CASE OF MITREVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant was born in the village of PERSON and lives in GPE .

On DATE his brother ( “ the plaintiff ” ) brought a civil action against him for a declaration that he owned CARDINAL of a plot of land and a house ( “ the property ” ) .

A hearing on DATE was adjourned because the applicant had not been duly summoned .

At a hearing on DATE the court ordered the plaintiff to provide further particulars of his claim . It further sought to obtain a deed of gift dating from DATE .

According to the ORG , at a hearing on DATE the court granted the plaintiff 's request to carry out an on - site inspection ( увид ) and to examine witnesses . The applicant arrived late at the hearing , but was informed of the place and time of the next hearing . The Government submitted a barely legible copy of the record , which had been signed by the applicant .

At the on - site inspection on DATE , the trial court heard evidence from CARDINAL witnesses concerning the history of the property . The record indicates that the applicant was absent , even though he had been duly summoned .

A hearing fixed for DATE was adjourned at the applicant 's request .

At a hearing on DATE the plaintiff 's counsel stated that his client had suffered a stroke and was not medically fit to give a statement . The court ordered him to submit a medical report and on DATE in DATE , the plaintiff 's counsel submitted a medical report certifying that his client was not medically fit to give a statement .

On DATE the composition of the bench changed and the hearing restarted .

At a hearing on DATE the applicant disputed the plaintiff 's legal capacity to bring the proceedings . He stated , inter alia :

“ ... [ NORP reviewing the file , I have concerns as to the validity of the plaintiff 's letters of authority ... We propose that the court assess his capacity ... ”

According to the court record , the court ruled that the next hearing would be held on DATE on - site in order to assess the plaintiff 's health and the validity of his signature on the letter of authority . It further noted that those present should consider the announcement of the next hearing as equivalent to service of a court summons . The applicant and his counsel both attended the hearing .

On DATE the court held a hearing at the scheduled time , but in the court room instead of on - site . The court heard evidence from the plaintiff and established the validity of the letter of authority . It further read the record of the on - site inspection of DATE and the witnesses ' statements . It noted that the applicant was absent , even though he had been duly summoned . Following the hearing , the trial court gave a decision declaring the plaintiff to be the owner of the property and ordered the applicant to recognise his title . It based its findings on a court decision of DATE by which the plaintiff had been declared heir of the property . It further established that he had lived in the house and had had actual possession ( владение ) of the property since . The trial court based its decision on considerable evidence : an expert opinion ; a record of the on - site inspection ; statements of witnesses ; and other physical evidence .

On DATE the applicant appealed , arguing , inter alia , that he had been deprived of the opportunity to participate in the proceedings . He said that he had been prevented from attending the hearing on DATE as it was held in the court room , instead of on - site as scheduled . He submitted that that failure could be regarded as a substantial defect in the proceedings , contrary to section DATE ) of LAW ( see “ Relevant domestic law ” below ) . He further complained that the trial court had taken into consideration the statements of the witnesses from the on - site hearing of DATE which had been held in his absence .

On DATE ORG dismissed the applicant 's appeal and upheld the lower court 's decision finding no grounds to depart from the reasons given . Concerning the applicant 's complaints about the hearing of DATE , it stated :

“ ... [ The applicant ] was duly summoned as he attended the hearing of DATE when the date and time for the hearing were fixed . Therefore , he was obliged to appear in court and depending on whether the plaintiff was also present , it was for the court to decide whether it would visit the plaintiff in his home or hold the hearing in the court room . As the plaintiff appeared in the court ... it was not necessary to go on - site ... [ The applicant ] was properly summoned and has failed to justify his absence ... ”

As regards the applicant 's complaints concerning the examination of the witnesses at the on - site hearing on DATE , the court stated , inter alia :

“ ... [ The applicant 's ] complaints that the court examined the witnesses at the hearing on DATE in his absence are ill - founded , as he failed to attend , despite having been duly summoned ... If [ the applicant ] had attended the hearing , he would have been able to discuss and challenge their statements , as well as to call other witnesses for examination ... ”

At the material time section CARDINAL(CARDINAL ) of LAW ( ORG за парничната постапка ) ( “ the Act ” ) provided that the court should summon the parties and any other persons whose presence was required in due time .

Section CARDINAL of the Act provided that hearings were normally to take place in the court . The court could decide to hold a hearing outside the court LOC if it was considered necessary and/or would save time or reduce costs .

Section CARDINAL(CARDINAL ) of the LAW laid down that if a hearing was adjourned , the court was required where possible to inform those present immediately of the time and venue of the next hearing .

Section CARDINAL(CARDINAL ) of the LAW provided that civil proceedings were substantially defective if the court did not apply or incorrectly applied a statutory provision or failed to take into account a circumstance which would or could have influenced the adoption of a lawful and just decision .

Section CARDINAL(CARDINAL)(CARDINAL ) of the Act provided that proceedings were substantially defective if a party was deprived of the opportunity to participate in them by unlawful conduct , such as the absence of a proper summons .


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-a - After conviction;Article 5-1-c - Reasonably necessary to prevent offence;Article 5-1-e - Alcoholics;Persons of unsound mind);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and is currently detained in FAC .

On DATE the GPE ORG acquitted the applicant of , inter alia , CARDINAL counts of assault , CARDINAL counts of dangerous assault , of sexual assault and of procuring for lack of criminal responsibility and ordered his placement in a psychiatric hospital under LAW ( see paragraph DATE below ) .

ORG found that DATE the applicant , who had previously been convicted , in particular , of several counts of assault in GPE and GPE , had committed the offences he had been charged with . The applicant was found , in particular , to have violently threatened with a gun and knife , hit and attempted to strangulate his wife , partly using dangerous instruments or teargas , on a number of occasions . He inflicted on his wife multiple injuries including fractures of her jaw , cheekbones , nose and skull , snags to her nose and genitals as well as lacerations , bruises and swellings all over her body . He had further forced his wife to prostitution for his own material benefit , had forced her to dance naked for an acquaintance and had chased her naked in a forest . Moreover , he had assaulted and sexually assaulted his female friend and a relative of his wife with whom he had an intimate relationship ( fettering the latter naked to a tree , urinating on her and introducing fir cones into her rectum and vagina ) .

ORG , having consulted CARDINAL medical experts , found that the applicant suffered from a brain disorder , a borderline personality disorder manifesting itself in emotional instability and a paranoiac jealousy and had partly been drunk during his acts . Owing to his pathological mental disorder , it could not be excluded that he had acted without criminal responsibility . ORG further considered that the applicant was to be placed in a psychiatric hospital as he was liable to commit further serious offences and was therefore dangerous to the public .

Following ORG judgment , the applicant was placed in different psychiatric hospitals . From DATE onwards , he was in ORG psychiatric hospital , from DATE in Straubing psychiatric hospital , from DATE in Düren psychiatric hospital and from DATE in GPE - Hau psychiatric hospital . Following his escape from that clinic in DATE , he was again detained in Düren psychiatric hospital from DATE and subsequently in ORG psychiatric hospital . His detention in a psychiatric hospital was confirmed DATE by the competent ORG .

On DATE the city of ORG ordered the applicant ’s expulsion to GPE after he had renounced NORP nationality in DATE . The decision became final .

On DATE ORG terminated the applicant ’s detention in a psychiatric hospital ordered by ORG on DATE ( Article CARDINAL § CARDINAL of LAW , see paragraph DATE below ) . It further delivered its decision , taken DATE , to order the applicant ’s provisional detention pending the competent court ’s decision whether or not he was to be placed in preventive detention retrospectively .

Having heard evidence from a psychiatric expert , PERSON , who had examined the applicant in person , ORG found that the applicant suffered from a personality disorder with paranoiac and dissocial elements . However , that disorder did not exclude or diminish his criminal responsibility . His continued dangerousness for women , in particular for his ex - wife , did not result from a pathological mental disorder but from his chosen attitude towards women .

The applicant was accordingly transferred from the psychiatric hospital to prison .

On DATE the GPE ORG , relying on LAW ( see paragraph CARDINAL below ) , which it considered compatible with LAW , ordered the applicant ’s preventive detention retrospectively ( nachträgliche GPE ) .

The GPE ORG noted that , as required by Article CARDINAL of LAW , ORG had terminated the applicant ’s placement in a psychiatric hospital on DATE pursuant to Article CARDINAL § CARDINAL of LAW .

ORG further found that the requirements of LAW ( CARDINAL ) of LAW were met . The GPE ORG had ordered the applicant ’s placement in a psychiatric hospital in DATE as the applicant had committed , inter alia , several counts of dangerous assault , an offence listed in LAW .

Furthermore , ORG considered that a comprehensive assessment of the applicant , his offences and his development during his placement in the psychiatric hospitals revealed that it was very likely that , if released , he would again commit serious offences , similar to those following which he had been placed in a psychiatric hospital , against women related to him , resulting in considerable psychological and physical harm to the victims ( LAW ( CARDINAL ) of LAW ) . It noted that both psychiatric experts it had consulted had convincingly diagnosed the applicant with a dissocial personality disorder necessitating therapy , and CARDINAL of them , in addition , with sexual sadism , without his criminal responsibility being diminished or excluded thereby . Expert H. , in particular , had considered that the applicant suffered from a combined personality disorder with dissocial , psychopathic , paranoiac and emotionally unstable elements and had formerly abused alcohol . Expert PERSON had found , in particular , that the applicant was a psychopath .

ORG considered that the applicant ’s offences disclosed a violent , degrading and partly sadist attitude towards women which had not changed during his placement in different psychiatric hospitals . The preventive detention of the applicant , who had a propensity to commit serious violent offences , was proportionate . In particular , the applicant ’s planned departure to GPE was irrelevant in that respect because Article CARDINAL of LAW served to protect potential victims not only in GPE , but also in other GPE including GPE .

On DATE the applicant lodged an appeal on points of law which he reasoned on DATE . He argued that LAW of LAW and the decisions ordering his preventive detention retrospectively , which were based on that provision , violated his right to liberty and were thus incompatible with LAW and with LAW .

On DATE ORG dismissed the applicant ’s appeal on points of law as ill - founded .

On DATE the applicant , represented by counsel , lodged a constitutional complaint with ORG . He argued that the retrospective order for his preventive detention , based on LAW , violated his right to liberty under LAW of LAW . It also disproportionately interfered with that right because his expulsion to GPE would have been as effective as his detention in order to protect potential victims in GPE while interfering less with his fundamental rights .

On DATE a chamber of CARDINAL judges of ORG , without giving reasons , declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

According to the Government , in Straubing Prison , CARDINAL doctors , CARDINAL psychologists , CARDINAL educationists and CARDINAL social workers offer help to detainees ( it has not been specified for how many detainees these staff members were responsible ) . Sexual and violent offenders may be transferred to a suitable social therapeutic institution if their reintegration into society may be better furthered thereby . If a group therapy proves unsuitable , they may be offered an individual therapy . There are additional courses aimed at preventing further offences on release , including antiaggression , anti - violence and reasoning and rehabilitation training . Furthermore , detainees who committed their offences under the influence of alcohol or drugs are offered addiction counselling .

NORP The applicant had initially not been ready to apply for his transfer to ORG social therapeutic institution which , according to the prison therapists , would offer him a suitable social therapy for sexual offenders . He claimed to be a violent offender in the first place and to have undergone a sexual therapy already in the psychiatric hospitals . The Erlangen prison authorities later refused the applicant ’s request dated DATE to be admitted to its social therapeutic institution for violent offenders . It argued that he did not fit into the institution ’s therapeutic concept targeted at offenders sentenced for offences of an average gravity . The applicant did not apply to be admitted to another social therapeutic institution in FAC . He further did not apply for any training courses or addiction counselling .

The applicant has been working in Straubing Prison . He received a visit from his sister once , spoke to his mother on the phone regularly and exchanged letters with her and with CARDINAL other acquaintances . He has not received any relaxations in the conditions of his detention in view of the enforceable expulsion order against him .

On DATE ORG dismissed the applicant ’s request to declare his preventive detention unlawful . On DATE ORG dismissed the applicant ’s appeal .

On DATE ORG dismissed the applicant ’s request of DATE to declare the execution of his preventive detention unlawful . It found , in particular , that the judgment of ORG DATE in the case of PERSON v. GPE ( no . CARDINAL , ECHR DATE ) did not constitute a bar to the execution of the judgment in the applicant ’s case . That court ’s judgments were only binding between the parties to the proceedings in the case of PERSON GPE , which had , moreover , concerned a different subject - matter .

On DATE ORG dismissed the applicant ’s appeal . It took the view that the question of whether the applicant ’s preventive detention breached the prohibition of retrospective punishment could not be examined in the present proceedings concerning the execution of the applicant ’s preventive detention . That issue had to be dealt with in review proceedings under LAW ( see paragraph CARDINAL below ) . In those proceedings , it had to be examined whether , owing to specific circumstances relating to his person or his conduct , it was highly likely that the applicant would commit the most serious crimes of violence or sexual offences if released .

On DATE ORG , in review proceedings under Articles CARDINALd DATE of LAW ( see paragraphs DATE below ) , declared the applicant ’s preventive detention ordered by the GPE ORG on DATE terminated and ordered the applicant ’s supervision of conduct .

ORG noted that in her report dated DATE , psychiatric expert PERSON had considered that the applicant suffered from a personality disorder with paranoiac , dissocial and narcissistic elements and from emotional instability . There was a risk of MONEY that the applicant would commit further violent offences against a person related to him in DATE to come if released . The applicant therefore suffered from a mental disorder within the meaning of LAW . However , in ORG view , there was not a high risk , owing to specific circumstances relating to the applicant ’s person or conduct , that he would commit the most serious crimes of violence or sexual offences if released . The requirements set up in ORG judgment of CARDINAL DATE for a continuation of the applicant ’s retrospective preventive detention , which applied a fortiori in a case like that of the applicant who had initially been acquitted for lack of criminal responsibility , had therefore not been met .

On DATE ORG , allowing the prosecution ’s appeal , quashed the decision of ORG and ordered the applicant ’s preventive detention to continue . Contrary to ORG , it considered that under ORG judgment of CARDINAL DATE , it was sufficient for preventive detention ordered under LAW to continue if there was a risk , owing to specific circumstances relating to the applicant ’s person or conduct , that the person concerned would commit serious crimes of violence or sexual offences . These requirements were met in the applicant ’s case . It was not necessary that there was a high risk of the most serious crimes of violence or sexual offences or that the applicant suffered from a mental disorder . These requirements applied only to the ( different ) cases of preventive detention with retrospective effects which had been at issue in ORG judgment .

On DATE ORG , having heard the applicant in person , dismissed the request made by the city of Straubing to order the applicant ’s placement in a psychiatric hospital under the NORP ( Mentally Ill Persons’ ) Placement Act ( see paragraph CARDINAL below ) . It found that the disorder the applicant suffered from was not so serious as to affect the applicant ’s free will . Consequently , the requirements for his detention under LAW of the NORP ( Mentally Ill Persons’ ) Placement Act were not met . It was not the purpose of the said LAW to authorise the detention of all persons suffering from a mental disease or to close gaps in the provisions on preventive detention .

On DATE FAC authorities lodged a request with ORG to order the applicant ’s detention under LAW ( see paragraph CARDINAL below ) .

On DATE ORG ordered the applicant ’s provisional detention for a maximum period of DATE under LAW from the moment the termination of the applicant ’s retrospective preventive detention became final . It noted that the psychiatric experts PERSON had found in their reports , drawn up on the basis of the case - file alone , that the applicant suffered from a personality disorder with dissocial , psychopathic / narcissistic and paranoiac elements and emotional instability . He had previously abused alcohol . He might suffer , in addition , from sexual sadism . The experts had considered that there was a high and a medium to high risk respectively that the applicant would commit further violent offences , in particular against persons closely related to him , if released . The court , endorsing the experts’ findings , therefore considered that there were grounds for concluding that the requirements for the applicant ’s detention under LAW were met .

A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , § § DATE , ECHR DATE ) . A summary of the provisions of LAW the right to liberty ( LAW ) and the ban on retrospective application of criminal laws ( LAW ) can also be found in that judgment ( ibid . , LAW and DATE ) . The provisions referred to in the present case provide as follows :

Measures of correction and prevention ( see Articles CARDINAL et seq . of LAW ) cover , in particular , placement in a psychiatric hospital ( LAW ) or in preventive detention ( LAW ) . They may be ordered for offenders in addition to their punishment ( compare Articles CARDINAL et seq . of LAW ) . They must , however , be proportionate to the gravity of the offences committed by , or to be expected from , the defendants as well as to their dangerousness ( LAW of LAW ) .

Article CARDINAL of the Criminal Code governs orders for a person ’s preventive detention made by the sentencing court when finding the person guilty of an offence . That court may , at the time of the offender ’s conviction , order his preventive detention ( a so - called measure of correction and prevention ) under certain circumstances in addition to his prison sentence ( a penalty ) , if the offender has been shown to be a danger to the public .

Under LAW , first sentence , of LAW , in its version in force at the time of the order for the applicant ’s retrospective preventive detention , preventive detention may be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences , including murder , rape and dangerous assault , to DATE imprisonment , if he has previously been convicted ( only ) once of CARDINAL or more such offences to CARDINAL GPE imprisonment and if the remaining requirements laid down in LAW ( CARDINAL ) and ( CARDINAL ) are met .

The Retrospective Preventive Detention Act ( Gesetz zur Einführung der nachträglichen GPE ) of DATE , which entered into force on DATE , inserted Articles CARDINALb and QUANTITY into LAW ; the latter provision was amended by LAW of DATE . The provisions in question were aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under LAW were no longer met ( including cases in which they had never been met from the outset ) , but who were still dangerous to the public ( see ORG documents ( ORG ) , no . CARDINAL , pp . CARDINAL , CARDINAL ) .

NORP In fact , under the case - law previously established by the courts dealing with the execution of sentences , a person ’s placement in a psychiatric hospital had to be terminated and the person concerned had to be released if he no longer suffered , or had in fact never suffered , from a condition excluding or diminishing his criminal responsibility , even if that person was still dangerous to the public ( see ORG , no . CARDINAL GPE CARDINAL/CARDINAL , decision of CARDINAL DATE , ORG für ORG ( ORG ) DATE , p. CARDINAL ; ORG , no . CARDINAL Ws CARDINAL , decision of CARDINAL DATE , ORG für PERSON ( ORG ) DATE , p. CARDINAL ; ORG , no . CARDINAL StR CARDINAL/CARDINAL , judgment of DATE , Collection of decisions of ORG in ORG ( BGHSt ) no . DATE , p. CARDINAL ; see also ORG , CARDINAL . CARDINAL BvR CARDINAL/CARDINAL and DATE , decision of DATE , ORG ( ORG ) DATE , p. CARDINAL ; and ORG , no . CARDINAL StR CARDINAL/CARDINAL , decision of CARDINAL DATE , § CARDINAL with further references ) .

Article CARDINALb § CARDINAL of LAW , in its version in force at the relevant time , provided :

“ ( CARDINAL ) NORP If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article CARDINAL § CARDINAL because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement , the court may order preventive detention retrospectively if

NORP the placement of the person concerned under LAW was ordered on the basis of several of the offences listed in LAW , first sentence , or if the person concerned had either already been sentenced to CARDINAL years’ imprisonment or had been placed in a psychiatric hospital because of CARDINAL or more such offences , committed prior to the offence having led to that person ’s placement under LAW , and

a comprehensive assessment of the person concerned , his offences and , in addition , his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims . ”

Article CARDINAL of LAW , in its version in force at the relevant time , provided :

“ ( CARDINAL ) NORP If , after enforcement of an order for placement in a psychiatric hospital has started , the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate , it shall declare the measure terminated . On termination of the measure , the conduct of the person concerned shall be supervised . ... ”

The said CARDINAL provisions remained valid also under LAW ( Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung ) of DATE , which entered into force on DATE , for offences committed after the entry into force of that LAW . As a result of the abolition of paragraphs CARDINAL and CARDINAL of Article CARDINALb of LAW by LAW , the former paragraph CARDINAL , slightly amended , became the only provision of that Article .

Article CARDINAL of the Criminal Code governs the duration of preventive detention . Paragraph CARDINAL , first sentence , of that LAW provides that if there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release .

Pursuant to Article CARDINAL of LAW , the court ( that is , the chamber responsible for the execution of sentences ) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied or should be declared terminated . It is obliged to do so within fixed time - limits ( paragraph CARDINAL of Article CARDINAL ) . For persons in preventive detention , this time - limit is DATE ( paragraph CARDINAL of Article CARDINAL ) .

The detention of mentally ill persons is provided for , first of all , in LAW as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned . LAW provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility , the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that , as a result of his condition , he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public .

Secondly , pursuant to sections CARDINAL § CARDINAL , CARDINAL and CARDINAL of LAW on the Placement in an Institution of Mentally Ill Persons and Their Care of DATE ( NORP ( Mentally Ill Persons’ ) Placement Act – Bayerisches Gesetz über die PERSON LOC deren GPE ) a court may order a person ’s placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill and thereby poses a severe threat to public security and order . Such an order may only be executed as long as no measure under LAW has been taken ( LAW of LAW ) .

Furthermore , on DATE , following the ORG ’s judgment in the case of PERSON GPE ( cited above ) , LAW Gesetz zur Therapierung und PERSON gestörter PERSON ) entered into force . Under sections CARDINAL § CARDINAL and CARDINAL of that Act , the civil sections of ORG may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention . Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under LAW of LAW . The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life , physical integrity , personal liberty or sexual self - determination of another person . The person ’s detention must be necessary for the protection of the public .

DATE . On CARDINAL DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period and also concerning the retrospective order for a complainant ’s preventive detention under LAW of LAW ( file FAC . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) . Reversing its previous position , ORG held that all provisions concerned , both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention , were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .

The Federal Constitutional Court further held that all the relevant provisions of LAW on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention . It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE and LAW in its version of DATE .

ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the latest . In relation to detainees whose preventive detention had been prolonged retrospectively , or ordered retrospectively under LAW of LAW ( but not preventive detention ordered LAW ) , the courts dealing with the execution of sentences had to examine without delay whether the persons concerned , owing to specific circumstances relating to their person or their conduct , were highly likely to commit the most serious crimes of violence or sexual offences and if , additionally , they suffered from a mental disorder within the meaning of section CARDINAL § CARDINAL of the newly enacted Therapy Detention Act . As regards the notion of mental disorder , ORG explicitly referred to the interpretation of the notion of “ persons of unsound mind ” in LAW sub - paragraph ( e ) of the LAW made in this ORG ’s case - law ( see § § CARDINAL and CARDINAL - CARDINAL of ORG judgment ) . If the above pre - conditions were not met , those detainees had to be released DATE . The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality ; as a general rule , proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released .

In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON GPE ( cited above ; see § § CARDINAL ss . of ORG judgment ) . It stressed , in particular , that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in LAW required an individualised and intensified offer of therapy and care to the persons concerned . In line with the ORG ’s findings in the case of PERSON GPE ( cited above , § CARDINAL ) , it was necessary to provide a high level of care by a team of multi - disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success ( see § CARDINAL of ORG judgment ) .


CASE OF MARCELLO VIOLA v. ITALY [Extracts]

No violation of Art. 6;No violation of P7-4

Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;John Hedigan;Vladimiro Zagrebelsky

The applicant was born in DATE and is currently detained in FAC .

On DATE the applicant was arrested and remanded in custody on charges of murder and belonging to a mafia - type organisation . He was also charged with a number of counts of illegally carrying weapons . In particular , he had allegedly aided and abetted the carrying in a public place of a weapon used to commit a number of murders , including that of CARDINAL GPE

In a judgment of DATE , ORG sentenced the applicant to DATE imprisonment for membership of a mafia - type criminal organisation . He was acquitted of the other charges .

The applicant appealed .

In a judgment of DATE , the NORP di ORG of Appeal reduced the applicant 's prison sentence to DATE .

The applicant appealed on points of law . In a judgment of CARDINAL DATE , the text of which was deposited at the registry on DATE , ORG dismissed the applicant 's appeal .

In the meantime , on DATE , the NORP di GPE investigating judge had made a fresh order for the applicant 's detention pending trial . On DATE he had committed the applicant to stand trial in ORG . The applicant was charged with several counts of murder and attempted murder , membership of a mafia - type criminal organisation and illegally carrying a weapon . The applicant was accused , in particular , of having given orders to murder PERSON He was also accused of being an accomplice to carrying the weapon used to commit the crime . The applicant had alleged that this weapon had been CARDINAL of the ones that he had been accused of carrying in the first set of criminal proceedings .

During the proceedings a number of witnesses , including pentiti ( former mafiosi who have decided to cooperate with the authorities ) , were examined .

NORP In a judgment of CARDINAL DATE , ORG imposed CARDINAL life sentences on the applicant and ordered him to serve DATE of his sentence in solitary confinement . It imposed an additional sentence of a total of DATE imprisonment on him . The decision was based on statements by the pentiti , which were considered to be accurate and credible and were corroborated by other evidence .

The applicant appealed .

From DATE the applicant was subject to a restricted prison regime , provided for by CARDINAL bis of PERSON no . CARDINAL of CARDINAL DATE ( known as “ the Prison Organisation Act ” ) , which , among other things , limited his contact with the outside world . Accordingly , the applicant was no longer brought to the hearing room from prison . He was , however , able to participate in the hearings of DATE and DATE and DATE by means of an audiovisual link with the hearing room .

By a judgment of DATE , the NORP di ORG acquitted the applicant of CARDINAL of the charges of murder . It found that the offences committed by the applicant were part of a single criminal design ( unico disegno criminoso ) and reduced his sentence to CARDINAL life sentence and solitary confinement for DATE .

The applicant appealed on points of law . He complained , inter alia , of a failure on the part of ORG to give reasons for its finding that , despite a number of gaps in their evidence , the prosecution witnesses were credible . With regard to the murder of GPE , the applicant observed that part of the evidence adduced by the prosecution was that the police had found a PCARDINAL Walther pistol inside a car parked near land belonging to him . In the first set of criminal proceedings , however , the applicant had been acquitted of the charge of carrying that pistol . Moreover , that circumstantial evidence did not in any way establish that he had given orders to murder PERSON

The applicant did not allege that there had been a violation of the right to a fair trial on account of the nature of his participation in the appeal hearings .

In a judgment of CARDINAL DATE , the text of which was deposited at the registry on DATE , ORG dismissed the applicant 's appeal . It held that ORG had given logical and proper reasons for its decision on all the disputed issues .

Law no . CARDINAL of DATE introduced , among the implementing provisions of LAW ( ORG ) , a new LAW bis which , in its relevant parts and after the amendments introduced by PERSON no . CARDINAL of DATE , is now worded as follows :

“ CARDINAL . In proceedings concerning CARDINAL of the offences provided for in LAW , paragraph QUANTITY bis , and LAW , paragraph CARDINAL , sub - paragraph ( a ) , no . CARDINAL of the Code [ that is , mainly ORG - related and other serious offences ] , a person who , in any capacity , is detained in a prison shall participate in the hearings at a distance [ a distanza ] in the following cases :

( a ) where there are serious requirements of public safety or order ;

( b ) where the proceedings are particularly complex and participation at a distance is deemed necessary in order to avoid delays . In considering the requirement of avoiding delays in the proceedings , regard shall also be had to the fact , where applicable , that other proceedings are pending at the same time against the same defendant before different courts .

CARDINAL bis . Besides the cases provided for in paragraph CARDINAL , participation at a distance shall also be arranged in proceedings brought against a detainee who has been the subject of the measures provided for in section CARDINAL bis , paragraph CARDINAL , of PERSON no . CARDINAL of CARDINAL DATE ...

NORP The decision to order participation at a distance shall be taken , if necessary of their own motion , by the president of the trial court or of ORG ... during the preliminary measures stage , or by the judge ... during the proceedings . The order shall be communicated to the parties and defence counsel DATE prior to the hearing .

Where an order is made for participation at a distance , an audiovisual link shall be activated between the hearing room and the place of detention so that the persons present in both places can see each other clearly and simultaneously and hear what is being said . If the measure is ordered in respect of several defendants who are being detained , in any capacity , in different places , each [ of them ] shall , by means of the same arrangement , be able to see and hear the others .

Defence counsel or his or her replacement must always be able to be present where the accused is situated . Defence counsel , or his or her replacement present in the hearing room , and the accused shall be able to confer confidentially , by means of appropriate technical equipment .

The place from which the accused is connected by audiovisual link to the hearing room shall be regarded as an extension of the hearing room [ è equiparato all'aula d'udienza ] .

An officer of the court qualified to assist the judge ... shall be present at the place where the accused is situated and shall certify the latter 's identity and officially note that there is no impediment to or restriction on the exercise of his or her rights and entitlements . He or she shall also certify that the provisions of paragraph CARDINAL and the second sentence of paragraph CARDINAL have been complied with , and , if the examination takes place , that the precautions have been taken to ensure the lawfulness thereof ... To that end he shall consult , if necessary , the accused and his counsel . ...

If it becomes necessary during the proceedings to arrange a confrontation between witnesses or identification of the accused or another measure requiring him to be observed in person , the judge shall , if he considers it necessary , after hearing the parties , order that the accused be present in the hearing room for the time necessary to comply with that measure . ”

According to ORG ( order no . CARDINAL of CARDINAL DATE ) , participation at a distance seeks to achieve the following aims : ( a ) protect public order in the event of possible acts of intimidation by the accused against other parties in the trial ; ( b ) prevent the transfer of the accused from prison to the hearing room from becoming an opportunity to renew contact with the criminal organisations to which they belong ; and ( c ) expedite the conduct of particularly complex and long trials , which often take place in different courts . ORG has also stated that the system introduced by PERSON no . CARDINAL of DATE guarantees the right of persons accused of exceptionally serious offences to participate in their trial , while weighing that right against the duty to protect the public and ensure the proper conduct of the trial ( ordinato svolgimento dei processi ) .

NORP In its judgment no . CARDINAL of DATE , ORG held that participation at a distance was compatible with the “ right to a defence ” , as guaranteed by LAW . It stated that it could not accept the idea that only the physical presence of the accused in the hearing room would ensure the effectiveness of this right , since LAW required only the personal and conscious ( consapevole ) participation of the defendant in the proceedings . LAW implementing provisions of the ORG was not limited to indicating the technical means necessary to installing a link between the hearing room and the place of detention , but required that certain “ results ” be attained and , in particular , the “ effective ” participation of the accused in the proceedings with a view to ensuring the proper exercise of his right to a defence . There were also legislative provisions guaranteeing contact between the accused , the right of defence counsel to be present where the defendant was situated and the ability of the accused and his counsel to communicate with each other . The judge had the power and the duty to ensure that the technical means installed were appropriate to the aims sought to be achieved and could , if necessary , order the accused to be present in the hearing room . In the opinion of ORG , the fact that the new provisions departed from “ tradition ” did not upset the balance and dynamics of a trial that , on the contrary , remained substantively unchanged .

For the same reasons , ORG found that the system introduced by PERSON no . CARDINAL of DATE could not be deemed to be contrary to LAW , a provision which required , among other things , compliance with the “ reasonable time ” requirement , in particular for accused persons in detention .

Articles DATE and CARDINAL of LAW to LAW provide :

“ CARDINAL . If a person is in CARDINAL ORG 's territory and has to be heard as a witness or expert by the judicial authorities of another ORG , the latter may , where it is not desirable or possible for the person to be heard to appear in its territory in person , request that the hearing take place by videoconference , as provided for in DATE .

“ CARDINAL . If a person is in CARDINAL ORG 's territory and has to be heard as a witness or expert by judicial authorities of another ORG , the latter may , where its national law so provides , request the assistance of the former ORG to enable the hearing to take place by telephone conference , as provided for in DATE .

Articles DATE and CARDINAL of ORG between the Member States of ORG , signed in GPE on DATE , provide :

“ CARDINAL . If a person is in CARDINAL Member ORG 's territory and has to be heard as a witness or expert by the judicial authorities of another Member ORG , the latter may , where it is not desirable or possible for the person to be heard to appear in its territory in person , request that the hearing take place by videoconference , as provided for in paragraphs CARDINAL to CARDINAL .

“ CARDINAL . If a person is in CARDINAL Member ORG 's territory and has to be heard as a witness or expert by the judicial authorities of another Member ORG , the latter may , where its national law so provides , request assistance of the former Member ORG to enable the hearing to take place by telephone conference , as provided for in DATE .

In its ORG of DATE on the protection of witnesses in the fight against international organised crime , ORG called on Member States to guarantee proper protection of witnesses . To that end it indicated , among other things , that “ one of the forms of protection to be envisaged is the possibility of giving evidence in a place other than that in which the person being prosecuted is situated through the use , if necessary , of audiovisual methods , subject to observance of the adversary principle as interpreted in the case - law of ORG . ORG went on to state that :

“ ... In order to facilitate the use of audiovisual methods , the following points , in particular , should be taken into consideration :

NORP In principle , it should be envisaged that the hearing may be conducted under the legal and practical conditions of the requesting State only .

NORP If the legislation of either State allows for the witness to be assisted by an adviser during the hearing , it should be possible for such assistance to be arranged in the territory of the State in which the witness is situated ;

Translation costs and the cost of using audiovisual methods should be borne by the requesting ORG , unless otherwise arranged with the ORG to which the request is addressed . ”


The applicant , PERSON , is an NORP national , who was born in GPE in DATE , and is currently in GPE . She is represented before the ORG by PERSON , a lawyer practising in GPE .

The respondent Government are represented by their Agent Mr C. H. Ehrenkrona of ORG .

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

On DATE the applicant and her son A. ( born in DATE ) arrived in GPE . On DATE they applied to ORG ( Migrationsverket ) for asylum and residence permits and , on DATE , an initial interview was held with them . The applicant stated that her husband and an adult daughter remained in GPE where the family had always lived . She and A. had fled from GPE because A. would be called to do his military service when he reached DATE . There was a risk that he could be stationed at the border with GPE which would expose him to great danger . They further claimed that they had left GPE with the help of smugglers to whom the applicant had given her passport , in which A. was also registered . Thus , she could only show the NORP migration authorities a copy of her NORP identification certificate ( shenasnameh ) . However , neither the applicant nor A. , nor any other member of their family , had ever been arrested or otherwise persecuted by the NORP authorities .

At a second interview , held on DATE , the applicant and PERSON added to their earlier statements that A. and a friend had once , in the school yard , glanced at The Satanic Verses by PERSON which another student had brought with him to school . The incident had been reported to the headmaster of the school who had beaten PERSON and then continued to harass him . Because of this , the applicant and her husband had tried in vain to get PERSON transferred to another school . Moreover , the applicant pointed out that , since PERSON was a minor , the fact that she had helped and accompanied him would cause her problems if she returned to GPE .

On DATE ORG rejected the application for asylum and residence permits . It first found that the applicant and PERSON had not been persecuted by the NORP authorities and thus could not be considered as refugees or granted asylum . It then noted that the son was obliged to do his military service once he reached DATE , but that this was not a reason for granting him a residence permit on humanitarian grounds . Moreover , the claim that he had had a conflict with his headmaster did not alter this conclusion . Thus , ORG found no reason for A. and the applicant to be allowed to stay in GPE on humanitarian grounds .

The applicant and PERSON appealed against the decision to ORG ( Utlänningsnämnden ) , maintaining their claims and adding that the applicant and her husband were in the process of divorcing . Moreover , they alleged that ORG had , on several occasions , been raped and abused by his headmaster in GPE , who had also threatened him . A. had only told his mother about this in DATE after repeated attempts by the health care personnel to persuade him to tell her . Since homosexual acts were strictly forbidden in GPE , he strongly feared that he would be severely punished if he were forced to return to his home country . As a result of his traumas , A. suffered from a serious depression and there was a real risk that he would try to commit suicide if he was deported . Lastly , the applicant was also suffering from the uncertain situation .

On DATE ORG rejected the appeal , sharing ORG reasoning and conclusion . As concerned the new information provided by ORG and the applicant , it noted that , if a minor were forced to perform sexual acts with a grown man , he would not be punished for it . However , the adult man could be sentenced to death . ORG therefore considered that A. could get help from the NORP authorities if he were threatened by the headmaster , as there were no indications that the authorities would not assist the family in such a situation . It further considered that the mental health problems of the applicant and PERSON were not of such a serious nature that they could be granted residence permits on humanitarian grounds .

On DATE ORG decided that the applicant and A. should be kept under supervision due to the risk that they would go into hiding to avoid deportation . Thus , they were ordered to report to ORG CARDINAL times a week .

However , on DATE , ORG decided that the applicant and A. should be taken into custody pending the enforcement of the deportation to GPE , and the decision was enforced in respect of the applicant DATE . The decision was due to the fact that A. had gone into hiding and could not be found , and there was a real risk that the applicant would do the same . Moreover , on DATE , ORG handed over the responsibility for the enforcement of the deportation of the applicant to the police authority as she had declared that she would not leave GPE voluntarily .

On DATE the applicant and A. lodged a new application for asylum and residence permits with ORG . They invoked medical certificates stating that PERSON was in poor mental health , suffering from post - traumatic stress disorder and depression , and that the applicant was also depressed and very afraid . Moreover , the applicant stated that her husband in GPE had repeatedly called and threatened to kill her if she returned to GPE and that the NORP authorities neither could nor would protect her . She claimed that her husband had divorced her and had threatened to kill her if she returned because he accused her of having committed adultery in GPE , having abandoned her home in GPE and having unlawfully kept his son from him . Her brother - in - law , with whom she and A. had stayed after their arrival in GPE , had also turned against her after her husband ’s accusations , and she had been forced to find another place to stay . The applicant explained the late submission of the new circumstances and evidence by the fact that she had been in despair over her son ’s situation and that she herself had suffered from serious mental problems . Furthermore , she had not realised the importance of telling the NORP authorities about her husband ’s threats until she had been detained .

The applicant and PERSON also requested that ORG stay the enforcement of their deportation , but this request was rejected on DATE .

On DATE the applicant and ORG renewed their request for a stay of the enforcement of the deportation . They submitted new evidence in the form of copies of documents in NORP which the applicant had received from her sister in GPE . Apparently , the applicant ’s husband had given the copies to her father but , due to her father ’s advanced age , she had not been able to find out when or how her husband had transmitted the copies . Moreover , since her husband had the originals , she would not be able to get hold of them . According to the applicant the documents were copies of :

A report to a first instant court by the applicant ’s husband accusing her of adultery , abandoning her home and family , of unlawfully withholding her son from his father and of illegally leaving the country . This “ summons application ” is dated DATE .

A “ formal notice ” whereby the applicant ’s husband warns her for the last time to come home and repent for what she has done or the court proceedings will go ahead ( dated DATE ) .

CARDINAL summons to appear before the court to defend herself against the above charges ( dated DATE , DATE and DATE , respectively ) . The last of these CARDINAL warnings states that if the applicant does not present herself before the court , it will take an appropriate decision and the case might be examined on the material before it .

A private letter from her husband ( undated ) stating that he has reported her for adultery and other offences to the authorities and that he will demand the harshest punishment possible for her .

Before ORG , the applicant claimed that , due to the above charges , she would face a real risk of being either sentenced to death or punished in an inhuman manner . Moreover , there was a real risk that she would be tortured during interrogation in order to force her to confess to the alleged crimes .

On DATE , DATE , ORG rejected the renewed request to stay the deportation .

On DATE the applicant was taken by the police to FAC , GPE , to be deported . However , once there , the police decided not to go through with the measure as they considered that the applicant was not in a state to be transported as she was acting in a very violent manner , refusing to get on the plane . The police also decided that the applicant should no longer be kept in custody , but that she should be placed under an obligation to report to ORG CARDINAL times a week .

Also on DATE , following the ORG ’s indication under LAW , ORG decided to stay the deportation of the applicant until further notice . ORG decision is still in force .

On DATE ORG rejected the new application . It noted that the applicant had stated that her husband had started to threaten her DATE after her arrival in GPE , but that she had not mentioned it previously . ORG found this strange . Moreover , as the applicant had failed to give any reasonable explanation for this delay , it considered the statements questionable . It further observed that the applicant had only handed in fax copies of the documents invoked , not the originals , and DATE before the planned enforcement of the deportation . Thus , ORG considered that the copies had little value as evidence . Already against this background , it found it highly doubtful that the applicant had demonstrated that she was in need of protection in GPE .

In any event , it noted that the applicant had not claimed that her husband had any proof that she had been unfaithful but that , on the contrary , his suspicions were unfounded . Having regard to what was known about the evidence required in GPE to convict someone of adultery , ORG considered that the applicant had not shown that it was likely that her husband could prove his accusations of adultery , which were groundless , in a court hearing . Moreover , to the best of ORG knowledge , it was not a criminal offence for a married woman to leave GPE without her husband ’s permission although , normally , it was not possible . However , it could constitute a ground for divorce . In view of the above , ORG found that even if the applicant had left the country illegally and without her husband ’s permission , she had not shown that it was probable that she would risk being subjected to such serious difficulties from the NORP authorities , if returned , that she was in need of protection in GPE . The fax documents which had been invoked by the applicant did not change this assessment .

As concerned the applicant ’s claim that she would face problems because of the accusations of the unlawful removal of a child , ORG noted that the son had been DATE when they entered GPE and that he was now DATE . It further observed that , to its knowledge , a married woman who takes her child with her out of the country without the permission of the husband / father could not be convicted of abduction or kidnapping . In the event that someone were considered guilty of having wrongfully removed a child , no disproportionate sentence was known to have been imposed . Therefore , the applicant was not in need of protection on this ground either .

ORG , ORG considered that , in so far as the applicant alleged that her husband and his family would pose a threat to her upon return to GPE , it was for the NORP authorities to deal with the matter . It noted that so - called honour killings were not accepted by ORG and that the authorities should be able to help her and offer protection . It followed that she was not in need of protection in GPE on this ground either . ORG also rejected ORG ’s request for asylum and a residence permit and concluded that , making an overall assessment , the circumstances were not such that it would be contrary to humanitarian standards to deport them to their home country .

On DATE the ORG adjourned the case at the request of ORG following the enactment of an interim amendment to LAW , on the basis of which the applicant ’s case would be reviewed .

On DATE the Government informed the ORG that , on DATE , ORG had decided not to grant the applicant a residence permit in GPE on the basis of the interim amendment to LAW . ORG had concluded that the applicant could not be granted leave to stay on either medical or humanitarian grounds .

It appears that A. , in a separate decision by ORG , was granted a permanent residence permit in GPE .

In a letter of DATE , the applicant informed the ORG that she had requested ORG to reconsider its decision of DATE because of her continuously deteriorating mental health . However , the request had been rejected on DATE as ORG considered that it had already examined her health status and that the new information invoked did not alter its previous conclusions . The applicant then stated in her letter that , due to her very poor mental condition , deportation would cause her personal suffering beyond her ability to endure , for which reason it would be a violation of LAW to deport her .

The applicant has submitted CARDINAL medical certificates to the ORG dated DATE and DATE , respectively .

The first certificate was written by PERSON , specialist in psychiatry at ORG , and based on CARDINAL consultation lasting TIME . She first noted that the applicant had previously had contact with psychologists and doctors because of depression and that , during the examination , she was distraught and anxious and expressed suicidal thoughts and an extreme fear of returning to GPE . She was taking sleeping pills and antidepressants . PERSON concluded that the applicant suffered from a serious depression with anxiety symptoms , and that there was a real risk that she would try to commit suicide if she were to be deported .

The second certificate was written by PERSON , chief physician at the psychiatric clinic at ORG , who had examined the applicant on CARDINAL occasion in DATE , but had known her for DATE since she had treated A. at the clinic . According to this certificate , the applicant was very worried and afraid about her own situation but even more about how A. would recover and manage if she was deported from GPE and he was left alone . It was noted that she was traumatised by her experiences and the threats and abuses of which she had been , and continued to be , the victim . She was diagnosed as suffering from a serious mental illness in the form of a depression and an enduring crisis reaction with suicide plans . PERSON further stated that PERSON still had a great need for his mother and that , if she were deported , there was a real risk that A. might try to commit suicide . She concluded that the applicant was showing signs of pre - psychotic thinking and that she was very close to the limit of what she could bear .

The basic provisions , applied in the present case , concerning the right of aliens to enter and to remain in GPE were laid down in the CARDINAL LAW ( utlänningslagen , DATE hereinafter referred to as “ the DATE LAW ) . However , LAW was replaced , on DATE , by a new LAW ( Utlänningslag , DATE hereinafter referred to as “ the DATE LAW ) . Both the DATE and DATE Acts define the conditions under which an alien can be expelled from the country , as well as the procedures relating to the enforcement of such decisions .

LAW , LAW provided that an alien staying in GPE for DATE should have a residence permit . Such a permit could be issued , inter alia , to an alien who , for humanitarian reasons , should be allowed to settle in GPE ( LAW , LAW ) . For example , serious physical or mental illness could , in exceptional cases , constitute humanitarian reasons for the grant of a residence permit if it was a life - threatening illness for which no treatment could be provided in the alien ’s home country .

Further , according to LAW , an alien who was considered to be a refugee or otherwise in need of protection was , with certain exceptions , entitled to residence in GPE ( LAW , LAW ) . The term “ refugee ” referred to an alien who was outside the country of his nationality owing to a well - founded fear of being persecuted for reasons of race , nationality , membership of a particular social group , or religious or political opinion , and who was unable or , owing to such fear , unwilling to avail himself or herself of the protection of that country . This applied irrespective of whether the persecution was at the hands of the authorities of the country or if those authorities could not be expected to offer protection against persecution by private individuals ( LAW , LAW ) . By “ an alien otherwise in need of protection ” was meant , inter alia , a person who had left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW ) .

An alien who was to be refused entry or expelled , in accordance with a decision that had gained legal force , could be granted a residence permit if he or she filed a new application based on circumstances which had not previously been examined , and if the alien was entitled to a residence permit under LAW , LAW , or it would be contrary to the requirements of humanity to enforce such a decision ( LAW , LAW b ) . Regard could also be had to serious illness under this provision . Such new applications were filed with and examined by ORG ( Chapter CARDINAL , LAW ) .

As regards the enforcement of a refusal of entry or expulsion , account had to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien could not be sent to a country where there were reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW ) .

In essence , LAW did not substantially amend the above provisions , except for the following :

By LAW , ORG has been replaced by ORG and ORG ( LAW , LAW ) . Moreover , it is no longer possible to renew applications but , instead , ORG shall , on its own initiative , determine whether there is any impediment to the deportation or expulsion ( LAW , LAW ) .

Furthermore , DATE and DATE , certain interim amendments to the DATE Act were in force , according to which ORG , upon application by an alien or on its own initiative , could re - determine final decisions already taken by ORG . The object of these temporary amendments was to grant residence permits to aliens who , inter alia , had been in GPE for a very long time or where there existed “ urgent humanitarian interests ” ( humanitärt angeläget ) . Special consideration was given to the situation of children .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . The respondent Government were represented by their Agent , PERSON , succeeded by PERSON in that function .

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

The applicant and his wife are retired and receive an old age pension CARDINAL NORP korunas ( SKK ) per month , which forms their main source of income . On DATE the applicant acquired a trade licence for inter alia operating a merrygoround for children . The licence became operative on DATE . Since then , the applicant has operated a merry - go - round in DATE , that is DATE . According to the applicant , he earns about SKK CARDINAL per month of operation .

A holder of a trade license is considered as a selfemployed person for the purposes of ORG no . CARDINAL Coll . ( PERSON o NORP poisťovni - “ the LAW ” ) and is obliged to register with the health insurance fund and the pension fund , and to pay DATE contributions to both funds .

Under Section CARDINAL § CARDINAL ( e ) of LAW as in force until DATE , holders of a trade licence who where receiving an old age pension were exempted from the obligation to contribute to the pension fund .

As the applicant was receiving an oldage pension , he was exempted from the obligation to pay premiums to the pension fund . He did , however , remain obliged to register with the health insurance fund and to pay the DATE contributions to this fund , none of which he in fact did . The applicant did declare his income earned from the exploitation of the merry - go - round to the DATE authorities . According to his income tax declarations , this taxable income was SKK DATE , SKK CARDINAL in DATE and SKK CARDINAL,CARDINAL in DATE .

On DATE an amendment no . CARDINAL/CARDINAL Coll . of the CARDINAL/CARDINAL Act entered into force . It repealed the exemption set forth in Section CARDINAL § CARDINAL ( e ) of the CARDINAL/CARDINAL Act . Consequently , in addition to his obligation to pay contributions to the health insurance fund , the applicant became liable to contribute to the pension fund as well .

In DATE the applicant registered with the health insurance fund and with the pension fund at ORG ( Sociálna poisťovňa ) . He indicated DATE as the starting date of his participation in the social security scheme on grounds of his selfemployment activity .

On DATE the applicant complained to ORG ( Ústavný súd ) that his DATE income from exploiting the merrygoround amounted to ORG whilst his mandatory contributions payable to ORG were calculated on the minimum assessment basis of SKK CARDINAL thus amounting to SKK CARDINAL,CARDINAL ( i.e. PERCENT for the health insurance scheme plus PERCENT for the pension scheme ) DATE . The applicant alleged that the relevant provisions of ORG violated his property rights .

The applicant complained numerous times , including by letters of CARDINAL April , CARDINAL DATE , CARDINAL DATE and DATE , to various bodies of ORG that the level of contributions that he was required to pay was excessive in relation to his actual income and that he was required to pay contributions even for DATE in which he did not operate his business .

On various occasions in DATE and DATE , including in a letter of CARDINAL DATE and during a meeting held on CARDINAL May , ORG informed the applicant of the legal rules that applied to his selfemployment activity . It informed him in particular that since DATE , when he had started the operation of the merrygoround , he had been obliged to contribute to the health insurance fund in an amount equivalent to PERCENT of the above minimum assessment basis . It further informed the applicant that , as from DATE , he had further become obliged to contribute to the pension fund by CARDINAL % of that basis . ORG asked the applicant to pay the contributions due , including the arrears .

On DATE ORG rejected the applicant ’s complaint on the ground that the applicant had no standing to bring proceedings challenging the constitutionality of legislation .

By letters of DATE and DATE ORG reminded the applicant of his obligation to pay the outstanding contributions .

On DATE the applicant and ORG agreed on a schedule for payment of the outstanding contributions .

Under LAW CARDINAL and QUANTITY , selfemployed persons are liable to pay contributions to the health insurance fund and the pension fund .

Section CARDINAL § CARDINAL ( e ) of the LAW , as in force until DATE , provided that selfemployed persons in receipt of an oldage pension were exempted from the obligation to contribute to the pension fund . This exemption was abolished on DATE when the amendment no . CARDINAL/CARDINAL Coll . entered into force .

According to LAW the contributions are a percentage of the “ assessment basis ” ( vymeriavací základ ) . The percentages applicable to selfemployed persons are PERCENT for the health insurance fund and PERCENT for the pension fund ( LAW of the LAW ) .

The “ assessment basis ” is PERCENT of the average DATE taxable income gained by a self - employed person during DATE ( Section CARDINAL § CARDINAL in conjunction with Section CARDINAL § CARDINAL of the Act ) . However , regardless of income actually earned during DATE , a personal “ assessment basis ” for a selfemployed person can not be lower than the statutory defined “ minimum assessment basis ” , that is SKK CARDINAL until DATE , SKK CARDINAL from DATE to CARDINAL DATE and SKK CARDINAL since DATE .

Pursuant to LAW , selfemployed persons are inter alia obliged to register themselves with the local branch of ORG within DATE from the date on which their licence for their selfemployment activity takes effect .


Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in PERSON ( ORG ) .

On DATE the applicant brought proceedings in the Benevento Magistrate 's Court , sitting as an employment tribunal , seeking acknowledgement of her right to be reregistered on the lists of farmers and of her status as farm labourer . That status had been contested by ORG ( ORG – “ the GPE ” ) . Her right to a maternity allowance depended on the type of employment contract she had .

On DATE the magistrate 's court set the case down for an initial hearing on DATE . On DATE the magistrate 's court requested documents relating to the records drawn up by the labour inspector and ordered them to be filed at a hearing on DATE . On DATE , at the request of counsel for the defendant , the magistrate 's court declared the proceedings interrupted on the ground that the ORG had been abolished .

On DATE the applicant lodged an application with the court registry for the proceedings to be resumed against the social - security department ( ORG DATE ' the I.N.P.S. ” ) . On DATE the magistrate 's court set the case down for hearing on DATE . However , that hearing was adjourned by the court of its own motion to CARDINAL DATE . The next QUANTITY hearings , held DATE and DATE , were devoted to hearing evidence from witnesses . On DATE the parties made their final submissions .

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

On DATE the applicant lodged an appeal with ORG . On DATE the President of ORG set the appeal down for hearing on DATE . On DATE ORG reserved judgment . According to information provided by the applicant on DATE , the proceedings were still pending on that date .

On DATE the applicant lodged an appeal with ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto ” Act , complaining of the excessive length of the above - described proceedings . She asked the court to rule that there had been a breach of LAW and to order ORG to pay compensation for the non - pecuniary damage sustained .

In a decision of DATE , the text of which was deposited with the registry on DATE , ORG found that a reasonable time had been exceeded . It awarded the applicant DATE ( ORG ) , on an equitable basis , in compensation for non - pecuniary damage and ORG CARDINAL for costs and expenses . That decision became final by DATE at the latest and was enforced by the authorities DATE and DATE .

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

In the same letter the applicant also informed the ORG that she did not intend to appeal to ORG because an appeal to that court could only be on points of law .


The applicants , Mr PERSON , PERSON and PERSON Bland are NORP nationals who were born in DATE and DATE respectively . The first CARDINAL applicants live in GPE and the third applicant lives in GPE , GPE . They are represented before the Court by Dr PERSON and Dr PERSON , lawyers practising in GPE , GPE .

The first applicant is a former leader of ORG and a former Prime Minister of GPE , and the second and third applicants are his children . They are joint owners of a residence in LOC in an undeveloped coastal area of GPE .

In DATE the nationalist government , ordered the construction of a new power station . Consequently , it selected and legally expropriated a site in PERSON , QUANTITY from the applicants ' property .

At the relevant time , the first applicant objected to the proposed power station on the ground that it would pollute his property and render it unusable . Unsuccessfully , he submitted to the authorities proposals for a number of alternative locations and suggestions as to how the power station could be constructed in order to minimise the damage to his property .

In CARDINAL/CARDINAL the power station began operating . Due to the resulting noise and pollution the applicants had to leave their residence and move to their other house in GPE .

The abandonment of the property meant that it became subject to a number of break - ins during which movables and furniture were stolen . Since then the first applicant has been unsuccessfully endeavouring to recover the possession of CARDINAL other properties , situated in GPE , which he had intended for storage purposes , and which had been in his possession for DATE but to which road access had been denied .

On DATE the first applicant and his wife instituted proceedings before ORG ( FAC ) in its constitutional jurisdiction , alleging a violation of LAW No . CARDINAL to the Convention , in respect of their property in LOC .

On DATE ORG found a violation of LAW to the LAW . Despite the fact that the property had not been formally expropriated and that therefore the claimants had not received compensation , they had been deprived of the enjoyment of their property to the extent that they could not use it as a residence due to the noise and toxic emissions , and there had therefore been a de facto expropriation . Moreover , the property had suffered a dramatic depreciation in value . The court considered that although the ORG had had the right to decide where and when to build the power station , which was undoubtedly in the public interest , it was essential that a fair balance be struck between the general interests of the community and individual rights and this could not be achieved if the claimants were made to suffer an excessive burden . ORG deferred the proceedings for further submissions in respect of an adequate remedy .

Both parties appealed .

On DATE ORG upheld the first - instance judgment . However , it did not determine the amount of compensation . It remitted the case to ORG , with a view to reaching a friendly settlement .

A number of meetings were held over DATE but no agreement was reached between the parties , in particular because the planning authority failed to approve building permits for any of the sites which were suggested as replacements for the expropriated property . Numerous hearings took place , evidence was heard , various pleadings were made by the first applicant 's lawyers , who were replaced regularly , and various court - appointed technical architects , including additional architects as requested by the first applicant , submitted their evaluations . The parties drew up CARDINAL signed private deeds of agreement .

On DATE , ORG declared the deeds of agreement between the parties null and void as they had not been done by means of a public deed as required by law and it went on to determine the issue of compensation . It emphasised , that his status as a former politician should neither create an advantage for nor prejudice the first applicant , whose rights had to be respected . It awarded him MONEY ( ORG – QUANTITY ( ORG ) ) , having taken into consideration the fact that the applicant and his wife had been suffering a continuous violation since DATE ( when the power station was built ) , the inconvenience caused to them , the fact that the first applicant , in using the property in the exercise of his duties as Prime Minister , had rendered it of historical interest , the agreements which the parties had attempted to reach and the fact that the property would remain in the applicant and his wife 's possession even though it was unfit for habitation and that its value had greatly diminished . However , it refused to consider the damage caused to movables kept in the property and other damage suffered by them ( see Part CARDINAL below ) as these were irrelevant , since this was a case concerning adequate compensation and not damages . It further rejected as unsubstantiated the first applicant 's submission that he had been offered a sum of over FAC ( CARDINAL ORG ) in compensation , an offer he had refused . It also held that the payments which had already been made to him in DATE and DATE amounting to ORG CARDINAL ( approximately ORG CARDINAL,CARDINAL ) should be deducted from the sum awarded .

Both parties appealed . The first applicant 's children ( the second and third applicants ) were granted leave to pursue the application in the first applicant 's late wife 's stead . In particular the applicants claimed that the remedy granted had not been adequate and that the sum awarded was too low . Particular reference was made to the first applicant 's prominent public position , the continuous breach they were suffering , the inconveniences suffered in relation to their other properties , the estimates of the property 's value , the failure to provide an alternative property , the fact that the amounts already paid had to be deducted , the offer of FAC ( CARDINAL ORG ) which they had received and that allegedly had not been taken into consideration by the court , and the length of the proceedings .

They further alleged that during the appeal proceedings it had transpired that in similar proceedings , namely , PERSON vs. Commissioner of GPE , the valuation provided by the court - appointed architects was much in excess of that provided in the applicants ' case . However , it does not appear from ORG judgment that this argument was raised before it .

On DATE ORG upheld the reasons given by the first - instance court and the consequent award of compensation . It affirmed that the applicants had the right to be reimbursed the value of the residence which had been rendered uninhabitable . It re - examined the estimates of the value of the property in DATE before the power station was constructed , provided by the court appointed experts and the additional experts , amounting to ORG CARDINAL,CARDINAL and ORG CARDINAL respectively ( approximately ORG CARDINAL,CARDINAL and LAW ) and the estimated value of the property in DATE had the power station not been constructed , which amounted to ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . It took account of the fact that the applicants had had to bear various inconveniences and the delay in granting the remedy , notwithstanding that part of the delay was due to the applicants ' intermittent filing of irrelevant notes and depositions . It further considered that DATE the sum of ORG CARDINAL ( approximately ORG CARDINAL,CARDINAL ) had already been paid to the applicants , the first payment amounting to ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) in DATE . All this could be considered together only by determining a sum arbitrio boni viri which the first court had correctly done .

By DATE , the first applicant , who was living in his other house in GPE , was contacted by ORG ( CARDINAL of the parties to the above - mentioned proceedings ) and ORG , which have a joint debt collecting procedure , for payment of outstanding water and electricity bills relating to the house in GPE , amounting to CARDINAL NORP Liras .

Given that the applicants had already been declared to be owed compensation from ORG and that his utilities were being provided intermittently and suffered from numerous faults , the first applicant refused to pay the bills . As a result , on DATE the utilities supply was cut off and was restored CARDINAL parties paid the bill , against the first applicant 's wishes .

When the water supply was restored , the pressure was initially too high and caused the pipes to burst , effectively depriving the first applicant of access to clean water , thus rendering his property in GPE uninhabitable too .

With respect to the property in LOC , apart from noise and smoke emissions , further damage was caused by flooding , affecting the roofs and the electrical installations , and causing an infestation of rats . Historical documents and other possessions were also damaged and since no public funds were available to cover the necessary repairs , the insurance company which would not pay damages unless such works were done , threatened to withdraw insurance cover completely .

On DATE the applicants instituted proceedings before ORG ( FAC ) in its constitutional and “ conventional ” jurisdiction against the respondents , inter alia , ORG and ORG regarding damage to their PERSON property . They invoked ORG , CARDINAL , DATE and CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL , and requested the court to provide them with an adequate remedy .

On DATE ORG rejected the applicants ' claims , in part because the respondent had been incorrectly cited and for the rest it declined from exercising its constitutional jurisdiction on the ground that the applicants had not made use of the ordinary remedies available to them .

On DATE the applicants appealed . By a judgment of DATE ORG upheld the first - instance judgment .

The applicants make reference to a set of legal proceedings in relation to the reinstatement of the PERSON property , but it is not clear whether these are in fact the same proceedings as are mentioned above or new proceedings and if they are new proceedings whether they have terminated .

According to the applicants ' submissions of DATE , both their houses remain uninhabitable . Moreover , according to their communication , dated DATE , the first applicant has ongoing problems with his telephone line and does not receive regular post , and as a result , his PERSON telephone service - which he alleges is being tampered with - his correspondence with banks and his receipt of payments due and timely court notifications are adversely affected . Lastly , they allege that the garden of the PERSON property has been invaded by wild cats and that the local council has not taken any steps to resolve this problem .

Under NORP law , a person alleging a breach of human rights as guaranteed by LAW or LAW may , without prejudice to any other remedy with respect to the same matter that is lawfully available , apply to ORG ( FAC ) for redress . The latter 's practice and procedures are governed by ORG .

In respect of an action for damages in tort or quasi - tort , section CARDINAL of LAW , LAW of LAW , regarding the measure of damages , reads as follows :

“ ( CARDINAL ) The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party , in the expenses which the latter may have been compelled to incur in consequence of the damage , in the loss of actual wages or other earnings , and in the loss of future earnings arising from any permanent incapacity , total or partial , which the act may have caused . ”

Mr B. owned property ( a residential home and adjacent land ) in PERSON which in DATE had been expropriated for the construction of the said power station . He had been offered ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) in compensation , which he contested as being inadequate . In the meantime building work had begun on the land contiguous to his property and as a result he suffered damage over DATE . Pending proceedings regarding the determination of adequate compensation , he was informed that his property was no longer required by the authorities and was asked to sign a disclaimer of responsibility towards them in respect of it , which he refused to sign .

On an unspecified date PERSON instituted proceedings before ORG ( FAC ) in its ordinary jurisdiction . He claimed that he had sustained damage both to his quality of life and to the value of his property , which remained in his possession , and that the authorities were liable for damages , this being without prejudice to any other remedy available to him for the determination of a violation of his fundamental rights under LAW .

On DATE ORG found in favour of PERSON and concluded that the authorities ' actions had been abusive and illegal and in violation of his rights as property owner . Consequently , it held the authorities liable for damages and deferred the proceedings for the determination of compensation .

On DATE ORG held that in accordance with section CARDINAL of LAW , damage had to be assessed according to the estimated value of the property had the power station not been built which corresponded to ORG ( approximately ORG CARDINAL,CARDINAL,CARDINAL ) , and its actual value , namely FAC ( approximately ORG CARDINAL,CARDINAL ) . Consequently it awarded Mr B. MLT MONEY ( approximately ORG CARDINAL ) in damages .

According to ORG website , in DATE an appeal was lodged and the case is currently pending before ORG , superior jurisdiction ) .


Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant was born in DATE and lives in ORG . At the relevant time he was attached , as a soldier by profession , to ORG in Liptovský Mikuláš .

On DATE the dean of ORG at the above - mentioned military academy issued a disciplinary order with reference to sections CARDINAL ) and CARDINAL ) of the Military Service Act CARDINAL . In it the applicant was found guilty of a disciplinary offence in that he had grossly offended another person in the context of administrative proceedings before ORG in PERSON . The decision stated that his action constituted a minor offence under section CARDINAL(CARDINAL)(d ) of LAW DATE .

NORP The decision stated that the case related to a disagreement between the applicant and his neighbours and that similar problems had occurred previously . With reference to section CARDINAL(c ) of the Military Service Act CARDINAL , the applicant was fined CARDINAL NORP korunas ( SKK ) , which was then the equivalent of MONEY ( ORG ) . That sanction was considered appropriate in view of the danger for society of the applicant 's action . With reference to ORG , the applicant was ordered to reimburse the costs of the proceedings .

The applicant appealed , arguing that the decision in question was premature and arbitrary as it had been taken in disregard of the relevant facts .

On DATE the rector of the military academy dismissed the appeal and upheld the decision in issue . The rector 's decision stated that it was final and that it could not be challenged by means of an ordinary remedy .

On DATE the applicant lodged a complaint with ORG . He alleged that the decisions given by the military authorities were arbitrary and that his right to judicial protection had been violated as those decisions could not be reviewed by the courts . He relied , inter alia , on LAW .

ORG rejected the complaint for lack of jurisdiction on DATE . It referred to LAW and to its decision II . ÚS CARDINAL/CARDINAL and held that administrative decisions which had a bearing on fundamental rights and freedoms could not be excluded from the jurisdiction of the courts . The decision stated that the applicant alleged a violation of his right to judicial protection without having sought protection of his specific rights before an ordinary court . Had the applicant brought an action in an ordinary court , the latter would have been obliged to comply with LAW when dealing with it .

Article CARDINAL § CARDINAL provides that any person whose rights have been affected as a result of a decision given by an administrative authority can have the lawfulness of such a decision determined by a court unless the law provides otherwise . However , the review of decisions concerning fundamental rights and freedoms can not be excluded from the jurisdiction of the courts .

Article CARDINAL § CARDINAL provides that judges are independent and bound only by law . Under paragraph CARDINAL of Article CARDINAL , judges are also bound by international instruments where the LAW or the law so provides .

In judgment ORG CARDINAL/CARDINAL of DATE ORG held that , in the event of doubt about the power of an ordinary court to review administrative decisions , LAW must be applied , pursuant to which the interpretation and application of laws must be in accordance with LAW . It must in particular be examined whether the contested administrative decision concerns a person 's fundamental rights and freedoms as such decisions can not be excluded from the jurisdiction of the courts .

In that particular case ORG found that an ordinary court 's decision to discontinue proceedings , which resulted from an erroneous legal assessment of its power to deal with an action against an administrative decision , amounted to a breach of the right to judicial protection as guaranteed by LAW .

NORP In decision II . ÚS CARDINAL/CARDINAL of CARDINAL June CARDINAL ORG dismissed a complaint in which the present applicant complained about the ordinary courts ' refusal to review his superiors ' decision to fine him for a minor offence under section CARDINAL(CARDINAL)(d ) of LAW DATE . ORG held that , since the ordinary courts ' refusal to review the decisions on the fine had been taken in accordance with the law in force at the relevant time , they did not interfere with the applicant 's constitutional right to judicial protection ( for further details see GPE v. GPE , no . CARDINAL , § § DATE , DATE ) .

In judgment LOC . ÚS CARDINAL/CARDINAL of DATE ORG held that under LAW , the public authorities were obliged to apply international treaties where such treaties guaranteed a broader scope of fundamental rights and freedoms than national laws .

In decision ORG CARDINAL/CARDINAL of CARDINAL DATE ORG pointed out that the ordinary courts were primarily responsible for respecting the fundamental rights and freedoms which the LAW and international treaties guaranteed to individuals .

In judgment II . ÚS CARDINAL of DATE ORG found that the ordinary courts had violated the plaintiff 's rights under LAW . The plaintiff complained that the ordinary courts had discontinued proceedings concerning his action challenging a decision of ORG by which he had been dismissed as a professional soldier . The courts based their decision on the fact that review of the decision in issue was excluded from their jurisdiction LAW CARDINAL § CARDINAL(d ) of LAW . ORG held that LAW was complied with only where a court examined whether an administrative decision contested by the plaintiff had a bearing on any of his or her fundamental rights and freedoms , regardless of whether or not the relevant law permitted a judicial review of such decisions . In the case under consideration the ordinary courts had discontinued the proceedings on the ground that the law excluded judicial review of the relevant decision , without considering whether or not that decision concerned the plaintiff 's fundamental rights and freedoms . In doing so , the ordinary courts concerned had violated LAW .

Decision II . ÚS CARDINAL/CARDINAL was included in LAW which was published on an unspecified date in DATE .

Section CARDINAL(CARDINAL)(a ) provides that , where a person falling under military disciplinary rules acts in a manner which fulfils the constituent elements of a minor offence , such action is to be examined under a special law .

Section DATE ( as in force at the relevant time ) governs minor offences against civic propriety . Paragraph CARDINAL ) provides that a minor offence is committed by a person who deliberately offends against civic propriety by threatening bodily harm , by causing minor bodily injury , by unjustifiably accusing another person of a minor offence , by causing annoyance or by other rude behaviour . Under section CARDINAL ) , such a minor offence is punishable with a maximum fine of SKK CARDINAL .

Section CARDINAL(CARDINAL ) provides that citizens who have been found guilty of a minor offence are liable to reimburse the costs of the proceedings to the ORG . The details are to be fixed by ORG .

Section DATE lists the principal duties of a soldier . Subsection CARDINAL(j ) obliges soldiers to abstain from behaviour which may harm the authority of the armed forces or threaten citizens ' trust in them .

Section CARDINAL(CARDINAL ) defines a disciplinary offence as a wilful breach of a soldier 's principal duties unless it constitutes a criminal offence or a minor offence .

Section CARDINAL(CARDINAL ) provides that where a soldier 's action is qualified as a minor offence under LAW DATE , it is to be examined as a disciplinary offence within the meaning of LAW DATE .

Section CARDINAL(CARDINAL ) provides that a disciplinary punishment may be imposed on a soldier who has committed a disciplinary offence . Such punishments may be imposed under LAW DATE or pursuant to a special law in cases falling under section CARDINAL ) . Among such special laws , reference is made to LAW DATE .

Section CARDINAL lists disciplinary punishments which may be imposed on professional soldiers . They include ( a ) a reprimand ; ( b ) a strict reprimand ; ( c ) a fine ; ( d ) a prohibition on performing a certain activity ; ( e ) confiscation of a particular item ; and ( f ) a protective measure .

At the relevant time section CARDINAL(CARDINAL ) provided that final decisions on disciplinary matters were not reviewable by courts , with the exception of cases where the sanction imposed involved deprivation of liberty of the person concerned .

Under Section CARDINAL(CARDINAL ) , as amended with effect from DATE , final decisions imposing a fine are reviewable by courts .

Section CARDINAL(CARDINAL ) provides that the military authorities implement the law by issuing personal orders , disciplinary orders , military orders and decisions on compensation for damage .

Article CARDINAL § CARDINAL(f ) , as in force at the relevant time , excluded judicial review of administrative decisions imposing sanctions on members of the armed forces unless such sanctions restrained the latter 's personal liberty or resulted in the termination of their service .

That provision was repealed with effect from DATE .

The Ministry of the ORG 's ORG governs sums which are to be charged in respect of costs of proceedings under LAW DATE .

Under LAW ) , as in force at the relevant time , the lump sum which citizens are obliged to pay within the meaning of section CARDINAL(CARDINAL ) of LAW DATE corresponds to SKK CARDINAL .