the applicant or her family . Nor were they ever provided with an autopsy report or informed as to when and where he was allegedly buried .

DATE and DATE the ORG regularly treated the applicant for , inter alia , various depression - related symptoms dating back to DATE and especially DATE .

At a meeting organised by ORG on DATE on the burial of newborn babies who had died in hospital it was decided , inter alia , that the bodies could only be released to the parents if the latter signed a special form designed for this purpose .

NORP In response to a specific request sent to them by the ORG - run funeral company ( ORG PERSON ) on DATE , all GPE - based public health - care institutions also agreed , inter alia , to implement a procedure whereby a special declaration would have to be signed ( a ) by the parents , or other family members , stating that they had been informed of the death by the hospital and that they would personally be making the funeral arrangements , or ( b ) by a legal entity , or its representative , to the effect that it would be making these arrangements because others had refused or were unable to do so . In the absence of such declarations , the ORG - run funeral company would refuse to collect the bodies from the hospitals .

In DATE CARDINAL of parents in the same situation as that of the applicant , namely , whose newborn babies had “ gone missing ” following their alleged deaths in hospital wards , especially in DATE , DATE and DATE , applied to ORG seeking redress .

On DATE ORG formally adopted a report prepared by ORG established for this purpose . The findings of this report concluded , inter alia , that ( a ) there had been serious shortcomings in the applicable legislation at the relevant time and in the procedures before various ORG bodies and health authorities ; ( b ) the situation justified the GPE doubts or concerns as to what had really happened to their children ; ( c ) no criminal redress could now be effective in view of the applicable limitation periods ( see paragraph CARDINAL below ) ; and ( d ) a concerted effort on the part of all government bodies , as well as changes to the relevant legislation , were therefore necessary in order to provide the parents with adequate redress .

On DATE the local media reported that the President of ORG had stated that a parliamentary working group was about to be formed in order to prepare new legislation aimed at providing redress to the parents of the “ missing babies ” .

Following an extensive investigation into the issue , the ORG found , inter alia , that ( a ) at the relevant time , there were no coherent procedures and/or statutory regulations as to what should happen in situations where a newborn baby died in hospital ; ( b ) the prevailing medical opinion was that parents should be spared the mental pain of having to bury their newborn babies , which was why it was quite possible that certain couples were deliberately deprived of the opportunity to do so ; ( c ) any autopsy reports were usually incomplete , inconclusive , and of highly dubious veracity ; ( d ) it could not therefore be ruled out that the babies in question were indeed removed from their families unlawfully ; ( e ) turning to more recent times , the government response DATE had itself been inadequate ; and ( f ) the parents therefore remained entitled to know the truth about the real fate of their children , which could only be arrived at through the enactment of a lex specialis .

NORP In response to the findings and recommendations of ORG of DATE ( see paragraphs CARDINAL - CARDINAL above ) , a working group was set up by ORG on CARDINAL DATE ( see paragraph CARDINAL above ) . Its task was to assess the situation and propose any appropriate changes to the legislation .

On DATE the working group submitted its report to ORG . Following a detailed analysis of the current , already amended , legislation , it concluded that no changes were necessary except as regards the collection and use of medical data , but that a new piece of legislation concerning this issue was already being prepared ( nacrt PERSON o evidencijama u oblasti zdravstva ) . The working group specifically noted , inter alia , that LAW made it impossible to extend the limitation period for criminal prosecution in respect of crimes committed in the past or , indeed , to introduce new , more serious , criminal offences and/or harsher penalties applicable to crimes committed in the past ( see paragraph CARDINAL below ) . The existing Criminal Code already envisaged several criminal offences of relevance to the issue , however , and the new LAW set out a detailed procedure making it impossible for parents to have their newborn babies unlawfully removed from hospital wards ( see paragraphs CARDINAL and CARDINAL below ) .

DATE LAW reads as follows :

“ No one shall be convicted on account of any act which did not constitute a criminal offence under the law or any other regulation based on the law at the time when it was committed . Nor shall a penalty be imposed which was not prescribed for the act at the time .

The penalties shall be determined pursuant to the legislation in force at the time when the act was committed , save where subsequent legislation is more lenient for the perpetrator . Criminal offences and penalties shall be laid down by the law . ”

Article CARDINAL provided , inter alia , that anyone who had unlawfully detained or abducted a minor child from his or her parents was liable to a prison sentence of CARDINAL .

Articles CARDINAL and CARDINAL provided , inter alia , that prosecution of the crime defined in LAW of GPE became time - barred where DATE had elapsed since the commission of the crime .

Under Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL , various forms of child abduction and human trafficking , including for the purposes of adoption , are defined as a crime .

Articles CARDINAL and CARDINAL provide , inter alia , that anyone who has suffered fear , physical pain or , indeed , mental anguish as a consequence of a breach of his or her “ personal rights ” ( prava ličnosti ) shall be entitled , depending on their duration and intensity , to sue for financial compensation in the civil courts and , in addition , to request other forms of redress “ which may be capable ” of affording adequate non - pecuniary satisfaction .

Article CARDINAL § § CARDINAL and CARDINAL provide that a claim based on the above - mentioned provisions may be brought within DATE of the date on which the injured party learnt of the damage in question and identified the person responsible , but that such a claim must in any event be lodged within a maximum of DATE of the event itself .

Article CARDINAL § CARDINAL further provides that if the damage in issue has been caused as a result of the commission of a criminal offence , the civil limitation period may be extended so as to correspond to the applicable criminal statute of limitations .

On DATE ORG ( Rev. CARDINAL/CARDINAL ) held that civil limitation periods concerning various forms of non - pecuniary damage ( see paragraphs DATE above ) would not start running until the situation complained of had come to an end ( kada su pojedini vidovi neimovinske štete dobili oblik konačnog stanja ) .

On DATE ORG ( Rev. CARDINAL/CARDINAL ) further held that “ personal rights ” within the meaning of LAW included , inter alia , the right to respect for family life .

Articles CARDINAL to CARDINAL provide , inter alia , details as regards the determination of the time and cause of death of a newborn baby while still in hospital . Specifically , the hospital will inform the family as soon as possible and provide them with access to the body . An autopsy is carried out and a biological sample stored for any future purposes . The police are informed if no cause of death has been established , and the relevant municipal authorities are informed in all circumstances .


Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Aleš Pejchal;André Potocki;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens;Stanislav Shevchuk

The applicant was born in DATE and is currently serving a prison sentence in GPE .

On DATE CARDINAL people were murdered in the village of GPE in GPE ( oblast ) .

According to the applicant , on DATE he was arrested by the police on suspicion of having committed the murders . As he denied his responsibility for the murders during his questioning at the police station , QUANTITY police officers , including officer PERSON , tortured him with the aim of forcing him to confess to having committed the crimes . In his application to the ORG the applicant initially stated that his ill - treatment had included beatings , the administration of electric shocks , hanging over a horizontal crowbar while handcuffed with his head pointing downwards ( the applicant called this ill - treatment “ lom ” ( лом ) ) and suffocation using a gas mask . In his observations dated DATE , prepared with the assistance of his representative , the applicant stated that the police officers had suffocated him using a gas mask which had not left any visible traces on his body or face and thus during his medical examination on DATE no injuries had been noted ( see paragraph CARDINAL below ) . As a result of his iltreatment , the applicant had lost consciousness several times and had eventually confessed to having committed the crimes . In particular , the applicant signed a confession which he claimed had been written by his wife and the investigator .

Subsequently , the police officers explained to the applicant how the murders had been committed . Under threat of torture the applicant repeated that version of the events during a crime scene reconstruction on DATE which was recorded on video .

NORP Some time later the applicant was questioned by the investigator . During the questioning session the applicant was given alcohol to drink and was forced to sign verbatim records which he did not read .

The applicant was not assisted by a lawyer during the crime scene reconstruction and the questioning session .

NORP After questioning the applicant was taken to GPE police temporary detention centre ( “ the ORG ” ) .

During his detention in the ORG from DATE to DATE the applicant was severely beaten up by unspecified police officers . They also administered electric shocks to him , suffocated him using a gas mask and subjected him to “ lom ” in order to force him to sign a number of other documents prepared by the police . As a result of the ill - treatment , the applicant suffered an injury to his arm which was discovered DATE ( see paragraph CARDINAL below ) .

The applicant argued that the police officers had had no qualms about torturing him , as they had already obtained a medical certificate stating that no injuries had been discovered on the applicant ’s body . The applicant had not been medically examined in the ORG .

The applicant stated that during his detention in the ORG his complaints of ill - treatment and of the use of unlawful methods of investigating the case had been blocked by the investigator and the administration of the ORG , and that he had only been given an opportunity to raise those complaints at trial .

NORP In support of his complaints of torture , the applicant submitted a letter which he claimed had been written by his father on DATE , stating that on DATE his father had visited him in the ORG and had noted that he had suffered multiple injuries to his face and arms and that his arms had not been “ functioning ” . According to that letter , the applicant had informed his father that he had been tortured by the police .

The applicant also submitted a letter which he stated had been written on DATE by a person who had seen him at the pre - trial detention centre in GPE ( “ the GPE ” ) in DATE . In the letter it was stated that the applicant had had an open wound of QUANTITY on his left arm and had said that he had been tortured by the police .

According to the Government , on DATE the applicant confessed in writing to the police that he had murdered CARDINAL people and indicated that the murder weapons were in his rented house . In the course of a search subsequently conducted in that house on DATE , he voluntarily handed over to police officers a knife , an axe and a grey jacket , which he said he had worn during the murders . The axe and the jacket had had blood stains on them and the jacket had smelt of smoke . Subsequently , the applicant expressed the wish to be questioned in the presence of a lawyer . Accordingly , the investigator appointed PERSON to act as the applicant ’s lawyer . During the applicant ’s questioning in the lawyer ’s presence , the applicant confirmed his confession .

NORP Some time later on DATE the applicant underwent a medical examination , which did not reveal any injuries on his body . The ORG submitted that the applicant had not been tortured by the police .

Criminal proceedings against the applicant were instituted on DATE . On the same date the investigator ordered the applicant ’s detention pursuant to LAW .

Mr PERSON , who had been appointed to represent the applicant DATE , continued assisting the applicant until the completion of the investigation . During the trial the applicant was represented by a different lawyer . According to the applicant , the lawyers did not visit him during his detention in the ORG and then , from DATE , in the GPE .

On DATE ORG remanded the applicant in custody in view of the pending criminal investigation against him . The applicant remained in detention for the entire duration of the criminal proceedings against him .

During the court hearing on DATE the applicant confirmed that he had committed the murders .

On an unspecified date in DATE the applicant met with a prosecutor , whom the applicant claimed he told that he had not committed the crimes . The applicant did not complain to the prosecutor of ill - treatment by the police . As the applicant explained during the trial , he had not “ wished ” to complain to the prosecutor .

On several occasions in DATE and DATE police officers and the investigator questioned the applicant ’s wife concerning the case . During questioning she stated that she had been with the applicant at the scene of the crimes on DATE and DATE and had witnessed part of the events , including a fight between the applicant and the victims . During the trial the applicant ’s wife stated that the victims had been murdered by the applicant in her presence because she had had an affair with CARDINAL of the victims , a fact of which the applicant had become aware shortly before the murders .

On DATE the investigator carried out a confrontation between the applicant and his wife . According to the verbatim record of the confrontation , the applicant confirmed his wife ’s statements concerning his responsibility for the murders and also confirmed his confession . According to the applicant , the investigator forced him to sign the verbatim record and his lawyer was not present during the confrontation .

During questioning later on DATE the applicant retracted his confession .

On DATE the applicant was informed of the completion of the investigation . On the same date the prosecutors drew up an indictment , accusing the applicant of murdering CARDINAL people .

On DATE the case was referred to ORG for trial .

On DATE the court held a hearing in which the applicant and his lawyer took part .

During the hearing the applicant denied having committed the murders .

In particular , the applicant submitted that CARDINAL he had stayed in his rented house , which was in the vicinity of where the murders had been committed , as he had had flu . On DATE he had gone to work in GPE . However , he had decided to return home on DATE , having lied to his colleagues that his aunt had died . He had lied “ in order to return home ” . At TIME on DATE , he had been taken from home to the police station together with his wife . At the police station his wife had been questioned separately from him , though he had heard that she had been beaten up and intimidated by police officers . He had been taken to a gym in the police station where QUANTITY police officers , including officer PERSON , whom he knew personally , “ had hanged [ him ] , punched [ him ] in the torso and put a gas mask [ on his face ] ” . Police officers and the investigator had forced him to sign a confession and they had explained to him how the murder had been committed . He had then been taken to the crime scene , where he had repeated the version of the events he had been told by the police officers . The police officers and the investigator had also forced him to sign fabricated verbatim records containing self - incriminating statements . He had complained about the ill - treatment to his lawyer and the investigator , but to no avail . According to the applicant , the investigator dealing with the case had been personally biased as he had had a dispute with the applicant in DATE .

The applicant also argued that his confession had been obtained without a lawyer being present and that the search in his rented house , during which the physical evidence had been found , had also been carried out without a lawyer having been present .

When replying to questions put to him by his lawyer , the applicant stated that he had “ broken ” his arms when he had served in the ORG in DATE .

During hearings on DATE and DATE the applicant and his lawyer asked the court to call a number of witnesses , the applicant ’s colleagues from work , who had been questioned at the pre - trial stage of the proceedings . The applicant argued that they could confirm that he had bought the jacket seized in his rented house on DATE , namely after the date on which the murders had been committed .

The court decided to summon those witnesses and ordered the police to bring them to court . The court also ordered the prosecutors to carry out an inquiry into the applicant ’s allegations of police torture and bias on the part of the investigator .

During a hearing on DATE the court noted that , according to the police , the ORG whereabouts were unknown and that it had been impossible to bring them to the hearing ( the witnesses were absent from their registered places of residence , as they had left to work elsewhere DATE CARDINAL people having gone to GPE , GPE , and CARDINAL to GPE , GPE ) . Hence , the court decided to review the ORG statements obtained at the pre - trial stage instead of hearing them in person . Neither the applicant nor his lawyer objected to this or challenged the trustworthiness of the ORG statements , except that the applicant claimed that , contrary to the statements of CARDINAL of the witnesses , when leaving his place of work on DATE he had taken a jacket and not his work tools with him .

During the hearing on DATE the court questioned the investigator , the lawyer who had represented the applicant during the investigation , and the applicant concerning the applicant ’s complaints of illtreatment by the police and the investigator ’s bias . The investigator denied the alleged ill - treatment or that he had been personally biased towards the applicant ; the lawyer and the applicant confirmed that they had not raised such allegations before the authorities at the pre - trial stage . The lawyer also stated that the applicant had not complained to him of illtreatment .

On DATE the prosecutors issued a decision refusing to institute a criminal investigation into the applicant ’s complaints . The prosecutors found no fault on the part of the police or the investigator . In particular , they noted that the applicant had not complained of police torture during the investigation ; that , according to police officer PERSON , although the applicant had initially denied responsibility for the murders , after having been confronted with witness statements to the contrary the applicant had voluntarily agreed to confess ; and that police officers from the GPE police station had stated that the applicant had not been ill - treated . The prosecutors also noted that , according to an NORP - ray examination which the applicant had undergone earlier on DATE , his lower left wrist had become deformed as a result of a fracture of the left arm not healing properly . According to the prosecutors , the applicant had informed them that he had injured both of his arms during his service in the ORG .

As to the applicant ’s allegation of bias on the part of the investigator , the prosecutors noted that , according to the investigator , the applicant had been his neighbour and the investigator had not had a dispute with the applicant . The prosecutors further noted that no objection had been raised concerning the investigator ’s dealing with the case during the pre - trial proceedings .

During a hearing on DATE the court examined the ORG decision of DATE . Neither the applicant nor his lawyer raised objections against it .

During that hearing the applicant and his lawyer agreed that the examination of evidence could be completed . At that time they did not suggest that it was incomplete because of defence witnesses not having been questioned in court .

On DATE ORG found the applicant guilty of aggravated murder and wilful destruction of property and sentenced him to life imprisonment . In particular , the court found that on DATE the applicant had murdered CARDINAL people with the knife and the axe in the presence of his wife at the house of CARDINAL of the victims . The applicant had committed the murder because he had been jealous of the relationship between CARDINAL of the victims and his wife . On DATE the applicant and his wife had returned to the scene of the crime and the applicant had poured gasoline which he had taken from his rented house over the bodies and had set them on fire .

The applicant ’s conviction was mainly based on the statements of his wife made during the court hearings . The court noted that the inconsistencies in her statements during the investigation and trial could be explained by the fact that she had been concerned for the applicant ’s future because he was the father of their child . The court also noted that the applicant ’s wife had denied having been forced to make those statements and that the applicant ’s submissions to the contrary were baseless . Her version of events had been partly confirmed by several forensic examinations concerning the way in which the victims had been murdered .

The court also relied on the self - incriminating statements obtained from the applicant during the investigation , having noted that the reliability of the verbatim records of the applicant ’s questioning at the pre - trial stage had been confirmed by the investigator and the lawyer who had represented the applicant at that stage , that the material evidence had been collected in accordance with procedure and that the crime scene reconstruction had been carried out in the presence of the applicant ’s lawyer and CARDINAL attesting witnesses . As the applicant had been arrested after the search , it had not been unlawful for him to have not been assisted by a lawyer during the search .

The court rejected as groundless the applicant ’s objections concerning the physical evidence , including the knife , his shoes and jacket DATE which had been stained by blood that , according to experts , could have belonged to the victims . As regards the applicant ’s statement that he had brought the jacket home from work on DATE , the court noted that this had been disproved by the testimony of the applicant ’s wife and also by the statements of the applicant ’s work colleagues , which had been examined during the trial .

As to the applicant ’s complaints of police torture and the investigator ’s bias , the court noted that neither the applicant nor his lawyer had raised such complaints at the pre - trial stage and held that they had been disproved by the results of the ORG inquiry .

The court also noted that during the proceedings the applicant had made inconsistent and contradictory statements concerning the events .

The court further relied on the statements of a number of other witnesses questioned during the trial , including the owner of the applicant ’s rented house who had stated that a gasoline can had been missing from the house and the father of CARDINAL of the victims , who had stated that his late son had had an affair with the applicant ’s wife .

The court rejected as lacking credibility the applicant ’s daughter ’s statements to the effect that the applicant had not left the house DATE , having noted that during the trial she had acknowledged having difficulties recollecting the events of DATE clearly .

On DATE the applicant lodged an appeal in cassation with ORG . Subsequently , the applicant amended it on several occasions . In his appeal the applicant focused his arguments on his disagreement with the factual findings of the first - instance court and stated that his wife had given false statements against him . The applicant also stated that that his colleagues could have confirmed that he had brought the jacket with him from work in GPE on DATE and that his other clothes had also smelt of smoke . According to the applicant , this would have demonstrated that the blood - stained jacket should not have been used as evidence of his guilt . The applicant noted that those witnesses had not been questioned during the trial .

The applicant further complained that during the pre - trial proceedings he had not been allowed to choose his lawyer and that the lawyer appointed to represent him by the investigator had had a “ preconceived ” attitude towards his duties and had not been “ interested in defending ” him . The applicant stated that no lawyer had been present during the search of his rented house on DATE and that his lawyer had not attended a number of unspecified investigative actions .

The applicant also complained that his self - incriminating statements made at the pre - trial stage had been obtained under torture and that he had not signed verbatim records of his questioning because his arms had been injured as a result of the “ lom ” ill - treatment . According to the applicant , the investigator had attached a pen to CARDINAL of his arms with adhesive tape and had manipulated the arm in order to reproduce the applicant ’s signatures on the documents .

On DATE ORG upheld the conviction , having found , inter alia , that the applicant ’s allegations of breaches of criminal procedure were unfounded .

A prosecutor was present at that hearing . According to the applicant , the authorities had failed to escort him to ORG , although he had asked to attend the hearing . The applicant did not provide any documents or further details in that regard .

On DATE the applicant was transferred to ORG to serve the remainder of his sentence .

According to an undated letter from the Governor of ORG , during his detention in the LOC the applicant had not met with his relatives , though he had received parcels and packages from his father .

After the applicant lodged his application with the ORG , he was invited to submit copies of various documents from the domestic case file , including a copy of his appeal in cassation and copies of documents pertinent to his allegations of ill - treatment . According to the applicant , he made several requests for such documents . The requests were refused by ORG as having no legal basis .


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

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

In DATE the applicant lent a certain sum to GPE On DATE he sued his debtor before ORG ( Sąd Rejonowy ) .

On DATE the court issued a payment order granting the applicant 's claim .

In DATE the bailiff of ORG instituted enforcement proceedings against GPE

The enforcement proceedings are pending .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

“ CARDINAL . NORP Parties

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


Violation of Art. 6-1 (length);Remainder inadmissible;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and currently lives in LOC .

On DATE investigating judge L. at ORG ( Landgericht ) heard the applicant , who was named PERSON at that time , on suspicion of fraud ( proceedings CARDINAL Vr CARDINAL/CARDINAL ) . He was questioned in particular about his activities as a member of the board of directors of CARDINAL , a stock company considered to be the centre of a whole network of companies involved in large - scale investment fraud .

On DATE and DATE , respectively , CARDINAL further sets of proceedings ( CARDINAL Vr CARDINAL/CARDINAL and CARDINAL Vr CARDINAL/CARDINAL ) concerning charges of investment fraud were opened against the applicant . CARDINAL set of proceedings concerned investment fraud committed to the detriment of ORG and ORG . The other concerned investment fraud committed to the detriment of investors of ORG and ORG . On DATE the applicant was questioned as a suspect .

On DATE , the applicant changed his name to PERSON through adoption .

On DATE ORG transmitted files concerning investigations on suspicion of investment fraud against the applicant and a number of accomplices , relating partly to the same facts as the investigations opened by the GPE authorities . On DATE a search of the applicant ’s premises was carried out at which a number of documents were seized . On DATE the applicant was questioned as a suspect . It appears that , subsequently , witnesses were questioned by the police at the investigating judge ’s request , and a further search warrant was issued .

Investigating judge PERSON at LOC issued an arrest warrant against the applicant on DATE . On the same date a search warrant for the applicant ’s private and business LOC was issued for the purpose of seizing documents . The proceedings in files CARDINAL Vr CARDINAL/CARDINAL and CARDINAL Vr CARDINAL/CARDINAL were joined and extended to include further suspects . In DATE numerous requests for legal assistance were addressed to the NORP , NORP and NORP authorities .

In DATE proceedings for abuse of authority were opened against investigating judge PERSON was accused of having remained inactive for DATE in several sets of proceedings , including the applicant ’s . On DATE L. declared himself biased on account of the criminal proceedings pending against him . On DATE the President of ORG accepted judge PERSON ’s withdrawal from the applicant ’s case , which was taken over by investigating judge PERSON Judge PERSON resigned subsequently and the proceedings against him were discontinued .

On CARDINAL DATE the applicant was arrested in GPE and extradited to GPE on DATE .

On DATE ORG ordered his pre - trial detention inter alia on suspicion of aggravated fraud . Referring to the results of the investigations in all CARDINAL sets of proceedings ( CARDINAL Vr CARDINAL , CARDINAL Vr DATE and CARDINAL Vr CARDINAL/CARDINAL ) , ORG found that the applicant was suspected of having organised a network of companies involved in large - scale investment fraud . Given that the applicant had been arrested in GPE and having regard to the severity of the sentence to be expected , ORG found that there was a danger of the applicant ’s absconding . Moreover , there was a danger that he might hide relevant documents or try to influence witnesses , in particular employees of his companies .

On DATE the CARDINAL sets of proceedings opened in DATE were joined to the proceedings which had been opened in DATE .

On DATE the applicant ’s counsel complained that the window of his prison cell remained closed at all times . Subsequently , the investigating judge instructed the prison personnel to ensure that the applicant ’s cell was properly aired .

At the close of the preliminary investigation , the file consisted of CARDINAL volumes plus CARDINAL folders and annexes and , in addition , CARDINAL volumes relating to proceedings conducted before NORP courts against the applicant ’s accomplices . The total volume amounted to CARDINAL pages .

On DATE ORG filed the indictment . On DATE , the proceedings concerning facts not covered by the indictment , including those against the applicant which had been opened in DATE , were separated from the main proceedings .

Subsequently , a number of judges of ORG withdrew from the case due to the fact that they had participated in the preliminary investigation .

ORG held the trial on DATE between CARDINAL May and DATE , in the presence of the applicant and his counsel . On DATE ORG convicted the applicant of CARDINAL counts of aggravated fraud and sentenced him to CARDINAL years’ imprisonment . The first count concerned investment fraud committed to the detriment of PERSON and ORG . The second count concerned investment fraud committed to the detriment of CARDINAL investors of ORG and ORG .

In its judgment , running to CARDINAL pages , ORG dealt extensively with the assessment of the evidence before it , namely the statements of numerous witnesses and accomplices , expert opinions and voluminous documentary evidence , including the convictions of the applicant ’s accomplices by NORP courts . It dismissed the applicant ’s defence as not being credible noting that it was full of contradictions and gaps . It found that he had DATE , together with a number of accomplices , enticed CARDINAL of potential investors to place their monies in his various companies , by pretending that they would receive high interest rates .

NORP In fixing the sentence , the court regarded as a mitigating circumstance the long lapse of time since the commission of the offences and the excessive length of the proceedings which it considered to be in violation of LAW .

NORP The applicant appealed on DATE . On DATE ORG granted the applicant ’s request to extend the statutory time - limit for filing an appeal . The applicant supplemented his appeal on DATE .

The decision relating to the extension of the time - limit was overturned by ORG ( Obergericht ) but confirmed on DATE by ORG ( Oberster Gerichtshof ) justified derogating from the statutory time - limit laid down in LAW in order to comply with the requirements of LAW ( b ) of LAW .

DATE and DATE ORG held DATE of appeal hearings at which it repeated the taking of evidence and heard a number of additional witnesses upon the applicant ’s request . It refused the applicant ’s request for a further expert opinion as the relevant facts had already been sufficiently clarified . It also refused to admit a number of questions the applicant wished to put to witness PERSON , who was questioned by a NORP court under letters rogatory , finding that these questions did not concern any relevant facts .

At the close of the hearings , on DATE , ORG dismissed the applicant ’s appeal . On ORG appeal , ORG raised the applicant ’s sentence to DATE imprisonment . It found that there were a number of aggravating circumstances and that the duration of the proceedings was not to be considered in favour of the applicant , as his intention had been to create a most complicated network of domestic and foreign companies to obscure his activities and to make investigations as difficult as possible .

On DATE ORG dismissed the applicant ’s appeal on points of law but granted it as regards the sentence .

ORG found that the appellate court had given detailed and convincing reasons for its findings , which were based on a whole range of evidence . ORG reduced the applicant ’s sentence to DATE . It found no reason to consider the duration of the proceedings a mitigating circumstance . In any case , it held that the proceedings were extremely complex , involving a large number of victims and necessitating extensive taking of evidence abroad . However , ORG had wrongly considered a previous conviction , which was already extinct in the criminal record , as an aggravating circumstance .

The applicant lodged a constitutional complaint against ORG judgment . He claimed in particular that the proceedings were unfair in that the courts had failed take evidence in his favour into account and had failed to give sufficient reasons for their assessment of evidence . He contended in general terms that the evidentiary proceedings were defective in that they violated the presumption of innocence . He also complained about the length of the proceedings and asserted that their excessive duration should have been taken into account when fixing his sentence .

On DATE ORG ) dismissed the applicant ’s complaint . It noted that it was not called upon to examine whether the courts had correctly established the facts and applied the law , but only to review whether they had violated constitutional rights . In the present case , the courts had given detailed and convincing reasons for their assessment of the evidence .

Regarding the length of the proceedings , ORG found that the criminal proceedings at issue started only on DATE when the arrest warrant against the applicant was issued . They ended on CARDINAL DATE when ORG judgment was served on him . Thus , they had lasted DATE and DATE . Given that the proceedings were complex and the facts particularly difficult to elucidate , the duration of the proceedings was not excessive .

The Constitutional Court ’s judgment was served on the applicant ’s counsel on DATE .

Article CARDINAL § CARDINAL of LAW ( Strafprozeß - ordnung ) reads as follows :

“ In the investigative proceedings , everyone believing to have been aggrieved by a delay caused by the examining magistrate or by an order issued with respect to the investigation or in the course thereof shall have the right to obtain a decision of ORG in this regard ; ... ”


The applicants , Mr PERSON and PERSON are NORP nationals who were born in DATE and DATE respectively . They both live in GPE . They were represented before the ORG by Mr PERSON and Mr ORG , lawyers practising in GPE .

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

On DATE the applicants were arrested and placed in police custody by officers from the anti - terrorism branch of ORG , on suspicion of involvement in the activities of an illegal armed organisation , namely the TKP / ML ( PERSON , ORG ) .

Following their arrest , the applicants signed a form whereby their rights as detainees were explained to them . The form included a right to request the assistance of a lawyer . However , as they were arrested on suspicion of having committed a crime falling within the jurisdiction of ORG , it was noted in the form that they could only have access to legal assistance if they were subsequently detained on remand or a court decided to prolong their detention in police custody .

On DATE the applicants were questioned by the police about their activities in the illegal organisation . The first applicant explained that the TKP / ML was an illegal party which supported communism . He stated that he was not a member of this party but he was involved in the activities of its youth branch . He maintained that , in order to help the organisation , he had distributed a newspaper called ORG , tried to convince people to become members of the TKP / ML and sprayed slogans on walls . He further admitted that he had attended the funeral of GPE , who had burnt himself to protest against F - type prisons .

In his police interrogation the second applicant stated that the aim of ORG was to undermine the constitutional order and to replace it with a NORP - Leninist regime . He explained that he had been involved in the formation of the youth branch of this organisation in GPE . He also admitted that , in order to protest against F - type prisons , he had taken part in hunger strikes and painted slogans on walls . He further stated that he had participated and chanted slogans at the funeral of GPE

On DATE the applicants were brought before the public prosecutor , where they repeated their statements taken by the police .

DATE the applicants were brought before the investigating judge at ORG . Before the judge , the first applicant accepted his statements given before the public prosecutor , whereas the second applicant denied his earlier statements . The investigating judge ordered that both applicants be placed in detention on remand .

The applicants and CARDINAL others filed a petition with the court requesting their release pending trial . On DATE the court dismissed their request .

In an indictment dated DATE , the public prosecutor initiated criminal proceedings against the applicants and CARDINAL others before ORG , accusing them , inter alia , of membership of an illegal armed organisation . The prosecution asked the court to sentence the applicants pursuant to LAW . Both applicants were represented before the court by CARDINAL lawyers .

On DATE the applicants denied their statements given in police custody , as they alleged that they had been signed under duress . They accepted their statements given before the investigating judge at the NORP Magistrate ’s Court . CARDINAL of the applicants’ lawyers requested the court to release the applicants pending trial as the only evidence against them was their statements given in police custody , which were taken under duress . The court dismissed the request and ordered the continuation of the applicants’ detention on remand .

On DATE the court heard a witness who stated that he did not know the applicants . The applicants’ lawyers , who were present in the court , did not put any questions to this person .

On DATE , considering the ORG concurring statements given in police custody , their confessions made before the public prosecutor and the judge at the magistrate ’s court , the statements of other accused given during the criminal proceedings , and the confrontation which had taken place between the accused and the witnesses , as well as other relevant evidence such as photographs taken of the incidents , video recordings and the incident reports , ORG found the applicants and CARDINAL others guilty of aiding and abetting an illegal organisation , and sentenced them DATE and CARDINAL months’ imprisonment pursuant to LAW . It acquitted CARDINAL other accused .

On DATE ORG upheld the judgment of ORG , finding that the applicants’ grounds of appeal were unfounded .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

André Potocki;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

On DATE the applicant instituted civil proceedings in the ORG of Kyiv ( hereafter – “ the ORG ” ) against its former employer , ORG ( “ the factory ” ) , seeking his reinstatement and compensation for the related pecuniary and non - pecuniary damages , salary and other ORG recovery , as well as disability allowance ( in respect of a traffic accident which had happened with the applicant shortly before his dismissal and which the factory denied to be work - related ) .

On DATE the court severed the applicant ’s claims for certain payments’ recovery and for disability allowance into separate sets of proceedings .

On DATE ORG rejected the applicant ’s reinstatement claim . On DATE and DATE ORG and ORG respectively upheld that judgment .

NORP In DATE the applicant unsuccessfully sought re - opening of the proceedings on the basis of some newly - discovered circumstances .

On DATE ORG allowed in part the applicant ’s claim for recovery of certain payments , such as salary arrears , compensation for unused leave , dismissal allowance , and sick leave payment . On DATE the judgment was enforced .

In DATE ORG transferred the applicant ’s claim for disability allowance to ORG of Kyiv ( “ the Podilskyy Court ” ) , in line with the instruction of ORG ( “ the ORG ” ) .

The applicant reiterated all his initial claims before ORG .

On DATE the court rejected the claim for disability allowance . As regards the other claims , it decided to leave them without examination , for they had already been adjudicated on DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE ORG quashed the above judgment , because it had been delivered in the applicant ’s absence and without his knowledge , and remitted the case to the first - instance court for fresh examination .

On DATE ORG sent the file to ORG on the latter ’s request . It was required for the examination of the applicant ’s request for re - opening of the reinstatement proceedings ( see paragraph CARDINAL above ) .

On DATE ORG stayed the proceedings until the file would be returned .

On DATE the judge rejected the applicant ’s request for leave to appeal against the aforementioned decision . That ruling was , by mistake , not sent to the applicant , until DATE .

On DATE ORG resumed the proceedings .

On DATE it adjourned the hearing till DATE because of the unspecified misbehaviour of the applicant ’s representative . The court also decided that the applicant ’s presence was obligatory .

On DATE the applicant did not appear at the hearing , and ORG again adjourned it till DATE .

On DATE it dismissed the claim without examination on merits for the applicant ’s repeated failure to attend hearings .

On DATE the applicant brought another claim to ORG against the factory in respect of salary recovery , this time confined to DATE .

On DATE the court terminated the proceedings given that this claim had already been examined by the courts as a part of the applicant ’s another claim . On DATE and CARDINAL DATE ORG and ORG respectively upheld that ruling .

On DATE the applicant supplemented his claim regarding the disability allowance with an additional complaint regarding the alleged conspiracy of the factory ’s administration and trade union again him .

On DATE ORG decided to refer the applicant ’s claim in that part to ORG for examination . The applicant unsuccessfully challenged that referral before higher - level courts .

On DATE the ORG started the proceedings . According to the applicant , this set of his proceedings is pending .