Violation of Art. 6-1 on account of non-communication of lawyer's observations;No violation of Art. 6-1 with regard to the non-communication of the whole case-file;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE and DATE respectively . They are a married couple . They live in GPE , GPE .

The facts of the case , as described mainly in the judgments of the national courts , may be summarised as follows .

In DATE the applicants bought at the price of ORG CARDINAL a property at FAC in GPE . On the land was a large wooden house built in DATE , which had previously served as a hotel and school . In DATE the municipal authorities wished to destroy the building , which by then had been unoccupied for DATE . The applicants ' initial plan was to renovate the building and then to sell it , but later they used the building as a hotel in DATE and rented it out to schoolchildren during DATE .

NORP The renovation costs were initially estimated at ORG CARDINAL , of which approximately ORG CARDINAL was to be financed by mortgages . At the time it was difficult to obtain loans , but in the end the applicants were able to borrow from LOC of ORG , ORG CARDINAL , secured on the applicants ' property in GPE gnr CARDINAL , bnr CARDINAL ) , and ORG CARDINAL , secured on their property ( gnr CARDINAL , bnr CARDINAL and CARDINAL ) in PERSON . ORG subsequently merged with ORG norske ORG and became ORG ) ( hereinafter referred to as “ the Bank ” ) . Eventually the renovation , which was completed in DATE , became more extensive and expensive than expected , in part because of difficulties related to the installation of a fire prevention system . At an unspecified time in DATE or DATE , the applicants stopped paying the mortgages and the interest on them , resulting in an overdraft of ORG CARDINAL million . In addition , they apparently owed ORG CARDINAL to ORG ( Distriktenes Utbyggingsfond – hereinafter “ the ORG ” ) .

As the ORG considered that the applicants had failed to honour their obligations , it sought to have the applicants ' property in GPE and PERSON sold at an auction in order to recover its loans . In DATE the ORG instituted proceedings for this purpose . On DATE the proceedings concerning the property in GPE were discontinued . In the meantime , on DATE the ORG had obtained a decision by ORG ( namsrett ) , the local district court , confirming an auction bid but that decision was later quashed by ORG ( lagmannsrett ) on DATE .

On DATE the ORG again brought proceedings to have the PERSON property sold at auction , and on DATE ORG granted the request .

In a complaint filed with ORG on DATE the applicants requested inter alia that Mr Justice PERSON should stand down on account of his past employment with ORG .

On DATE Mr Justice PERSON confirmed that he had been , for a period from DATE to DATE , an employee of ORG assigned to the ORG 's legal department in GPE . He had not deemed it necessary to inform the parties about this as he did not consider that it had any importance for his eligibility to sit in the case .

On DATE the applicants submitted a complaint to ORG , asking Mr Justice PERSON to stand down under LAW and CARDINAL of ORG Act DATE ( Domstolloven ) on the grounds that he had had close ties with the defendant ORG . On DATE the complaint was returned to the applicants with an explanation that , at the time , no execution proceedings were pending before the court . On DATE Mr Justice PERSON informed the applicants that he could not see that his past employment relationship with the ORG was a reason for him to withdraw from the case .

On DATE ORG granted a request by the applicants to have the auction proceedings suspended , pending a first instance decision in the proceedings mentioned under Section B below .

In DATE the applicants brought an action against the ORG , claiming compensation for breach of contract . According to the applicants , the ORG had undertaken to discharge their mortgage debts secured on the properties at ORG which would have enabled them to earn money from their property during DATE . The ORG brought a counter - action . At the opening of the oral hearing in DATE , Mr Justice PERSON asked the parties whether there were any objections to ORG composition . No objection was made . On DATE ORG ( herredsrett ) , composed of Mr Justice PERSON and CARDINAL lay judges , unanimously found for the ORG , declaring that its mortgage securities were valid . ORG noted that the ORG had agreed on DATE to cancel the ORG CARDINAL mortgage security with respect to the property in GPE . It further observed that on DATE the ORG had requested the cancellation of the ORG CARDINAL,CARDINAL security with respect to the properties at Vågsøy but had withdrawn its request on DATE . In connection with the said request , ORG referred to a letter of CARDINAL DATE from the ORG manager to the ORG . The letter read :

“ The question of to what extent the ORG has an obligation to remove the lien [ on the PERSON property ] has been considered at several levels within the ORG , including our legal department . We have also obtained a statement from an external ORG who has been engaged by [ the applicants ] . No one has found any reason why the ORG should be required to follow the demands of the ORG . ”

In its judgment ORG criticised the Bank for having expressed itself in the way it did , affirming that there was insufficient basis in the contacts between the ORG and the applicants ' lawyer at the time to draw such a conclusion . Despite this , ORG found on the evidence before it that the mortgage securities remained valid .

Before ORG the applicants have submitted that the letter of CARDINAL DATE was kept secret from them “ for DATE until DATE ” ( see at p. CARDINAL of the ' Summary ' attached to their observations of DATE ) , and also that they “ did not discover the proof until they subpoenaed and received the documents during DATE ” ( observations of CARDINAL DATE ) .

On appeal by the applicants , the judgment of ORG was unanimously upheld by ORG on DATE . On DATE ORG of ORG ( Høyesteretts kjæremålsutvalg ) refused the applicants leave to appeal . It does not appear that the applicants challenged the proceedings before ORG on account of Mr Justice PERSON 's participation .

On DATE ORG decided to resume the auction proceedings relating to the applicants ' property in GPE which , as mentioned under LAW above , had been suspended on DATE . This decision was upheld by ORG on DATE and , on DATE , ORG refused the applicants leave to appeal .

On DATE the property in GPE was sold at an auction . The applicants made the highest bid , between ORG CARDINAL.CARDINAL and CARDINAL , but since they were not able to offer security in time , the property went to the next highest bidder , the ORG , for approximately ORG CARDINAL , which was later confirmed on DATE as stated below . The auction was followed by CARDINAL sets of proceedings , CARDINAL concerning Mr Justice PERSON 's refusal to withdraw , the other concerning the ORG 's auction bid .

On DATE , in connection with proceedings relating to the confirmation of the ORG 's auction bid , Mr Justice PERSON of ORG decided to reject a further request made by the applicants that he withdraw from the proceedings . In his decision the judge stated that , from DATE , he had been an employee of ORG assigned to the ORG 's legal department in GPE . During this period he had not been involved with the applicants ' loan agreement and both the agreement and the persons concerned had been unknown to him . Nor had he had any dealings with the former director of the local branch in GPE who had pursued the case against the applicants . After ceasing to work with the ORG , the judge had maintained an ordinary customer relationship with it but had , beyond that , entertained no special links . On entering office as a judge in DATE he had , as a matter of caution , imposed on himself a rule not to deal with cases to which the ORG was a party for DATE . The applicants ' case was brought before ORG after the expiry of the DATE period . It had never been his opinion that his previous employment relationship with the ORG was a circumstance capable of calling into doubt his impartiality . Until the applicants ' complaint of CARDINAL DATE , he had thought that they were of the same view . He saw no grounds for arriving at a different conclusion as regards his ability to sit .

The applicants appealed against this decision to ORG , which upheld it on DATE .

The applicants subsequently sought to appeal against ORG decision but , on DATE , ORG quashed the decision and gave a new decision to the effect that the appeal from the first instance court was to be dismissed by ORG . It observed that , following DATE decision mentioned below , the procedure and the merits of that decision ought to have been challenged in the same appeal .

On DATE , ORG , sitting with a single assistant judge , confirmed the sale to ORG in GPE .

The applicants appealed to ORG , which , after holding a hearing on DATE , upheld the decision by a judgment dated DATE . ORG further rejected the applicants ' contention that the first instance judge had been disqualified .

On DATE ORG refused the applicants leave to appeal .

In DATE the ORG made a fresh application to ORG for the compulsory sale of the applicants ' property in PERSON . The applicants objected and again challenged the first instance judge 's eligibility to adjudicate their case and requested him to withdraw .

By decision of DATE , the judge rejected their request and granted the ORG 's application . The judgment included the following reasons :

“ The plaintiff has sent notice that a claim for enforcement will be made if the claim is not complied with . The said notice is in accordance with the requirements laid down in section CARDINAL of LAW ( tvangsfullbyrdelsesloven ) . The application has been lawfully served on the defendants .

As explained above , the defendants have had objections to the application for forced sale . The court finds it appropriate to deal firstly with the objection concerning ability to sit .

The said objection is linked to the circumstance that the undersigned judge has been employed by [ the ORG ] .

The employment relationship that has been invoked concerns the fact that the undersigned was employed as a lawyer in ORG of [ the ORG ] , GPE , for a period from DATE . During this period I had nothing to do with the loan commitment to PERSON and PERSON . I had no knowledge of either the matter or the persons until the case was submitted to me in my capacity as judge . Nor did I , as an employee of the GPE office , have anything to do with the persons in the ORG who processed the loan commitment to ORG . Since my resignation I have maintained my relationship as a client of [ the ORG ] , ... but have otherwise had no special connection with the ORG or its employees .

Several disputes between the parties deriving from the loan commitment have been brought before the courts . The underlying dispute was heard by the undersigned judge on DATE , and a final and enforceable decision for the ORG was taken by ORG in its judgment of DATE .

The PERSON omitted to call the undersigned 's impartiality into question during the district court 's hearing of the main case , even though they had been explicitly informed of the employment relationship as early as during the preparatory proceedings in DATE . However , their objection was put forward in a written plea dated DATE by their counsel , PERSON , during the hearing of other enforcement proceedings between the same parties , cf . case no . DATE C. On that occasion , the objection was not upheld by the district court , and after a further interlocutory appeal , ORG of ORG decided on DATE that the question of disqualification could not be the subject of an interlocutory appeal because it could serve as a ground of appeal in the event of an appeal proper against the affirmation order .

Since , on the previous occasion , the defendants raised the point that the undersigned withdrew from other cases involving [ the ORG ] , I wish to mention briefly that on entering office as a judge in DATE I chose to impose a precautionary rule upon myself . This consisted in my refraining , for DATE , from hearing cases in which [ the ORG ] was a party . I chose to take DATE on which the case came to court as the starting point for the DATE period , and the application of this rule led to my finding it appropriate to withdraw from a few cases . The case between PERSON and PERSON and the ORG came to court after the expiry of the self - imposed DATE limit .

On the basis of the above , I the undersigned would conclude that my former employment relationship with [ the ORG ] can not be regarded as a special circumstance which might serve to weaken confidence in my impartiality . Until their counsel 's , PERSON PERSON 's , written plea of CARDINAL DATE in case no . CARDINAL - CARDINALC , it was my understanding that Møyfrid and PERSON also took the same view .

Accordingly , the request that the undersigned judge disqualify himself from the case is rejected .

As regards the objection concerning the ground for enforcement , the court refers to the judgment of DATE of ORG . Point CARDINAL of the conclusion of the judgment on the counter - claim reads as follows :

' CARDINAL . NORP The mortgage bond from Møyfrid and PERSON , in the amount of ORG MONEY , judicially registered on DATE and secured on the property gnr . CARDINAL , bnr . CARDINAL and CARDINAL in PERSON , is binding on PERSON and PERSON and may be used as a ground for enforcing recovery of the debt they owe to ORG . '

The judgment is now a final and enforceable decision since ORG has upheld it and ORG of ORG has refused leave to appeal on DATE ....

Accordingly , the court finds that the objections raised by Møyfrid and PERSON concerning the ground for enforcement have been the subject of a final and enforceable decision and that the ground for enforcement may thus serve as the basis of the application for forced sale . As regards the objections indicated by the defendants regarding the ground for enforcement independently of the outcome in ORG , the said objections have not been specified and consequently the court has no cause to deal with them .

The court finds that the conditions for forced sale are fulfilled and grants the application . ...

C o n c l u s i o n :

The request that ORG Judge PERSON disqualify himself ... is rejected .

The application for forced sale of [ the property ] ... in the PERSON municipality is granted .

Enforced payment is to be effected by a forced sale with the help of an assistant , cf . section CARDINAL of LAW .

NORP The decision regarding forced sale is to be judicially registered in respect of the property ... in the PERSON municipality . ”

On DATE the applicants appealed against this decision to ORG , stating inter alia :

“ The appeal is firstly limited to point CARDINAL of the conclusion- the issue of the disqualification of the judge of ORG ( ORG judge ) . However , were the appellants to succeed on this point , this will necessarily result in DATE items in the conclusion also being quashed , since the case will thus have been dealt with by a disqualified judge .

The appeal is grounded on a misapplication of law .

Since it is DATE period and the office is almost completely closed , and because the undersigned counsel will be absent from the office in DATE for work - related reasons , the appeal submitted within the time - limit of DATE will have to be brief . A supplementary written plea will be prepared , and I take the liberty of requesting that the time - limit for submitting such a plea be set for the end of the court vacation , DATE . ”

In the proceedings ORG received from the applicants ' lawyer extensive observations dated DATE and DATE , and from the ORG 's lawyer observations dated DATE . The latter led the applicants ' lawyer to submit further comments on DATE , developing further arguments on the issue of disqualification , including on ORG judge 's awareness of the applicants ' objection to his participation . It further contained the following observations :

“ The legal system does not differentiate between more and less ' serious ' cases . Neither on the basis of the amount or the type of case can one say that a judge who is on the ' borderline ' as regards qualification should be ' passable ' in certain minor cases , but not in major ones .

In this litigation , too , there are various serious questions that may be brought up for consideration . And in any circumstance it is the judge of ORG who ultimately determines whether a given offer is to be confirmed or not .

As regards the property in PERSON , it remains to be resolved whether the mortgage bond concerned is of a subsidiary nature , i.e. whether it is ' only ' security for any uncovered debts from the hotel operations in GPE . In that event , it is necessary to ascertain how much [ the ORG ] will recover in DATE in CARDINAL way or DATE before ascertaining whether there is any residual amount to be covered by selling the property in GPE .

And before that stage is reached , various preliminary assessments and decisions may have to be made in which the judge 's qualification is not a question of secondary importance .

In the second paragraph on page CARDINAL of the reply [ of DATE ] , it is stated that ' the appellants have a debt to [ the ORG ] of over ORG CARDINAL,CARDINAL,CARDINAL ' – in other words , MONEY ! !

I admit that I am new to this litigation and may not have a full overview of absolutely every detail . But amounts of this nature almost knock me flat since they in no way whatsoever resemble the amounts that I have so far been able to note in this litigation .

That is why the adversary party is now being pressed upon to give an account of and to substantiate the manner in which it has computed this claim . Then there is the question whether the adversary party contends that this entire amount has been secured by the mortgage bond , or merely parts of it .

The significance of this question is enormous . When , at some point in the future , ORG in all likelihood sets aside the confirmation of the give - away price for the hotel in GPE ( pursuant to LAW ) , it will be relevant to realise assets in a business - like manner in order to settle accounts with [ the ORG ] .

Whether or not a general settlement is possible will naturally depend on such questions as

a. what is the debt to the [ ORG ] in PERSON that is secured by a mortgage bond ?

b. what is the amount of the total claim against the PERSON family ?

c. can a forced sale be effected at all in the PERSON municipality until a further financial settlement has been reached in PERSON ? ; cf . evidence : CARDINAL . Letter of DATE from [ the ORG ] to the Walstons , affirming that the bond in the present case is merely in the nature of ' formal collateral ' ; regardless of how many subsequent judgments have been pronounced to the effect that the PERSON are not entitled to have the said bond discharged under the prevailing circumstances .

In considering these questions – and several others that may arise during the further hearing of the case – it is naturally not of secondary importance who the judge is . ”

On DATE the ORG 's lawyer filed additional observations , which were not communicated to either the applicants or their lawyer , until they were notified of ORG decision of DATE mentioned below . The CARDINAL DATE document read :

“ I refer to the written plea of DATE from the appellants . The plea gives rise to a need for some clarification , but most of the content has been commented on previously .

On page CARDINAL the appellants contend that the major grounds given for the decisions in this and another case contain direct errors that have allegedly been revealed . It is not correct , however , that Mr Justice PERSON has given any inaccurate information in this case .

The ORG Judge has been aware of the objections that have been raised since DATE , but he was not aware that specific objections relating to disqualification had been raised in those cases where it is so contended . Here I refer to page CARDINAL , penultimate paragraph , of the plea , from which it appears that their counsel , Mr PERSON , did not raise during the main hearing any objections relating to disqualification , despite the fact that the PERSON allegedly instructed him to do so .

It is completely incomprehensible to me that the Walstons now claim that their counsel , PERSON , acted contrary to his instructions in ORG when they themselves were present when it happened and did not protest in any way .

As regards consideration of the disqualification issue in ORG , I abide by what I have said previously about the matter . ORG was not requested , either in the written plea or in court , to deal with the disqualification issue , as it was contended both by PERSON , counsel , in the written plea and by Møyfrid PERSON that , since there would be a completely new trial in ORG , it was not necessary to get a ruling on the merits of this issue . Thus there was no adjudication of any claim that ORG had made a procedural error due to disqualification and that ORG judgment should therefore be quashed and the case referred back to it for fresh examination . It is however correct that Møyfrid PERSON stated that she was still of the view that the judge was disqualified .

As regards the question whether or not the mortgage bond is of a secondary nature , I refer to the security agreement according to which all the mortgaged properties are to secure any and all indebtedness between the parties . The amount of the debt was dealt with in the main case . In this context it is not necessary to document whether or not it exceeds ORG CARDINAL ( the figure was the result of an oversight ) as it is sufficient to point out that after depreciation and the grant from ORG , the outstanding debt was ORG CARDINAL , and that after depreciation no interest or instalment payments have been made with the exception of an insignificant instalment . Given that the bid established for the property in GPE is for ORG CARDINAL CARDINAL CARDINAL , it goes without saying that the question whether the bond is of a secondary nature or not is of no importance .

Evidence : CARDINAL . Ruling by ORG of DATE in case no . CARDINAL - CARDINAL C.

The correct amount of the debt is :

Principal and interest as per CARDINAL DATE ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL

Costs awarded , etc . , with interest ORG

Expenses ORG CARDINAL,CARDINAL.CARDINAL

Sum NOK CARDINAL,CARDINAL,CARDINAL.CARDINAL

I apologise for any inconvenience that my oversight may have caused .

The property in GPE has been sold for an amount that is considerably less than the principal . Thus it is obvious that the question whether or not the mortgage bond is secondary is of no importance in this case . However , the fact is , as noted above in the security agreement , that all the properties are to secure any and all indebtedness between the parties , so it is permissible to realise any or all of the mortgaged property , cf . section CARDINAL - CARDINAL , first paragraph , of the Mortgages and LAW ( panteloven ) .

If it is probable that the amount realised by selling the properties would exceed the amount necessary to cover the mortgagee 's claim , a specific calculation must be made and a proper sequence for such realisation must be drawn up , as provided in section CARDINAL of LAW . LAW of the former ORG made some provision for a similar procedure .

At any rate it is only in cases where there is a danger of excessive coverage that it is necessary to draw up any sequence in connection with realisation . There is no such danger in the present case .

Written plea in DATE copies . ”

On DATE the applicants ' lawyer ceased to represent them . By a letter of CARDINAL DATE , referring to the PERSON case , the applicants informed ORG of this fact and requested it to provide them with “ a copy of all documents in the interlocutory appeal case directly to [ them ] ” . In another letter of DATE they requested “ all the documents concerning ” the PERSON case .

In a letter of CARDINAL DATE to ORG , they renewed their request for the production of documents in both cases , invoking the approaching time - limit for making supplementary submissions in the PERSON case . They added that their former lawyer had refused to provide them with the documents .

On DATE ORG upheld ORG decision of DATE . It had particular regard to the fact that , while employed by the ORG , Mr Justice PERSON had not been involved with the loan agreement concerned , and that a considerable time had elapsed between the date of his leaving the Bank ( DATE ) and the date when the ORG requested the compulsory sale of the applicants ' property ( DATE ) . Moreover , the ORG was a large company with branches all over the country , whose employees DATE might expect – would have a less personal relationship to their employer than would normally be the case with smaller companies . While Mr PERSON was assigned to the GPE branch , the loan agreement had been arranged at the local branch in GPE . Furthermore , the applicants had not disputed his ability to sit in DATE when he dealt with the dispute regarding the underlying circumstances .

On DATE , DATE after its above - mentioned decision , ORG transmitted to the applicants a copy of the case - file . On DATE they complained to ORG about the procedural error , stating the following :

“ We refer to the letter dated DATE in which we were finally sent the documents in the interlocutory appeal case . This in fact occurred DATE after the ruling on the interlocutory appeal was given .

This is a serious procedural error on the part of ORG for which we hold the judges responsible .

The reason why we asked to be sent the documents in the case was because Mr. PERSON is no longer our lawyer .

We did not have an overview of the documents that had been submitted to the court and , in order not to suffer legal prejudice , it was imperative for us to obtain the documents from the court . See letters of DATE and DATE .

As I now look through the documents that we received DATE , I see that several things are missing and we are seeing a written plea by Mr. PERSON dated DATE for the first time . ”

Subsequent to further exchanges , on DATE ORG sent to the applicants copies of their lawyer 's writ of appeal and supporting arguments dated DATE . As regards the ORG 's lawyer 's submissions of DATE , ORG explained that , since the submissions did not contain any information of importance to the case , they had not been communicated until notification of ORG decision . As their lawyer at that time had ceased to represent them , it had not been sent to him .

On DATE the applicants appealed to ORG , requesting that ORG decision be quashed and that the case be referred back to it for a fresh examination . On this occasion the applicants requested to be given until DATE to supplement their appeal , which they did on that date , setting out their arguments , notably on alleged procedural errors on account of Mr Justice PERSON 's participation and ORG omission to communicate case - documents , and attaching an analysis of procedural errors allegedly committed by ORG .

The applicants complained that , in the proceedings before ORG , the latter had given a decision on DATE without having communicated the case - documents to them , as requested on DATE and again on DATE . The applicants were then not aware of the observations of DATE submitted by the ORG 's lawyer , on which they had comments of importance for the outcome of the case . The observations had contained an admission to the effect that ORG judge had since DATE been aware of the applicants ' objections to his dealing with their case . Moreover , whilst the ORG 's observations of DATE had stated that the applicants ' debts had exceeded ORG CARDINAL , those of DATE had indicated that they amounted to barely ORG MONEY .

On DATE the applicants submitted additional observations commenting on a writ filed by the ORG on DATE and expressing their wish that the issue of the judge 's ability to sit be given careful examination . Moreover , they informed ORG that because of the shortage of time they had not been able to finalise the attachments to their analysis of DATE , and that these would be sent by ordinary mail on DATE .

On DATE ORG rejected the applicants ' appeal .

As regards the applicants ' complaint about ORG omission to communicate the observations of DATE , the ORG reiterated that the ORG had in a previous case a legally enforceable judgment according to which the mortgage securities invoked were binding on the applicants and could be used as a ground for compulsory sale of the properties for recovery of debts that they had vis - à - vis the ORG . Moreover , the appeal before ORG had been limited to the question of the first instance judge 's impartiality . Thus , the ORG found , the observations of DATE contained no information of any importance for the decision to be taken by ORG . It concluded that ORG omission to communicate the observations did not constitute an error of procedure for the purposes of LAW , second paragraph of LAW ( tvistemålsloven ) . Nevertheless , the ORG added , a party 's pleadings should as a rule be communicated to the other party or the latter 's representative .

As regards ORG omission to respond to the applicants ' request for a copy of all the appeal documents , the ORG recalled that , under LAW , the parties may request copies of those documents which concern the case . It observed that in the circumstances at hand , where the case had long since been ready for adjudication by ORG , the latter was not wrong in deciding the case before transmitting a copy of the bulky case - file to the applicants . In any event , this could not constitute an error of procedure which affected ORG decision .

According to the applicants , subsequent to the above decision , ORG returned to them their observations of DATE , with the enclosures , stating that a decision had already been taken in the case .

Article CARDINAL of the Code of Civil Procedure reads :

“ The parties are entitled to examine at the office of the court , court TIME and documents relating to the suit , and may demand copies of them . ”

Article CARDINAL , second paragraph , provides :

“ In the event that new factual information , which is not obviously without significance , has been invoked , the court shall inform the adversary party thereof . Should it find reason to do so , the court may submit the matter for comment to the court which has taken the decision under challenge . ”


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

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

On DATE ORG of GPE ( “ the ORG ” ) fined the applicant LAW for having exercised commercial activity without a licence and ordered the confiscation of QUANTITY of the waste metal collected by him .

On DATE the same court , following the protest of the Chrornomorsk District Prosecutor of GPE , quashed this decision and terminated the administrative proceedings against the applicant . The case file was transferred to ORG of GPE for a decision on account of the applicant ’s criminal liability for tax evasion .

On DATE the Head of ORG refused to institute criminal proceedings against the applicant .

On DATE ORG examined the same case file again and fined the applicant UAH CARDINAL for having exercised commercial activity without a licence and ordered the confiscation of QUANTITY of the waste metal collected by him . The applicant lodged an appeal with ORG of GPE .

On DATE ORG , noting that proceedings were pending before ORG of GPE , ordered the suspension of the enforcement proceedings in respect of the decision of DATE . However , ORG sold the waste metal .

On DATE ORG of GPE quashed the decision of DATE and terminated the proceedings on the ground that the same facts had already been examined by the court .

On DATE ORG ordered the restitution of the QUANTITY of the waste metal to the applicant .

On DATE the same court , following the applicant ’s request , modified the ruling of DATE and ordered ORG to pay the applicant UAH CARDINAL,CARDINAL in compensation for the waste metal sold by ORG .

The applicant challenged the Bailiff ’s inactivity in enforcing the ruling of DATE on numerous occasions before the domestic authorities .

In DATE the applicant lodged his claim for compensation for damage caused by the administrative proceedings against him and the confiscation of his property with ORG . On DATE ORG ordered ORG to pay the applicant ORG CARDINAL,CARDINAL . On DATE ORG of the LOC modified this decision and ordered the same amount to be paid to the applicant from ORG .

The ruling of DATE , as amended by the ruling of CARDINAL DATE , and the judgment of DATE were enforced in DATE .

The relevant domestic law is summarised in the judgments of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . GPE , § § CARDINAL , DATE .


András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

A list of the applicants is set out in the appendix . They were represented before the ORG by PERSON , a lawyer practising in GPE .

The applicants are all active members of various law - enforcement agencies . Under the rules which were in force when the applicants took up duties , they were entitled to retire after DATE of service , irrespective of their age , or at DATE than the generally valid age - limit for old - age pension . These advantages were available in the form of a ‘ service pension’ ( szolgálati nyugdíj ) .

As of DATE , the service pension as such was abolished by a legislative amendment ( Act no . ORG of DATE ) . In its stead , a so - called service allowance ( szolgálati járandóság ) was instituted , with different amounts and conditions . In particular , the DATE age benefit is no longer applicable in cases like that of the applicants , and moreover , no special pension or allowance is available merely as a consequence of a CARDINAL-year long service . Furthermore , a CARDINAL - time benefit of CARDINAL months’ salary due on retirement was also removed . In other words , under the new scheme the applicants’ pension entitlement has become largely identical to that of the general population , despite the expectations they had when entering the service .


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

NORP The applicants’ names and other details are indicated in the appended table . All the applicants were members of the NORP military forces and took part in peace - keeping operations in former GPE and/or in other military missions outside GPE .

In DATE they sued the military unit no . CARDINAL before ORG for payment of outstanding DATE allowance allegedly due to them on account of their military missions abroad . The court granted the ORG claims ( see dates of the judgments and sums awarded in the appended table ) . The judgments were not appealed against and became binding and enforceable on the dates indicated in the appended table .

The judgments of DATE were not enforced . On DATE the ORG of ORG decided , upon its President ’s request for supervisory review , to quash these judgments in view of an erroneous application of material law and sent the cases for a new consideration to ORG ( judgments ORG . CARDINAL , DATE and DATE ) . The applicants did not attend the hearing . It does not appear from the case - file that the applicants or their counsel had been informed of the supervisory - review proceedings or that they were able to take part in these proceedings .

On DATE and DATE ORG reconsidered the cases and dismissed the ORG claims . These judgments were upheld on appeal by ORG on DATE and thus became final .

The judgments of CARDINAL and DATE in favour of PERSON were enforced on DATE and DATE respectively . On DATE ORG partially granted this applicant ’s claim for compensation of the inflation losses due to the delay in the execution of the judgment of DATE . The court awarded compensation for the inflation losses occurred DATE and DATE , i.e. a sum of CARDINAL CARDINAL RUB instead of CARDINAL,CARDINAL.CARDINAL RUB claimed by the applicant for the total delay in enforcement .

The relevant domestic law as in force in the material time is summed up in the ORG ’s judgment in the case of ORG ( see ORG v. GPE , no . CARDINAL/CARDINAL , § DATE , ORG CARDINALIX ) .

In DATE the judgments delivered against the public authorities were executed in accordance with a special procedure established , inter alia , by the ORG ’s Decree No . CARDINAL of DATE and , subsequently , by Decree No . CARDINAL of DATE , entrusting execution to ORG ( see further details in PERSON and Others v. GPE , nos . MONEY , PERSON , CARDINAL and CARDINAL , § § CARDINAL - CARDINAL , DATE ) .


Violation of Art. 8;Partly inadmissible;Not necessary to examine Art. 34;Non-pecuniary damage - finding of violation sufficient

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

In DATE the prosecution service filed with the Opole ORG ( Sąd Rejonowy ) a bill of indictment in which it charged the applicant with making unlawful threats . In the course of the court proceedings the applicant was represented by a court - appointed lawyer . On DATE the trial court held a hearing at which the applicant and his courtappointed lawyer were present . During the hearing , the court scheduled the next hearing for DATE about which the applicant was informed .

On DATE a hearing took place before the trial court . The applicant did not attend the hearing but his counsel was present . The applicant failed to give any reasons for his absence and the trial court finished the proceedings and decided in the presence of the counsel that the judgment would be delivered on DATE .

On DATE the ORG delivered a judgment in which it convicted the applicant as charged and sentenced him to a prison term of DATE and DATE . Neither the applicant nor his counsel was present at the delivery of the judgment .

The applicant did not appeal against the judgment of DATE and did not apply for a copy of the reasons of that judgment .

Subsequently , the applicant lodged an application for leave to apply for a reasoned judgment out of time . In his application , he argued that his absence at the hearing held on DATE was justified because he had been recently released from the detention and on DATE he had been assaulted . The applicant also complained that he had not been informed about the date of the delivery of the judgment . On DATE the ORG examined the application and dismissed it . The court , in a reasoned decision , established that the applicant had known about the hearing scheduled for DATE . He failed to attend it without providing any justification for his absence . Therefore , the trial court was entitled to terminate the proceedings in his absence on the basis of LAW . The court further examined the reasons for the absence submitted by the applicant . It established that in fact he had been released on DATE prior to the hearing . Moreover , while it was true that the applicant had been assaulted , nevertheless , that had happened DATE following the hearing and the injuries sustained by the applicant , according to a hospital certificate , were not serious and the applicant was not admitted to hospital . With regard to the complaint that he was not informed about the date of the delivery of the judgment , the court found that the applicant had not been diligent since he had not contacted his lawyer . The applicant was aware of the scheduled hearing and knew the address and the name of his courtappointed lawyer .

The applicant appealed against this decision . On DATE the ORG ( PERSON ) examined the reasons given by ORG and upheld the decision .

On DATE the applicant started serving the prison sentence ordered by the judgment of DATE .

On DATE the ORG received the applicant ’s first letter dated CARDINAL DATE . The letter was sent while the applicant was serving a prison sentence in ORG . The envelope in which the letter was delivered bears the following stamps : “ ORG in GPE , censored on CARDINAL ” ( PERSON w PERSON , cenzurowano dnia CARDINAL ) and “ CARDINAL , DATE , register number CARDINAL ” ( CARDINAL , DATE , numer ewid . CARDINAL/CARDINAL ) .

Article CARDINAL of the Code of the Criminal Procedure ( Kodeks Postępowania Karnego ) relates to the absence of the accused at a hearing . It reads , in so far as relevant , as follows :

“ § CARDINAL . If the accused , who has already given explanations , leaves the courtroom without the permission of the presiding judge , the court may complete the hearing in his absence , and the judgment thus rendered shall not be regarded as issued by default ; the court shall order the accused to be brought to the courtroom by force , if it finds his presence indispensable .

§ CARDINAL . NORP This provision shall apply accordingly when the accused , who has already given his explanations , and having been notified of the date of the adjourned or interrupted hearing , has not come to that hearing or justified his non - appearance . ”

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) of CARDINAL DATE .

LAW , which is contained in LAW entitled “ Rights and duties of convicted persons ” , provides as follows :

“ Convicted persons , their counsel , representatives and the relevant non - governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by GPE concerning the protection of human rights . In those cases , correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored . ”

Provisions relating to the execution of detention on remand ( Articles CARDINAL ) are contained in LAW entitled “ Detention on remand ” .

Article CARDINAL § CARDINAL reads , in so far as relevant :

“ ... a detainee ’s correspondence shall be censored by [ the authority at whose disposal he remains ] , unless the authority decides otherwise . ”

Pursuant to LAW ,

“ Unless exceptions are provided for in the present LAW , a detainee shall enjoy at least the same statutory rights as a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison . No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings , to maintain order and security in a remand centre and to prevent demoralisation of detainees . ”

Article CARDINAL § CARDINAL , which is contained in Chapter XXI entitled “ Definitions ” , provides :

“ The prohibition of censorship shall also mean the prohibition of acquainting oneself with the contents of a letter . ”


Remainder inadmissible;No violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

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

On DATE the applicant was arrested and charged with rape . He was released DATE on an undertaking not to leave town . On an unspecified date the applicant moved to GPE . He was subsequently apprehended on a train going from GPE to GPE and remanded in custody pending investigation and trial on DATE .

The Insarskiy District Court of the Republic of GPE opened the trial against the applicant on DATE and appointed lay assessors P. and PERSON as members of the bench considering the criminal charge against the applicant on DATE . On DATE the applicant unsuccessfully challenged the composition of the bench , alleging that the term of office of the lay assessors had expired .

The applicant was found guilty as charged and sentenced to DATE imprisonment . ORG delivered the verdict on DATE . On DATE ORG upheld it on appeal .

On DATE ORG granted a request by the applicant for supervisory review . The court noted that the second - instance court had failed to address all the issues raised by the applicant in his points of appeal . The Presidium of ORG quashed the appeal judgment of DATE and remitted the case for fresh consideration on CARDINAL DATE .

ORG suspended consideration of the applicant 's appeal and assigned the President of ORG to verify the lawfulness of the lay assessors ' participation in the applicant 's trial on DATE . On DATE ORG considered the applicant 's appeal and upheld his conviction . The court noted that the trial had been conducted in accordance with the rules of criminal procedure .

Following the applicant 's request for supervisory review , the Presidium of ORG quashed the judgment of DATE and remitted the case for fresh consideration on DATE .

On DATE ORG quashed the judgment of DATE on appeal and remitted the matter for fresh consideration to the ORG of GPE .

ORG found the applicant guilty as charged and sentenced him to DATE imprisonment on DATE . On DATE ORG upheld the judgment of DATE on appeal .

On DATE the Presidium of ORG quashed the appeal judgment of DATE by way of supervisory review and remitted the case for fresh consideration . The court noted that the appellate court had failed to assess the admissibility of the victim 's testimonies .

A new consideration of the applicant 's appeal by ORG on DATE resulted in the quashing of the judgment of DATE . The matter was remitted to the lower court for fresh consideration .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE imprisonment . The court based its findings on the witnesses ' testimonies , including those provided by the victim , who testified in court , and on forensic evidence . The court further ordered the applicant to pay for the services provided by a legal - aid lawyer in the amount of MONEY . On DATE ORG upheld the applicant 's conviction on appeal , but reduced his sentence to DATE imprisonment .

From DATE the applicant was detained in a correctional colony . Some of his belongings were allegedly stolen during his transport to the colony . On CARDINAL DATE the administration of the colony refused to investigate the applicant 's allegations .

On DATE the applicant had an altercation with another inmate . According to the applicant , he was beaten up by the guards for refusing to explain in writing the reasons for the altercation .

According to the applicant , on DATE the administration of the colony allegedly refused to allow the applicant to meet his father , who represented him during the trial .

NORP In DATE the applicant was transported to remand prison no . IZ-CARDINAL/CARDINAL in GPE .

Following the applicant 's failure to comply with internal regulations , on DATE he was placed in a disciplinary cell for DATE .

On DATE the warden , his deputy and CARDINAL guards inspected the prison . They noticed an inter - cell communications device in the applicant 's cell . The applicant tried to prevent them from entering the cell . He pushed them and swore at them . PERSON , one of the guards , hit the applicant CARDINAL times with a rubber truncheon . The applicant gave up his resistance . He was then examined by a paramedic who noted CARDINAL bruises on his shoulders , buttocks and left forearm which did not require medical treatment . The device was removed from the applicant 's cell and destroyed .

NORP In response to the complaint lodged by the applicant 's father on DATE , on CARDINAL DATE the prosecutor questioned the applicant in respect of the incident of DATE . The applicant was also examined by a paramedic who noted a yellowish bruise on his left shoulder .

On DATE the prosecutor refused to institute criminal proceedings against the alleged perpetrators . He stated that the guard had used the rubber truncheon lawfully . The prosecutor based his findings on testimonies provided by the applicant and the guards . He studied the reports prepared by the guards to account for the use of force against the applicant and the medical documentation prepared by the paramedics who had examined the applicant . In particular , his findings were as follows :

“ On DATE M. , the warden of the remand prison ... , PERSON , the deputy warden of the remand prison ... , and [ officers ] PERSON . and PERSON inspected the disciplinary cells . In cell no . CARDINAL , where [ the applicant ] was held , they saw an inter - cell communications device . The [ officers ] tried to enter the cell to remove the ... device and to search the [ applicant ] . However , the latter resisted . He pushed them out of the cell and grabbed PERSON by the arms so that the latter could not search him . In addition to those unlawful actions , [ the applicant ] swore and ignored the officers ' requests to stop his unlawful behaviour . Accordingly PERSON had to use force against [ the applicant ] : he hit [ the applicant ] CARDINAL times with the rubber truncheon . He administered the blows to the back and the buttocks . He did not hit [ the applicant ] on the head ...

The inquiry did not uncover any evidence to confirm [ the applicant 's allegations ] that he had been beaten up by PERSON , the warden of the remand prison , and the other officers .

The use of the rubber truncheon against the applicant has been justified , in accordance with section CARDINAL of LAW and Defendants charged with ORG . ”

The prosecutor 's decision was upheld by ORG of GPE on DATE . The court found that the applicant had resisted the guards and that the latter had had to use force to restrain him . CARDINAL officers had been involved , the use of the rubber truncheon against him was excessive . On DATE ORG upheld the decision of DATE on appeal .

On DATE the remand prison administration force - fed the applicant . The complaint lodged by the applicant 's father with the prosecutor 's office on DATE was left without response .

On DATE the applicant was allegedly handcuffed with his arms behind his back and hung from the railings by the guards . The applicant 's feet did not touch the floor . He was kept in that position for TIME . The complaint lodged by the applicant 's father was dismissed by the prosecutor 's office on DATE . According to the prosecutor , the applicant had assaulted a guard and had to be restrained with handcuffs . At no point had the guards hung him from the railing .

It appears that in DATE the prosecutor 's office carried out an additional investigation into the incident of CARDINAL DATE and on DATE the applicant 's complaint was dismissed anew . According to the applicant , the final decision on the matter was taken by ORG of GPE on DATE .

The applicant remained in custody pending the third trial . On DATE the ORG of GPE extended the applicant 's detention for DATE . The court noted that the applicant was charged with a serious crime and had tried to abscond during the investigation of the case . On DATE ORG upheld the decision on appeal .

On DATE and DATE the applicant was transported to ORG for appeal hearings . He alleged that on DATE he could not use his dry food ration because of the lack of facilities to boil water in the courthouse . On DATE ORG informed the applicant 's father that the courthouse was indeed not equipped with a kettle and forwarded a copy of his complaint to the department responsible for the maintenance of courthouses .

After having served a prison sentence , the applicant was released on DATE .

Physical force in respect of detainees may be employed in order to put an end to their misconduct or resistance to legitimate orders of detention officers if non - forceful alternatives are not feasible ( section CARDINAL ) .

Rubber truncheons may be used in respect of detainees in the following circumstances ( section CARDINAL ) :

( CARDINAL ) to put an end to an assault by the detainee on detention officers ;

( CARDINAL ) to suppress mass uprisings or collective breaches of public order ;

( CARDINAL ) to put an end to misconduct by the detainee in resisting the legitimate orders of detention officers ;

( CARDINAL ) to free hostages ;

( CARDINAL ) to put an end to the detainee 's attempt to escape ; or

( CARDINAL ) to put an end to the detainee 's attempt to cause harm to others .


Violations of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

The applicant was born in GPE in DATE and is currently serving a sentence of life imprisonment .

On DATE CARDINAL people were killed . K was an eye - witness to the incident .

On DATE the prosecutor decided to proceed with the identification of the perpetrator and invited K to participate . K was given CARDINAL photographs and he pointed to the applicant as the perpetrator , after having given a physical description of him . The applicant ’s lawyer was not present .

On DATE the police unsuccessfully searched the applicant ’s home . His whereabouts were unknown .

On DATE the prosecutor charged the applicant with the offences of murder in aggravating circumstances and unlawful possession of firearms . The notification of the prosecutor ’s charges was acknowledged by the signature of a lawyer officially - appointed to represent the applicant .

On DATE ORG ( “ the ORG ” ) ordered the applicant ’s arrest . However , the order could not be enforced as the applicant could not be located .

On DATE the police unsuccessfully conducted a further search of the applicant ’s home . His whereabouts remained unknown .

On DATE the applicant was declared a fugitive from justice by ORG in accordance with LAW ( “ ORG ” ) .

On DATE the prosecutor decided to commit the applicant for trial . The applicant ’s officially - appointed lawyer was duly informed .

On DATE the prosecutor submitted his final conclusions in which he requested that the applicant be sentenced to life imprisonment . On DATE the applicant ’s officially appointed lawyer submitted his final conclusions in which he challenged the lawfulness of the identification procedure which had been conducted in the absence of the applicant ’s lawyer . He requested that the sentence of imprisonment be CARDINAL years having regard to the fact that the applicant was not a recidivist and that he was young and had a low level of education .

On DATE ORG found the applicant guilty as charged and sentenced him to life imprisonment . It would appear that the applicant was living in GPE at the material time .

On DATE , in accordance with LAW of the ORG , the applicant ’s father authorised a lawyer to represent the applicant and lodge all necessary appeals .

On DATE the lawyer lodged an appeal against the applicant ’s conviction . The appeal , which also bore the applicant ’s signature , was based on points of fact and law .

On DATE , following proceedings in absentia , ORG ( “ the Court of Appeal ” ) upheld ORG decision . It found that the applicant had been declared a fugitive after unsuccessful attempts to trace his whereabouts and that the first - instance court ’s notifications had been addressed to his officially - appointed lawyer in accordance with the law .

On DATE the applicant appealed , through his familyappointed lawyer , to ORG . He complained inter alia that his absence during the lower courts’ proceedings had adversely affected him and that he had not been notified of the proceedings in accordance with the law . The applicant stated that he did not deny the charges against him were unique and required a different view of the merits of the case . The appeal bore the applicant ’s signature and that of the lawyer appointed by his family .

On DATE ORG rejected the applicant ’s appeal . It held that ORG had properly notified the applicant at his home address . Moreover , his brothers and mother were summoned as witnesses at one of the first - instance court ’s hearings . ORG considered that the non - participation of the applicant in the trial reflected his own choice , as evidenced in his appeals , rather than of a lack of opportunity afforded by the lower courts to appear at his trial and to contest the charges . ORG dismissed , as unsubstantiated , the applicant ’s argument that the sentence of imprisonment would have been less severe had he attended the proceedings .

Still living in GPE , the applicant was informed on DATE of the outcome of the above proceedings , namely that he had been sentenced to life imprisonment in GPE . On DATE he surrendered to the NORP police in order to seek justice in respect of his conviction and allegedly unfair trial in absentia .

On DATE the applicant authorised a lawyer to introduce a constitutional appeal .

On DATE the applicant lodged a constitutional appeal . He stated that he had been tried in absentia and his interests had not been properly defended before the first - instance court . The officially appointed lawyer had been appointed by the prosecutor instead by the court . The applicant had never been notified of any documents concerning his case . Moreover , the applicant alleged that he had been declared a fugitive on the basis of inconclusive evidence . The fact that he surrendered after the completion of his trial was a further sign that he had not been properly notified of the proceedings . He also contended that his signature on the appeals to ORG and ORG had been forged .

On DATE ORG , having noted that the applicant ’s appeal had been submitted in DATE , declared the complaint inadmissible as having been filed out of time .

In a letter of CARDINAL DATE the applicant ’s lawyer informed the ORG inter alia that , as the time - limit had expired during DATE ( on a DATE ) , whereas all domestic procedural rules provided for an automatic extension of the legal time - limit to the following DATE , he had posted his constitutional appeal on the following DATE , namely on DATE .

On DATE ORG replied that the applicant had been informed of the grounds for its decision of CARDINAL February CARDINAL . His complaint had been filed out of time on the basis of the postmark on the envelope in which the complaint had been sent to ORG .

The relevant provisions of the LAW read as follows : .

DATE

“ During criminal proceedings , everyone has the right :

a. to be notified immediately and in detail of the charges brought against him , of his rights , and to have the possibility to notify his family or relatives ;

b. to have sufficient time and facilities to prepare his defence ;

c. to have the assistance of a translator free of charge , when he does not speak or understand the NORP language ;

ç . to present his own case or defend himself through the assistance of counsel of his own choosing ; to communicate freely and privately with him , as well as to be provided free legal counsel when he does not have sufficient means ;

d. to examine witnesses who are present and to request the appearance of witnesses , experts and other persons who can clarify the facts ” .

Article CARDINAL

“ CARDINAL . No one shall be obliged to testify against himself or his family or to confess his guilt .

No one shall be declared guilty on the basis of evidence collected unlawfully ” .

Article CARDINAL

“ CARDINAL . Everyone has the right to be heard before being judged .

A person who is seeking to evade justice may not avail himself of this right ” .

Article CARDINAL § CARDINAL

“ In the protection of his constitutional and legal rights , freedoms and interests , or in the event of criminal charges brought against him , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law ” .

Article CARDINAL

“ The Constitutional Court shall decide : ...

( f ) in a ruling that shall be final , complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted ” .

The relevant provisions of LAW read as follows :

Section DATE The scope

The Constitutional Court shall take into account the legal provisions that regulate other procedures in so far as issues relating to procedures not governed by this LAW are concerned , having regard to the legal nature of the case at issue ” .

Section CARDINAL

“ CARDINAL . The lodging of an appeal before the Constitutional Court shall be subject to the time - limits set out in this law .

An individual ’s appeal for a violation of his constitutional rights may be submitted DATE from the occurrence of such violation . If the law provides a remedy , the individual may lodge an appeal with ORG after having exhausted all legal remedies for the protection of his rights . In such cases , the time - limit for the lodging of the appeal is DATE from the notification of the last instance body ’s decision ” .

Section CARDINAL

“ CARDINAL . A preliminary review of appeals shall be conducted by a panel of CARDINAL ORG judges , including the judge rapporteur .

If an appeal , despite being within the jurisdiction of ORG and submitted by a person who has locus standi to lodge it , is not complete , the panel shall send it back to the appellant for completion , indicating the reasons for doing so and a deadline for its completion . When the appeal is completed , it shall be resubmitted for preliminary review by the panel . An incomplete appeal may not be subject to review .

If an appeal is lodged by an appellant claimant who has locus standi and the case falls within the jurisdiction of ORG , the panel shall review the case in plenary session , whereas if it is lodged by a person without locus standi or if the case is not within the jurisdiction of ORG , the panel shall not review the case in plenary session . In all cases , if one of the judges of the panel has a different opinion , the appeal shall be sent for preliminary review by the full court , which shall decide by a majority of votes whether the case shall be heard in plenary session .

In all the aforementioned cases the panel or the full court shall not review the merits of the case ” .

In its decision no . CARDINAL of CARDINAL DATE ( no . CARDINAL ) ORG , having regard to the provisions of LAW and the fact that LAW did not provide for the procedure to be followed in the event that an appellant renounced his right to pursue the appeal , decided to dismiss the case in accordance with LAW .

In its decision no . CARDINAL of CARDINAL DATE ( no . CARDINAL ) ORG examined an appellant ’s request regarding the unfairness of the proceedings and his conviction in absentia , after his application for leave to appeal out of time had been rejected as time - barred by ORG , the appellant not having appealed against that court ’s decision . In its decision , ORG did not examine the question of the calculation of the DATE time - limit for filing a constitutional appeal in respect of the unfairness of the proceedings . It would appear that the starting date was DATE on which the appellant had been notified of his conviction in absentia , namely DATE . The applicant had been convicted in absentia by a final court decision of CARDINAL March CARDINAL .

The relevant provisions of the ORG read as follows .

Article DATE Counsel appointed by the defendant

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

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

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

Article DATE General rules

“ CARDINAL . Procedural time - limits are determined in DATE , DATE and DATE .

ORG - limits are calculated on the basis of the ordinary calendar .

When a time - limit , which has been determined in DATE , ends at DATE ( “ DATE holiday ” ) or on a public holiday , its term is prolonged until the following DATE .

Article DATE Leave to appeal out of time

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

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

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

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

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

Article DATE The defendant ’s appeal

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

Articles CARDINAL–CARDINAL of the ORG govern the application for review of a final judgment . According to Article CARDINAL , the accused or the prosecutor may file a request for review in accordance with the limited grounds of review found in Article CARDINAL . The request is submitted to ORG which may decide to reject or accept it ( LAW .

On DATE , DATE , DATE and DATE , ORG , ORG , ORG and ORG , respectively , rejected the defendant ’s application for leave to appeal out of time on the ground that his conviction in absentia had acquired the force of res judicata and that the defendant had been effectively defended by a counsel appointed by family members ( see PERSON v. GPE , no . CARDINAL/CARDINAL , communicated to the respondent Government on DATE and pending before ORG ) .

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

Article CARDINAL of the Code of Civil Procedure provides that , when a statutory time - limit expires at DATE or on a public holiday , such time - limit will be deferred until DATE thereafter .

Article CARDINAL ( b ) of LAW provides that the calculation of time - limits shall be suspended on a DATE , a DATE and a public holiday .

LAW on the duration of TIME and holidays in State institutions ( Decision no . CARDINAL of DATE ) stipulates that DATE and DATE are “ DATE holidays ” .


VRANISKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" (No. 1)

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

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

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

On DATE the applicant was appointed as a bishop ( Епархиски Архиереј на Повардарската Епархија ) in ORG ( “ the ORG ” ) . By a decision of DATE , he designated the monastery PERSON in PERSON as his residence . However , he has resided and worked in the ORG and PERSON building ( PERSON the Eparchy building ” ) .

At a press conference on DATE the applicant stated that he would join ORG . On DATE considerable number of people ( according to the Government CARDINAL and according to the applicant , CARDINAL people ) gathered at the main square in ORG protesting against his decision and requesting his dismissal from the ORG . By a decision of DATE , which was made public through the media , ORG ( Светиот PERSON ) invited the applicant to reunite with ORG within DATE . When he refused , on DATE another public protest was organised at the main square in the city of GPE .

At an extraordinary meeting of DATE , ORG , by unanimous decision , dismissed the applicant from his office on the ground that , by his unilateral accession to ORG , he had violated the oath ( NORP исповедание/ заклетва ) by which he had bound himself to safeguard the ORG ’s unity and LAW . It designated the monastery PERSON in PERSON ( “ the monastery ” ) as his new place of residence and work . It further invited the applicant to reunite with the ORG within DATE , failing which other measures would be taken in accordance with its rules . It was also decided that ORG would run the PERSON building with effect from DATE ( “ the dismissal decision ” ) .

By a decision of DATE , a ORG ( “ the Commission ” ) was set up to take the PERSON building , furniture and funds from the applicant . The media were also informed about the above decisions .

On DATE the ORG requested ORG ( “ the NORP ” ) to assist with the implementation of its decisions . The request stated , inter alia :

“ ... Due to the possible obstruction of the enforcement of this decision by the Archbishop PERSON [ the applicant ] or someone else , we request the ORG office of ORG to take any necessary measures for its implementation ... ”

On DATE police officers were deployed around the Eparchy building . At TIME , representatives of the Commission ( “ the archbishops ” , владици ) arrived in order to hand over the dismissal decision to the applicant and to take the PERSON building . They were greeted by a group of people that have gathered in front of the entrance . The door of the PERSON building was locked . The archbishops waited for the applicant and the other staff , who were at that moment inside the PERSON building , to open the door . In the meantime , the number of people gathered in front of the PERSON building increased considerably . Due to the increased tension and indications of security risks for the public order , the life and health of the applicant and other personnel in the PERSON building , ORG sent a group of QUANTITY police officers . After TIME , the archbishops took measures to break in the Eparchy building . In this connection they instructed a locksmith to break the lock . In view of the security risks , several police officers , with the consent of the archbishops , entered the Eparchy building . After having entered , the archbishops discussed with the applicant . The police secured the Eparchy building in order to prevent the crowd from breaking in . The police assessed the situation as critical and advised the applicant that his further stay in the Eparchy building , without protection , would not be safe . In such circumstances , the applicant agreed to leave by the back door . Then , the applicant and the personnel got into a car of the ORG and escorted by the police went to the monastery .

The Government submitted a DVD containing video and audio material ( CARDINAL , QUANTITY . ) regarding the applicant ’s eviction . According to it , when the archbishops arrived on the scene , there were people gathered in front of the PERSON building and media representatives . At that moment , no policeman could be seen . Then a locksmith opened the door . According to an explanation given by a journalist , the lock was broken on the request of CARDINAL of the archbishops . After TIME waiting , the archbishops entered the Eparchy building first . After TIME , the applicant left the Eparchy building with a car of the ORG . At that moment , several policemen can be seen making a passage for the applicant ’s car to leave the scene . At that moment , many more people were gathered in front of the Eparchy building .

The applicant contested the ORG ’s version of events . He referred to the facts as established by the first - instance court in the civil proceedings described below , which the ORG had not contested at that time . He argued in particular that the police had accompanied the archbishops on their arrival in the PERSON building and that the locksmith had arrived with a car secured by the police .

In DATE the applicant , who was represented by counsel , brought a civil action against the ORG and the Ministry for interference with and deprivation of possession ( смеќавање на владение ) of the PERSON building . He also sought restoration in the previous state ( воспоставување на владетелска состојба каква што била во моментот на смеќевањето и одземањето на владението ) . He claimed that at TIME on DATE ORG had interfered with his right of peaceful enjoyment of the Eparchy building which had also served as his home . He alleged that CARDINAL fully - equipped police officers had broken the lock , with the assistance of a locksmith , and entered the building , despite the fact that there had been no decision of a State body authorising the police forcibly to enforce the dismissal decision . After the break - in , PERSON , the archbishops , had served the dismissal decision on him , with which he had refused to comply . He further alleged that he had been searched and insulted by police officers . He requested that the court take oral evidence from him , PERSON , PERSON , PERSON , PERSON , personnel in the PERSON building who had eye - witnessed the event , Mr T. and Mr A.

The applicant based his claim , inter alia , on Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the LAW ( see “ Relevant domestic law and practice ” below ) .

The ORG replied , inter alia , that it had acted on the ORG ’s request to enforce the dismissal decision with the aim of securing the place and preventing the disorder which had reasonably been expected to occur . Its purpose had been to protect not only the personal safety and property of the persons who had gathered , but those of the applicant as well .

On DATE ORG of ORG , relying on section CARDINAL(CARDINAL ) of the ORG and other LAW ( “ LAW ” ) , dismissed the applicant ’s claim . Relying inter alia on the statements given by the applicant , PERSON , PERSON , PERSON and PERSON it established the following : that the PERSON building had been the applicant ’s permanent residence , namely , that the upper floor had served as a place of residence for him and the other personnel and that the working premises of the PERSON had been on the lower floor ; that at TIME on DATE , media representatives and a group of people had gathered in front of the Eparchy building . As the applicant and other members of the staff had refused to open the door , the police , assisted by a locksmith , had broken in and searched the applicant , staff and LOC . The applicant had had a discussion with the archbishops and after he had refused to cooperate , the police coordinator had ordered the applicant and the personnel to leave the PERSON building by the back door . The applicant and the personnel had then got into a car and , escorted by the police , gone to the monastery .

The court held that :

“ ... it is undisputed that the plaintiff [ the applicant ] had possession of the Povardarska Eparchy , which had served not only as the plaintiff ’s [ the applicant ’s ] place of work for his duties as a bishop , but also as his home ... having regard to the anticipated obstruction by the plaintiff [ applicant ] or others and on the basis of the decision of DATE , the President of ORG requested [ the Ministry ] to enforce its decision ... As the plaintiff [ the applicant ] had refused to [ repudiate his previous conduct ] , it appears that ORG anticipated doubts concerning enforcement of the decision and the request for police intervention were reasonable ... The plaintiff [ the applicant ] and the personnel were taken out by the back door of the Eparchy building in order to avoid any contact with the people and any possible assault ... ”

The applicant appealed on the grounds , inter alia , that the lower court had dismissed his claim despite having established that he had had possession of the PERSON building , which had also served as his place of residence , and that that possession had been forcibly appropriated by the police . He complained that the court had wrongly applied section CARDINAL(CARDINAL ) of the LAW , as the ORG ’s decision could not be considered “ a decision of another body given in accordance with law ” . He also complained that ORG had acted as an executive body of the ORG by enforcing the dismissal decision with the use of force . He again invoked Articles CARDINAL § CARDINAL and CARDINAL of the LAW .

On DATE ORG dismissed the applicant ’s appeal , finding it undisputed that ORG had acted at the ORG ’s request .

On the facts established by the first - instance court , it held that the latter ’s decision should have been based on CARDINAL and not section CARDINAL(CARDINAL ) of the LAW . ORG found that :

“ ... the plaintiff [ the applicant ] had only occupied ( детенција ) the apartment situated in the PERSON building on the basis of his position as a bishop . His dismissal from this position and the assignment by ORG monastery as his permanent place of residence and work entailed the loss of that occupancy . As the plaintiff [ the applicant ] did not have possession within the meaning of section CARDINAL of the Act , he could not claim protection of the possession under section CARDINAL of the Act . ”

“ Article CARDINAL § CARDINAL

... ORG , as well as ORG in GPE , ORG , ORG , ORG and other religious communities and groups are separate from the ORG and equal before the law .

Article CARDINAL

The inviolability of the home is guaranteed .

The right to the inviolability of the home may be restricted only by a court decision for the investigation or prevention of criminal offences or protection of people ’s health .

Article CARDINAL

Every citizen may invoke protection of the freedoms and rights set forth in the LAW before the courts , including before ORG , in proceedings based on the principles of priority and urgency ... ”

Section CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW provide that a property owner can bring a civil claim for restitution against the occupier ( држателот ) of an individually specified property . The owner has to prove that he or she has title to the property of which restitution is claimed and that the defendant has actual control of that property .

Section CARDINAL(CARDINAL ) of the LAW provides , inter alia , that anyone who has control of property , either directly or through a representative , can claim to have possession ( владение ) of it .

Under LAW of the LAW , a person who , on the basis of a post of employment or a similar relationship , or as a member of a household , makes use of a property on the basis of another ’s order or executes another ’s decision without acquiring any personal advantage can not be regarded as having possession ( владение ) , as he or she is a mere occupier ( прост држател или детентор ) .

Under section CARDINAL(CARDINAL ) of the LAW , no one has a right unlawfully ( неовластено ) to disturb ( смеќава ) and deprive ( одзема ) the possession even if he or she considers having stronger right of possession . Under sub - section CARDINAL of the LAW , it is not considered an unlawful disturbance of possession if the disturbance or deprivation is authorised by law or by a decision of a court or other body taken in accordance with a law which provides for such disturbance or deprivation .

Section CARDINAL(CARDINAL ) of the LAW provides that a person in possession ( владетелот ) of a property or a holder of a proprietary right is entitled to protect his or her possession from disturbance or seizure .

Section CARDINAL of the LAW provides that a person whose possession has been unlawfully disturbed or seized is entitled to request the court to establish that the disturbance or seizure has taken place , to order reinstatement and proscribe any further or similar actions . Court protection is available in special proceedings in accordance with the most recent peaceful possession , regardless of the conduct of the person in possession and whether the disturbance was lawful and in the public interest .

Section CARDINAL of LAW defines different grounds for claiming civil compensation .

Under section CARDINAL , in the event that a human right or freedom is violated , the court may award just satisfaction regardless of whether or not compensation for pecuniary damage has been awarded .

Section CARDINAL of LAW provides that criminal proceedings must be instituted at the request of an authorised prosecutor . In cases involving offences subject to ex officio prosecution by the ORG or on an application by the injured party , the authorised prosecutor is the public prosecutor , whereas in cases involving offences for which only private charges may be brought , the authorised prosecutor is the private prosecutor . If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings , his role may be assumed by the injured party acting as a subsidiary prosecutor under the conditions specified in LAW .

Section CARDINAL provides , inter alia , that where the public prosecutor finds that there are no grounds for prosecuting an offence subject to ex officio prosecution , he shall notify the injured party of his decision within DATE . He shall also inform the injured party that he is entitled to conduct the prosecution himself . The latter may take over or continue the prosecution within DATE .

Under section CARDINAL , everyone can report a criminal offence subject to ex officio prosecution . The complaint is submitted to the public prosecutor , orally or in written .

Article QUANTITY CARDINAL of the Criminal Code provide , inter alia , that anyone who enters another ’s home without authorisation is liable to a fine or to a DATE prison sentence . If the offence is committed by an official in the performance of his or her duties , he or she is liable to a term of imprisonment of DATE . An attempt to commit the offence is also punishable .

Rule CARDINAL of the Rules of the Ministry sets out measures which the ORG ’s officials can take in discharging their duties . Under sub - heading CARDINAL , ORG officials can enter a person ’s home or other LOC after having shown an identity card and a court decision or order .

The Government submitted final decisions in which the national courts had convicted the defendants under LAW of breaching the inviolability of the victim ’s home . In those cases the courts had decided on the basis of private criminal complaints brought by the victims ( K.br.CARDINAL/CARDINAL ; K.br.CARDINAL/CARDINAL ; K.br.CARDINAL/CARDINAL ; ORG ; K.br.CARDINAL/CARDINAL ; K.br.CARDINAL/CARDINAL ; ORG ; K.br.CARDINAL/CARDINAL ; K.br.CARDINAL/CARDINAL ; K.br.CARDINAL/CARDINAL ; K.br.CARDINAL/CARDINAL ; K.br.CARDINAL/CARDINAL ; DATE ; K.br.CARDINAL/CARDINAL ; and PERSON ) .

In the case ORG of DATE a trial court convicted a bailiff under LAW of unauthorised entry of the victim ’s home in order to deliver a court summons . The bailiff was subject to ex officio prosecution by the public prosecutor .


The applicants , Mr PERSON , Mr PERSON and PERSON D’Antonio , are NORP nationals , born in DATE , DATE and DATE respectively . The first CARDINAL applicants are currently in FAC , while the third is in FAC . Mr Accardi was represented before the ORG by Mr PERSON , a lawyer practising in GPE ; PERSON and PERSON D’Antonio were represented by Mr PERSON , also a lawyer practising in GPE .

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

The first applicant and the third applicant are the parents of minors NORP and Y , twins born on DATE . The parents live apart . The third applicant lives with the second applicant .

Following a complaint lodged by the first applicant alleging that X and Y had been subjected to sexual abuse by their mother and the second applicant , ORG decided to place the children in ORG care . In DATE the court ordered that the children be returned to the family of their father , who was living with PERSON at the time . However , in DATE X informed his schoolteacher that Y had been subjected to further abuse , this time by the children ’s father . Proceedings were instituted against the CARDINAL applicants on charges of sexual abuse of minors .

On DATE the ORG investigating judge ( giudice per le indagini preliminari - ORG ) decided to hear evidence from X and Y in camera ( incidente probatorio ) . The hearing took place on DATE in the presence of the investigating judge and a psychologist , PERSON The applicants , their lawyers and the representative of ORG were in an adjacent room behind a CARDINAL - way mirror , enabling them to hear what was being said and observe the conduct of the witnesses . During the hearing PERSON put some of the questions to the children .

X confirmed having been abused by their mother and the second applicant , and gave details of the sexual abuse to which Y had allegedly been subjected by their father . Y was also questioned by PERSON However , when the psychologist asked her to specify what used to happen with her parents , Y replied that she was too ashamed . The investigating judge then decided to leave the hearing room and follow the questioning from behind the CARDINAL - way mirror . Y subsequently gave some details concerning the abuse perpetrated by the first and second applicants . When she became very upset , the questioning was discontinued .

On DATE the applicants were committed for trial before ORG .

The proceedings took place in camera . CARDINAL hearings were held , on CARDINAL , DATE and DATE . Numerous witnesses who had been in contact with X and Y at the time of the events were questioned . The court ordered the videotape of the hearing of DATE to be produced .

In a judgment of CARDINAL DATE ORG sentenced each of the applicants to CARDINAL years’ imprisonment .

The court noted that there were CARDINAL types of evidence that weighed against the defendants . First , there were the statements made by NORP and Y at the hearing on DATE ; second , there was the evidence of the persons questioned during the proceedings , who had second - hand knowledge of the events detailed by the victims , having been taken into their confidence . While the ORG statements ranked first in importance , the hearsay evidence had a role to play in checking the consistency of the versions provided by X and Y with the other particular circumstances of the case .

In the view of the court , the details provided by X and Y demonstrated that they had indeed been subjected to abuse , as it would have been difficult for children so young to invent details of sexual practices known only to adults . As the videotape of the hearing of DATE showed , X and Y , through their general demeanour and the nature of their replies , displayed signs of profound unease and great distress when confronted with the memory of their painful experiences . Their statements therefore constituted strong evidence in the case against the defendants .

It further emerged from the evidence given during the proceedings that X and Y had recounted details of the abuse to third parties , such as members of their host family , the first applicant ’s live - in partner , a home teacher and a schoolteacher . According to the schoolteacher and to a social worker , X and Y showed signs of disturbed behaviour , a finding confirmed by memoranda from the social services department . This evidence corroborated the children ’s statements , with the result that the applicants were found guilty .

The applicants appealed .

The first applicant confined himself to challenging the assessment of the evidence and the interpretation of the statements made by X and Y.

The second and third applicants argued that , in the course of the proceedings at first instance , the court had declined to hear evidence from an expert witness instructed by the defence who would , they contended , have been able to shed light on the circumstances surrounding the children ’s statements , in order to establish whether and to what extent those circumstances might have influenced their version of events . Furthermore , the court should have ordered a psychologist ’s report on the children to determine whether they showed signs of having been sexually abused . The second and third applicants also requested that the children be questioned again in the presence of child psychology experts , not just about the abuse itself , but also about the existing family relationships .

According to the second and third applicants , it was likely that the children , whose DATE had been spent in a difficult and precarious situation , had simply witnessed the sexual practices of the adults and later imagined that they had themselves been involved in the acts in question . This explanation was especially plausible , they argued , given that the questions put by PERSON at the hearing of DATE had been of a leading nature . They further submitted that the investigating judge had prevented the parties from asking the children questions .

The second and third applicants appended a psychologist ’s report to their notice of appeal which concluded that , in view of the manner in which they had been obtained , the children ’s statements should not have been used as the sole basis for convicting the defendants .

By a judgment of DATE , ORG reduced the third applicant ’s sentence to DATE imprisonment . It upheld the remainder of the decision at first instance .

ORG observed that the versions of X and Y contradicted each other in places . In addition , the children had been vague as to when exactly the abuse had taken place . However , the defence ’s argument that the children had confused reality and imagination was unfounded , bearing in mind the nature of the details recounted by X and Y and the signs of distress they had manifested during and after the hearing . Furthermore , the children could not have been expected to open up completely to a psychologist they had just met and to a judge – the investigating judge – whom they did not know . Accordingly , the statements made at the hearing of DATE needed to be assessed in conjunction with the details confided by the children to people around them , who had been questioned during the proceedings at first instance . That process placed the contradictions in context and proved that the abuse complained of had been perpetrated by the applicants .

ORG observed further that there were no grounds for doubting the children ’s ability to describe their experiences , and that their statements had been , by and large , consistent . In the light of those considerations , there had been no need for a psychologist ’s report on the children , who had already been kept under observation for a long time by a psychologist employed by the social services department . A further hearing would have been no more than a re - run of the hearing of DATE . In that connection ORG stressed that the applicants and their lawyers had taken part in the hearing in question and had had the opportunity of asking the children any questions they considered necessary to their defence , through the intermediary of the investigating judge .

As to the manner in which the hearing of DATE had been conducted , ORG noted that PERSON had adapted her approach to the degree of participation and cooperation of the children . The psychologist had thus put more specific questions to X , who appeared to be more open than Y.

The applicants lodged an appeal on points of law .

The first applicant complained first of all that the questioning of X and Y had been invalid , observing that the questions had been put to the children by PERSON rather than by the investigating judge , and had been put in a leading manner . The first applicant further submitted that ORG had lent excessive weight to the evidence of persons with only second - hand knowledge of the facts , and argued that the reasons given for the judgment of DATE had been illogical and contradictory .

The second and third applicants objected that their convictions had been unsafe , on the ground that no decisive proof had been produced . They referred in particular to the decision not to question the victims again or to order a psychologist ’s report on the children and another one to determine whether X and Y had been fit to give evidence . The second and third applicants also alleged that the reasons given for the judgment of CARDINAL DATE had been illogical and contradictory , as their guilt had not been proven beyond any reasonable doubt .

In a judgment of DATE , deposited with the registry on DATE , ORG dismissed the ORG appeals , finding that ORG had given logical and correct reasons for its findings on all the points at issue .

ORG observed that it had been for the trial and appeal courts to decide whether further evidence ( such as the expert reports requested by the defendants ) was required , and that a further hearing of the children had not been necessary . Moreover , the questioning of X and Y had been conducted by the investigating judge , not by PERSON ; the fact that some questions had been put directly by the psychologist was irrelevant . In any event , under NORP law , failure to adhere to the methods laid down for questioning did not invalidate the proceedings .