Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-4;Violation of Art. 5-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni

The applicant was born in DATE and lives in GPE , GPE . He is currently residing in GPE .

NORP In DATE , when the applicant was living in GPE , a district court in GPE convicted him of being a member of the NORP religious organisation PERSON , prohibited in GPE . The court ordered him to pay a fine in an amount equal to CARDINAL times the minimum DATE wage .

The applicant paid the fine and continued to reside in GPE . However , according to him , he felt constant pressure from the lawenforcement agencies , which required him to report on all his actions and movements and , in case of delay or failure on his part , threatened to arrest his elder son . So as not to put his family in danger , on DATE the applicant left GPE for GPE .

In the meantime ORG of GPE quashed the decision of DATE on the ground that the sentence was too mild and remitted the case for fresh examination .

On DATE the Sobir Rakhimovskiy District Court of GPE ordered the applicant to be remanded in custody . On that basis a cross - border search warrant for the applicant was issued .

On DATE the applicant was arrested in GPE on the basis of the cross - border search warrant .

On an unspecified date ORG of the Interior sent ORG of the Interior of GPE a request to keep the applicant in custody and enclosed a copy of ORG decision of DATE .

On DATE the PERSON Prosecutor 's Office in GPE issued a decision on application of a preventive measure and ordered that the applicant be placed in custody on the basis of the NORP court 's decision of DATE . LAW was cited as a legal source for application of the preventive measure . The decision indicated that the applicant should remain in custody until ORG decided on his extradition ; the term of the detention was not specified . It was not mentioned whether the decision could be appealed against . On DATE the applicant was placed in remand prison ORG , GPE .

On DATE the applicant applied to ORG . He asked it to refuse the request of ORG for his extradition and to release him from custody since he was charged with a crime that did not constitute a criminal offence under NORP law .

On DATE ORG requested ORG to extradite the applicant .

On DATE ORG informed the applicant that no final decision had been taken in respect of the extradition and there were therefore no grounds to change the preventive measure applied in his case .

On DATE the PERSON Prosecutor 's Office issued a new decision to remand the applicant in custody pursuant to LAW ORG and LAW . The decision indicated that the applicant should remain in custody until ORG decided on his extradition ; the term of the detention was not specified . It was not mentioned whether the decision could be appealed against . Neither the applicant nor his counsel was provided with a copy of the decision . The applicant was not notified of it until DATE , in the remand prison , as confirmed by his signature on a copy of the decision .

On DATE ORG dismissed the request of ORG for the applicant 's extradition because the acts with which the applicant had been charged did not constitute a crime under NORP law .

On DATE the PERSON Prosecutor 's Office received notification from ORG that the NORP authorities ' request for the applicant 's extradition had been dismissed .

On DATE the PERSON Prosecutor 's Office issued a decision authorising the applicant 's release . The applicant was released from the remand prison .

On DATE , immediately after his release , the applicant was conveyed by policemen to ORG . At the hearing held on DATE , the court found the applicant guilty of an administrative offence : breach by a foreigner of the rules on entry and stay in the territory of GPE . The court imposed a fine of MONEY on the applicant and ordered his expulsion . The court also ordered that pending his expulsion the applicant should be held in the centre for detention of foreign nationals of ORG . The applicant appealed .

On DATE the ORG indicated to the respondent Government that the applicant should not be expelled to GPE until further notice .

On DATE ORG quashed the decision of ORG and the applicant was released .

On DATE policemen stopped the applicant in the GPE underground in order to check his papers . It appeared that the applicant was still on the cross - border wanted list , and he was taken to a police station for a decision concerning his arrest . After his counsel arrived and clarified the applicant 's situation , he was released . The applicant then applied to ORG to be removed from the list .

On DATE ORG ordered ORG to remove the applicant 's name from the crossborder wanted list owing to the refusal to extradite him .

On DATE the applicant applied to ORG of ORG for asylum .

On DATE officials of ORG of ORG questioned the applicant in the presence of his counsel .

On DATE ORG of ORG dismissed the applicant 's application on the ground that he did not meet the requirements provided for in domestic law for granting asylum . The applicant lodged a complaint with a court .

On DATE the ORG of GPE dismissed the applicant 's complaint . The applicant appealed .

On DATE ORG dismissed the appeal in the final instance .

On DATE the applicant was recognised as a mandate refugee by the ORG High Commissioner for Refugees .

Everyone has a right to liberty and security ( LAW ) . Arrest , placement in custody and custodial detention are permissible only on the basis of a court order . The term during which a person may be detained prior to obtaining such an order can not exceed TIME ( Article CARDINAL § CARDINAL ) .

The term “ court ” is defined by LAW CCP ) of DATE as “ any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by LAW ” ( LAW ) . The term “ judge ” is defined by the ORG as “ an official empowered to administer justice ” ( LAW ) .

A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace , a regional court or ORG ( LAW ) .

LAW ORG governs the application of preventive measures . Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with DATE imprisonment where it is impossible to apply a more lenient preventive measure ( LAW ) . A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level ( LAW ) . A judge 's decision on placement in custody may be challenged before an appeal court within DATE ( LAW ) . The period of detention pending investigation of a crime can not exceed DATE ( LAW ) but may be extended DATE by a judge of a district court or a military court of a corresponding level ( LAW ) . Further extensions may be granted only if the person is charged with serious or particularly serious criminal offences ( LAW ) .

LAW ORG lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged . Acts or omissions of a police officer in charge of the inquiry , an investigator , a prosecutor or a court may be challenged by “ parties to criminal proceedings ” or by “ other persons in so far as the acts and decisions [ in question ] touch upon those persons ' interests ” ( LAW ) . Those acts or omissions may be challenged before a prosecutor ( LAW ) . Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings , or to discontinue them , or any other decision or inaction capable of impinging upon the rights of “ parties to criminal proceedings ” or of “ hindering an individual 's access to court ” may be subject to judicial review ( LAW ) .

Extradition may be denied if the act that gave grounds for the extradition request does not constitute a crime under LAW ( LAW ( CARDINAL ) ) .

Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body , a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of GPE ( LAW ) .

When performing actions requested under LAW , a requested official body applies its country 's domestic laws ( LAW ) .

Upon receipt of a request for extradition the requested country should immediately take measures to search for and arrest the person whose extradition is sought , except in cases where no extradition is possible ( Article CARDINAL ) .

The person whose extradition is sought may be arrested before receipt of a request for extradition , if there is a related petition . The petition must contain a reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or placed in detention before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .

Verifying the compatibility of LAW ORG with LAW , ORG reiterated its constant caselaw that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .

In ORG view , the guarantees of the right to liberty and personal integrity set out in DATE and LAW , as well as the legal norms of LAW of the ORG on preventive measures , were fully applicable to detention with a view to extradition . Accordingly , LAW ORG did not allow the authorities to apply a custodial measure without respecting the procedure established in the ORG , or in excess of the time - limits fixed therein .

The Prosecutor General asked ORG for an official clarification of its decision no . CARDINAL-O of DATE ( see above ) , for the purpose , in particular , of elucidating the procedure for extending a person 's detention with a view to extradition .

ORG dismissed the request on the ground that it was not competent to indicate specific criminal - law provisions governing the procedure and time - limits for holding a person in custody with a view to extradition . That was a matter for the courts of general jurisdiction .

In this decision ORG reiterated that LAW ORG did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time - limits provided for in the legislation on criminal procedure .


The applicant is a NORP citizen , born in DATE . He resides in LOC , GPE . The applicant was a member of ORG for DATE and served , inter alia , as Minister of ORG from DATE until DATE . Before the ORG the applicant is represented by PERSON and Mr PERSON , lawyers practising in GPE .

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

a.

In DATE the Parliamentary Ombudsman started an investigation of ORG administration in DATE of cases concerning NORP refugees ' applications for family reunification . In his report of DATE the ORG criticised the way ORG and ORG ( LOC for GPE ) had handled the applications for family reunification of NORP refugees .

The ORG 's report received considerable public attention and resulted in public criticism of the ORG 's refugee policy . The political unrest about refugee questions continued , especially about refugees ' possibilities of family reunification and the public criticism was increasingly directed against the applicant personally .

On several occasions members of ORG attempted to induce the ORG to invite a specially commissioned court of inquiry with public court sessions to investigate the applicant 's conduct in connection with the NORP refugees ' applications for family reunification . Whereas the applicant had no objections thereto the Government resisted and such a proposal was not adopted .

On DATE ORG transmitted a programme in which the applicant 's conduct and the discharge of his official duties were severely criticised . In the following DATE the television programme resulted in an extensive public debate in all NORP media . This caused the Prime Minister to issue a press release on DATE in which it appeared that the Government and the political parties , which together with the Government comprised a parliamentary majority , now agreed that the question of the administration of the NORP refugees ' family reunification should be investigated . From the press release it also appeared that the ORG would propose a change in ORG ( Retsplejeloven ) aiming especially at such an investigation .

The PERSON was proposed by the Minister of Justice on DATE and adopted on CARDINAL DATE .

Following the adoption of the Bill the Prime Minister addressed a letter of CARDINAL DATE to the President of ORG which read as follows :

( Translation )

" According to Section CARDINALa of ORG has decided , on behalf of ORG , to request a ORG judge to conduct an investigation of the decision - making process and the administration connected with the handling of cases concerning the family reunification of refugees from GPE . The investigation shall comprise the period from the conclusion of peace in GPE in DATE until it was decided to normalise the handling of these cases in DATE .

In the investigation it shall be examined whether anybody in public service or duty in connection with the proceedings has committed such faults or negligence which may result in an attempt to place legal responsibility .

It has been decided that the investigation according to ORG , subsection CARDINAL , shall be conducted in camera .

The Office of the Prime Minister will consider nominating a person to represent the ORG during the case .

With reference to the above the President of ORG is hereby requested to propose a ORG judge to conduct the investigation . "

On DATE the President of ORG proposed ORG Judge PERSON On DATE ORG Prime Minister requested H to investigate the matter as mentioned in the letter of DATE . Furthermore , on DATE the lawyer , N , was appointed to represent the public , i.e. acting as interrogator in the proceedings . Thus , on DATE a court of inquiry was set up on the terms of reference as described in the letter of CARDINAL DATE . On DATE the investigation was extended to comprise also the period after DATE .

During DATE and DATE ORG ) requested documentary evidence from , inter alia , various ORG , the Directorate for Aliens and ORG . This material comprised a total of CARDINAL pages .

ORG subsequently held ORG sessions and heard CARDINAL witnesses . The hearing of witnesses commenced on DATE and ended on CARDINAL DATE . The first CARDINAL sessions were held in camera . On DATE , however , the Prime Minister and the Minister of ORG agreed , as requested by the applicant , that the investigation should be conducted in public . The transcripts of the above CARDINAL sessions were accordingly made accessible to the public and the applicant was accordingly allowed to go through these transcripts .

Already on DATE ORG had informed the applicant of its task and that he would be called as a witness in the case . Like all other witnesses testifying before ORG , he was asked whether he wished a legal assistant ( bisidder ) during the proceedings , but he declined . Before the hearing of the applicant he was given an opportunity to acquaint himself with the written material which formed the basis of the interview . The applicant testified on CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE and DATE , DATE and DATE DATE as well as on DATE , DATE and DATE . Before his testimonies he was informed that he had the right to remain silent and that , in case he chose to give testimony , this would not be under oath .

On DATE ORG ended its examination of witnesses and the presiding judge stated , with regard to the submission of written statements , as follows :

( Translation )

“ ... ORG is not going to pronounce a judgment - which would presuppose legal arguments from counsel - but issue a report - i.e. a recommendation to others - with regard to the issues which have been examined during the investigation . If anybody wishes to make written submissions to the court it can not at the outset be expected that the court will take the initiative to arrange an adversarial procedure , requesting replies , rebuttal and counter - rebuttal from everybody who has made statements . As can be ascertained from the court ’s work , everybody who has given testimony without being under oath has had an opportunity - with legal assistance - to obtain knowledge of the evidence which ORG has obtained in order to prepare the report . Some - many - have made use of this opportunity , others have not . Everybody has had an opportunity to raise questions and to suggest that further evidence be produced and this opportunity has also been used by witnesses who have not wished legal assistance . ORG has complied with these wishes without exception , and nobody has been prevented from stating - also in a more general way - his views on the issues of the case during the hearings . If anybody despite this intends to make submissions to the court they are not prevented from doing so , but the preparation of the report has - as I said - commenced and ought obviously to be finished as swiftly as possible . ”

The final date for the submission of written statements was fixed by ORG as DATE , but on appeal to ORG the time - limit was extended to DATE . ORG - sitting with CARDINAL judges , CARDINAL of whom participated in the subsequent proceedings in ORG - stated in its decision of CARDINAL DATE that ORG would not be obliged to take into consideration observations submitted later than that date . Furthermore , it stated that having regard , inter alia , to the purpose of ORG it would not be obliged to initiate an adversarial procedure and forward received written statements to other witnesses .

On DATE and DATE ORG granted the witnesses the right to read through the court transcripts of the testimonies given by other witnesses at the offices of the legal assistants to the extent which the legal assistants considered it necessary in order to assist their clients properly . It was thus presupposed that witnesses were not given access to testimonies of other witnesses which the assistants considered irrelevant in relation to their clients . On DATE the decision was upheld by ORG , which also this time was composed of CARDINAL judges CARDINAL of whom subsequently participated in the proceedings in ORG .

On DATE and CARDINAL DATE ORG notified , inter alia , the applicant that it did not find sufficient reason to give him permission to go through the court transcripts of testimonies which were given by other witnesses during the public sessions of the ORG as he was not assisted by a legal assistant .

On DATE ORG report was finished and it was published on DATE . The report itself comprised a total of CARDINAL pages and the transcripts from the hearings comprised a total of CARDINAL pages . The report contained , inter alia , serious criticism of the applicant 's discharge of his official duties in his capacity as Minister of Justice in respect of the handling of the NORP refugees ' family reunification cases . It also contained criticism of the actions of other persons , including the Prime Minister at the time . On DATE the ORG resigned .

On the basis of the report ORG decided on DATE to institute proceedings against the applicant before ORG ) pursuant to the provisions of ORG ( PERSON ) . By indictment of DATE the prosecutors , appointed by ORG , charged the applicant with a violation of LAW , subsection CARDINAL , of Act no . CARDINAL of DATE concerning ORG responsibilities whilst in office ( lov nr . CARDINAL af CARDINAL . DATE om ministres ansvarlighed - the DATE Act ) . According to this provision a minister is liable to punishment if he wilfully or by gross negligence disregards the duties which fall on him under LAW , or under other laws , or due to the nature of his office .

The applicant was charged with having disregarded his duties under LAW ( GPE ) to the extent that a number of aliens could not obtain a family reunification although they had , under LAW , a right thereto .

The case commenced in ORG on DATE . Whereas no one challenged the impartiality and independence of the individual judges the applicant challenged the impartiality and independence of the court as such , referred , inter alia , to LAW and requested the court to dismiss ( afvise ) the case . In order to substantiate the allegations the applicant furthermore requested the hearing of ORG judge who had presided over ORG , as well as a lawyer who had participated in that inquiry .

As regards the hearing of the CARDINAL witnesses the court rejected the request by CARDINAL votes to CARDINAL on DATE stating the following :

( Translation )

" It appears from the public report which has been made by ORG in the NORP case how that court 's work was planned and carried out . To hear evidence in this respect must accordingly be regarded as superfluous .

The defence has not challenged the impartiality of any of the participating ORG judges but has in the preliminary submissions regarding the dismissal of the case in particular referred to the fact that ORG was chaired by ORG judge and that its meetings were held in ORG offices to the extent that the public at large was left with the impression that ORG as such has in advance been involved in the case . When considering this objection the question of what communications ORG judge H might have had with colleagues in ORG about the NORP case or related questions can not be considered to be of any importance .

Since the evidence concerning the connection advocate N might have had with the media during the period of time ORG was sitting can not be considered of importance for the question of dismissing the case either , these judges vote in favour of rejecting the request of calling ORG judge H and advocate N to submit evidence . "

The minority of CARDINAL judges did not find sufficient reason to reject the request .

Following further oral arguments ORG decided on the question of dismissing the case on DATE . In rejecting the request for dismissal the unanimous court stated as follows :

( Translation )

" The composition of ORG is set out in LAW . The provision that the court shall consist of an equal number of ORG judges and judges elected by ORG must be based on the assumption that the special cases which fall under the court 's competence ought to be delivered by a group of judges which comprises not only persons trained in law but also persons with special knowledge of political matters . Having regard to the fact that charges are brought by ORG it has been decided that members of ORG can not be elected to or act as members of ORG . The provision according to which members and the substitutes are elected for DATE in a proportionate way secures that members are not elected in order to participate in a particular case and that the elections reflect the ( political parties ' ) number of seats in ORG . It must be considered natural and legitimate that the persons , who are elected as members of the court , are associated with the political parties , but this does not mean , of course , that when deciding a case before the court they should be considered as ‘ party men’ who will rely more or less on what their political basis might think about the case . Against this background there is no substantiation in counsel 's submissions that the election by ORG of CARDINAL of the judges makes ORG ‘ a delicate legal ORG and ‘ which in advance makes it difficult for the court to appear independent and impartial in this ORG

As regards the participating ORG judges counsel for the defence has submitted , among other things , that ORG in the NORP case was chaired by ORG judge who sat in the offices of ORG and that , therefore , the view was formed by the public at large that ORG as such was involved in the work of ORG . This view has no basis in fact , something [ the applicant ] must be aware of . Even assuming that this view might appear among the public this can not constitute a reason for finding that there can be any legitimate doubts as to the impartiality of the participating ORG judges . Nor does the fact that ORG , pursuant to LAW , subsection CARDINAL , of ORG , examined certain appeals against decisions of a procedural character taken by ORG , or the fact that ORG was chaired by a colleague to the participating ORG judges , give any reasonable grounds for such doubts .

The facts of the cases decided by ORG , which have been referred to by counsel for the defence , are in the court 's view quite different from those of the present case . Therefore , these decisions can not support counsel 's view either . It is noted in this respect that the requirement that a court shall appear to be impartial implies , according to the case - law of ORG , that there ought not to be any legitimate doubt as to the impartiality of the judges .

The objections of a general character which counsel for the defence has raised against both the judges elected by ORG and the participating ORG judges can not in the circumstances , either as such or as a whole , constitute the basis for any legitimate doubts as to whether ORG fulfils the requirements of impartiality which a court is obliged to comply with according to LAW .

ORG shall in its evaluation of whether [ the applicant ] is guilty of the charges brought against him only consider the evidence which is brought to the attention of the court . As a starting point it is accordingly of no importance for this case on what grounds ORG decided to press charges . The submissions of counsel for the defence , however , give the court reason to make the following remarks about ORG and its competence .

According to its assignment ORG , inter alia , had to consider whether ‘ anybody in public service or duty in connection with the proceedings has committed such faults or negligence which may result in an attempt to place legal responsibility.’ Thus , ORG made an evaluation of evidence as well as legal evaluations , but ORG had no mandate to decide - and did not decide - whether [ the applicant ] committed a punishable offence . Accordingly , it did not have , and did not exercise , a judicial function in the sense provided for in LAW of the LAW . The assignment of ORG was accordingly not contrary to the prohibition in this provision against creating special courts with the power to exercise judicial functions . The reasons which have been decisive for ORG 's decision to press charges are of no importance for ORG decisions in this case . What has been submitted by counsel for the defence about the correlation between the legislative , the executive and the judicial powers in connection with the setting - up of ORG , or the criticism of a general character which has been directed against special courts or courts of inquiry ... are not of any importance in respect of the question of dismissing the present impeachment case either .

As regards the inquiry 's importance as to the proceedings in this case , counsel for the defence has submitted that the possibility of a direct taking of evidence through the hearing of witnesses in ORG is lost or at least considerably reduced due to the fact that most of those persons who shall give evidence have done so previously in ORG . It is normal , however , and not contrary to the principle of direct evidence that a witness in a criminal case at an earlier stage has made statements to the police or in court . Like in other criminal cases , ORG must consider the weaknesses which may follow from this as an element in the evaluation of evidence .

Counsel for the defence has , furthermore , submitted that the case has for DATE been mentioned and commented upon in the media to quite an extraordinary extent and in a way which was solely detrimental to [ the applicant ] so that he now appears to be convicted in advance . Even if the description of the media coverage is more or less correct there is no legitimate reason to believe that ORG can not disregard this and decide solely on the basis of the evidence before it .

Accordingly , in respect of the objection related to other matters than the question of the impartiality of the court there is no legitimate reason either to doubt that [ the applicant ] will have a fair trial within the meaning of LAW .

Finally , it is considered that counsel 's submissions that the case has not advanced within a reasonable time , cf . LAW , can not constitute the basis for dismissing the case .

Consequently , the court finds no reason to accept the request for dismissal . "

Following the above decision the court resumed its examination of the case . On DATE a dispute arose between the prosecution and the defence as to the use of the transcripts from ORG when hearing witnesses in order to confront these witnesses , if necessary , with their previous statements .

On DATE the court decided by CARDINAL votes to CARDINAL to allow the use of these transcripts . In its decision the majority stated as follows :

( Translation )

" The dispute concerns only whether the transcripts from ORG should be submitted and whether these transcripts may be used to confront ( witnesses with their previous statements ) . The transcripts do not contain ORG evaluations or conclusions but recall the statements [ the applicant ] and witnesses made before ORG as taken down by the judge and accepted by the witness . Permission to confront ( witnesses with these statements ) means only that [ the applicant ] and witnesses may be questioned about the differences should their statements during the trial deviate from their previous statements .

According to normal practice in criminal cases both court transcripts containing statements from the accused and witnesses as well as police reports containing statements to the police are submitted . The submission is made pursuant to LAW which corresponds to LAW of LAW , and the submission is made despite the fact that these documents can not as a main rule be used as independent LAW evidence during the trial cf . LAW , subsection CARDINAL . CARDINAL and CARDINAL and subsection CARDINAL , of ORG . Thus , it is in accordance with normal practice in criminal cases that the transcripts from ORG are submitted during the trial in ORG DATE , second sentence , of LAW can not lead to any other result . Furthermore , it is noted that ORG transcripts are public . We do not find reason in these circumstances to accept the protests made by counsel for the defence .

Sections CARDINAL and DATE , second sentence , of the Impeachment Act deal only with court transcripts concerning preliminary examinations arranged by ORG , but resemble otherwise mainly LAW , subsection CARDINAL . CARDINAL and CARDINAL , of ORG . The question how ORG transcripts may be used during the trial in ORG shall thus be decided according to the rules contained in LAW and case - law related thereto , cf . the general reference to ORG in LAW of LAW .

In accordance with normal practice in criminal cases both court transcripts and police reports may be used , where necessary , by the prosecution and the defence to confront ( witnesses with their previous statements ) . Such a use is not contrary to the principle that the case shall be determined only on the basis of the evidence which has been submitted during the trial . This is so since these confrontations do not replace the accused 's or the witness ' statements during the trial , but aim at giving the court a better basis upon which to evaluate the evidence in question . We consider , therefore , that ORG transcripts may be used in accordance with this practice .

There is no reason to believe that the submission of the transcripts or their use for confrontation purposes would be contrary to the principles contained in the LAW . ... "

CARDINAL judges were against the use of the transcripts , stating as follows :

( Translation )

" We find that it would be more in conformity with the principle of direct evidence that ORG transcripts are not submitted and that they are not in any way used during the trial in ORG . Thereby it will be secured that the statements will be made regardless of what happened in ORG , and that ORG thus appears - in accordance with the principles found in LAW to be wholly unbound of the work performed by ORG . Thus , we vote in favour of accepting the protest of counsel for the defence . "

The trial hereafter continued , written evidence was produced and the applicant and a total of CARDINAL witnesses - several of whom appear to have been called by the defence - were heard . On DATE the applicant suffered a stroke and the trial was adjourned . In order to evaluate the effect thereof several medical opinions as well as an opinion from ORG ( PERSON ) were obtained . On DATE the trial was adjourned until further notice . Following further medical examinations the prosecution requested , on DATE , that the case be resumed whereas counsel for the defence requested a further adjournment due to the applicant 's state of health .

On DATE ORG decided to continue the case . A majority of CARDINAL judges stated as follows :

( Translation )

We find that [ the applicant 's ] physical state of health does not prevent him from being present during continuing proceedings .

According to the explanations of the doctors there is no scientific basis for believing that his continuing presence increases the risk of a deterioration of his health .

Hereafter , it must be examined whether his mental state excludes that the case continue ...

As set out in ORG statement of CARDINAL DATE [ the applicant 's ] intellect is still to be considered as being reduced considerably although a certain improvement has occurred as regards acknowledging the illness and the function of speech . ORG has not , however , been willing to decide whether he is incapable of participating at a qualified level in a trial since the answer would depend on a legal evaluation of the medical information .

According to practice in normal criminal cases a deterioration of mental functions does not exclude the conclusion of a criminal case and the imposition of a normal penalty on persons with an illness equivalent to that of [ the applicant ] . Being unaccountable for one 's actions due to a mental illness which has occurred subsequent to the criminal act but before judgment is pronounced does not as such exclude that a case may be concluded and a penalty imposed , cf . LAW of LAW .

From LAW or its travaux préparatoires ... it does not appear that the legislature wished to deviate from this practice in cases concerning Ministers ' responsibilities whilst in office to the extent that such cases could not proceed unless the accused could participate at a ' qualified level ' .

Before [ the applicant ] was hospitalised on DATE due to a stroke the major part of the taking of evidence had been concluded and he had been present during all court sessions . Thus , he had been heard during CARDINAL court sessions and he had attended all hearings of witnesses and all documentation of written material . The remaining taking of evidence consists , following the ORG request of the defence , of a re - examination of CARDINAL witnesses and of [ the applicant ] . This part of the trial may be conducted in a way that the necessary considerations are taken to his state of health .

In these circumstances we find that in the existing medical information , compared with the other available information about [ the applicant 's ] situation following the stroke on DATE , there is no reason to believe that it will be impossible for him to take a stand as to the charges , to make rational statements as well as to follow the rest of the proceedings , and he can not be considered as being incapable of examining all relevant witness statements together with counsel prior to making statements . Furthermore , there is no reason to believe that a continuation of the trial would entail a breach of the guarantees LAW and LAW contain in order to secure an accused 's defence .

Since what counsel for the defence has submitted concerning LAW can not lead to any other result we vote in favour of the prosecution 's request to continue the case . "

A minority of CARDINAL judges voted in favour of rejecting the request stating as follows :

( Translation )

" According to LAW of LAW , cf . LAW , an accused has a right to be present personally during the entire trial . The provision expresses that the accused has a right to defend himself , including putting questions to witnesses , express himself on the result of the taking of evidence , on legal questions and to have the last word in the case . These considerations are of particular importance in an impeachment case - cf . , inter alia , the travaux préparatoires to LAW . [ The applicant 's ] counsel has maintained that a continuation of the trial requires his personal presence and since none of the circumstances mentioned in LAW , subsection CARDINAL , ... are at hand , this case may not be pursued if the accused has a valid excuse for being absent , cf . LAW , subsection CARDINAL , of ORG . Under this falls - in addition to physical illness - in certain circumstances also mental illness in the form of a mental deterioration .

Since DATE a considerable number of court sessions have been held during which a considerable number of witnesses have been heard . During the continuing trial it remains to hear , once more , CARDINAL central witnesses and - not least - [ the applicant ] , and it must be considered to be of decisive importance to his possibilities of defending himself , that he is capable , during the reexaminations and during the oral pleadings , to understand and express himself about the charges and the substantial amount of evidence . According to the existing medical information [ the applicant 's ] intellect is permanently impaired to a considerable extent , caused by vascular related dementia with the result that , in our opinion , he would be unable to participate in the proceedings at a qualified level , having regard to the special character and dimension of the case and , thus , the requirements to his intellectual level which concluding the case in a responsible manner demands . A continuing adjournment of the trial would not entail that [ the applicant ] is better placed than other accused , including accused who are covered by the rules in Sections CARDINAL , CARDINAL and CARDINAL of the Penal Code covering sanctions against mentally deviating offenders . ... Also these accused are protected by the guarantee of a fair trial which Sections CARDINAL and CARDINAL express .

Therefore , we find that what the prosecution has submitted concerning the continuation of the case does not constitute a basis for setting aside the court 's previous decision to adjourn the case until further notice , since [ the applicant 's ] state of health still entails that he has a valid excuse for being absent . Thus , we vote in favour of rejecting the prosecution 's request to continue the case . "

Following this decision counsel for the defence informed the court on DATE that the request for re - hearing the CARDINAL witnesses and the applicant was withdrawn since it was considered irresponsible in view of his state of health to confront the applicant with the witnesses or to hear him again . Furthermore counsel for the defence announced that most likely the applicant would not be present during the remaining sessions . The prosecutors declared that they would not request that the applicant be fetched by force . Counsel was accordingly now ready to commence the oral pleadings .

The oral pleadings commenced on DATE and ended on DATE when the case was accepted for adjudication . The applicant did not attend these court sessions .

Judgment was pronounced on DATE . By CARDINAL votes to CARDINAL the applicant was found guilty of having violated LAW , subsection CARDINAL , of Act no . CARDINAL of DATE concerning ORG responsibilities whilst in office . He was sentenced to DATE imprisonment which was suspended provided no further criminal act would be committed within DATE . The judgment contained thorough reasoning with regard to the applicant ’s guilt as well as his sentence . The costs of the proceedings were borne by the ORG .

The judgment of ORG is final .

b. Relevant domestic law and practice

Provisions relating to ORG

( Translation )

Section CARDINAL of the LAW

“ ... Special courts with powers to pass judgments can never be instituted . ”

Section CARDINAL of ORG

“ The Government retain their right to institute special courts save as regards special courts with powers to pass judgments ... ”

Section CARDINALa of ORG

“ ( CARDINAL ) The Minister of ORG may request one or several judges to conduct an investigation of specific matters . The Minister of ORG may decide that experts participate in the investigation .

( CARDINAL ) ORG has no powers to pass judgments .

( CARDINAL ) The investigation is conducted according to the rules of [ ORG ] . However , the Minister of ORG may in special cases decide that the investigation shall be conducted in camera ...

( CARDINAL ) The decisions of ORG may be appealed against directly to ORG .

( CARDINAL ) The investigation is concluded by a report . The report is published by the Minister of ORG , unless quite exceptional reasons speak against publication . "

The competence and composition of the ORG of Impeachment

( Translation )

Section CARDINAL of the LAW

“ Ministers can be prosecuted for the discharge of their office by the King or by ORG . ORG shall try the cases instituted against the ministers for the discharge of their office . ”

Section CARDINAL of the LAW , which was given its present wording by LAW of DATE , reads as follows :

( Translation )

“ ( CARDINAL ) ORG shall consist of CARDINAL of the eldest - according to seniority of office - ordinary members of the highest court of justice of the GPE and an equal number of members appointed for DATE by ORG according to proportional representation . CARDINAL or more substitutes shall be appointed for each appointed member . No member of ORG shall be appointed or act as a member of ORG . Where in a particular instance some of the members of the highest court of justice of the GPE are prevented from taking part in the trial and adjudication of a case , an equal number of the members of ORG last appointed by ORG shall retire from their seats .

( CARDINAL ) ORG shall elect a President from among its members .

( CARDINAL ) Where a case has been brought before ORG , the members appointed by ORG shall retain their seats in ORG for the duration of such case , even if the term for which they were appointed has expired .

( CARDINAL ) Detailed rules for ORG shall be provided by statute . ”

Detailed rules for ORG are laid down by Act No . CARDINAL from DATE , cf . Consolidation Act No . CARDINAL of CARDINAL DATE - the Court of Impeachment Act . Relevant provisions of LAW read as follows :

( Translation )

Section CARDINAL , subsection CARDINAL

“ ORG shall try the cases instituted by the King or ORG against the ministers . ”

Section CARDINAL

“ ( CARDINAL ) ORG shall consist of the ordinary members of ORG and an equal number of members appointed for DATE by ORG according to proportional representation . No member of ORG shall be appointed or act as a member of ORG .

( CARDINAL ) For each person appointed , CARDINAL substitutes shall immediately be appointed according to proportional representation .

( CARDINAL ) Where any of the judges appointed by ORG retires from ORG before expiry of the term of the appointment , the substitute first appointed for him shall take his seat in ORG for the remaining part of term . Where the first appointed substitute is prevented from doing so or where he retires from ORG as well , the second substitute takes his place .

( CARDINAL ) No supplementary appointments of substitutes shall be held .

( CARDINAL ) Where a case has been brought before ORG , the members appointed by ORG shall retain their seats in the court for the duration of such case , even if the term for which they were appointed has expired . ”

Section CARDINAL

“ ( CARDINAL ) Where in a particular instance some of the judges of ORG are prevented from taking part in the trial and adjudication of the case , an equal number of the members last elected by ORG according to proportional representation shall retire from their seats .

( CARDINAL ) Where CARDINAL of the appointed judges is prevented from taking part in the trial of the individual case , his seat in the court shall be taken by the substitute first appointed for him ; where he is also prevented from taking part in the case , the second substitute shall take his seat . Where he is also prevented from taking part in the case , the most junior ORG judge in office shall retire from his seat . ”

Section CARDINAL

“ In no case can the bench of ORG comprise CARDINAL judges . ”

Section CARDINAL

“ Each of the judges of ORG shall make a written solemn assurance on his honour and conscience that he will attentively follow the proceedings in the court and pass judgment as he finds it to be right and true according to the law and the evidence of the case . ”

On DATE ORG appointed CARDINAL lay judges and CARDINAL substitutes for the period from DATE until DATE ( cf . Parliamentary Proceedings , ORG and Index , DATE , p. CARDINAL ) . CARDINAL of the lay judges had also been appointed as lay judges or substitutes in DATE from DATE until CARDINAL DATE .

Provisions on the accused ’s right and duty to be present

Relevant provisions of ORG ( in translation ) :

Section CARDINAL

“ Where the defendant fails to appear without lawful cause of absence from the hearing mentioned in LAW or any subsequent hearing , ORG may take whatever steps necessary to secure his presence , including , if necessary , to have him fetched by force . ”

Section CARDINAL

“ Where the defendant does not appear and can not immediately be brought before the court , the court decides , after the prosecutor and counsel for the defence have spoken , whether the case is nevertheless to be advanced , or whether it should be adjourned . ”

Section CARDINAL

“ Unless otherwise stipulated by LAW , the Administration of justice LAW applies to the procedure before ORG . ”

Relevant provisions of the Administration of justice LAW reads as follows ( in translation ) :

Section CARDINAL

“ Unless an exception is stipulated by law , the defendant must be present in person during the entire trial as long as he has access to making a statement ; however , after the examination of the defendant is concluded , the presiding judge may permit him to excuse himself . ”

Section CARDINAL

“ ( CARDINAL ) Where the defendant fails to appear at the beginning of or during the trial , and where he can not immediately be brought before the court , the case will be adjourned . Where the defendant fails to appear despite lawful summons and without stating a lawful cause of absence , the court may decide , however , that witnesses and experts who have appeared must be examined , if this is found compatible with the interests of the defendant and provided an adjournment of the examination will be of substantial inconvenience to the persons who have appeared or involve considerable postponement of the case . However , examinations pursuant to the second sentence can only be carried through if the defendant ’s counsel has appeared and consents to the examination .

( CARDINAL ) A trial can be expedited in the defendant ’s absence if the court finds that his presence is not necessary :

( i ) when he has escaped after service of the indictment on him ,

( ii ) when , after having appeared when the case was opened , he has left the court without leave of the court ,

( iii ) when it is deemed

( a ) that the most severe punishment is a matter of imprisonment for DATE , and that the defendant has consented to the expedition of the case , or

( b ) that the trial will undoubtedly lead to his acquittal . ”


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Luis López Guerra

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

The applicant first entered GPE on DATE . On CARDINAL DATE he applied for asylum . His request was denied in final instance on DATE .

On DATE the applicant was convicted of shoplifting and sentenced to a fine of MONEY ( NLG ) ( CARDINAL ( ORG ) ) .

On DATE the applicant filed a second request for asylum .

DATE the applicant started cohabiting with a NORP national with whom he had started a relationship . The applicant ’s partner suffers from a psychiatric disorder .

On DATE the applicant accepted a deal proposed by the public prosecutor and paid NLG CARDINAL ( EUR CARDINAL ) in relation to an offence of shoplifting committed on DATE .

His second request for asylum was denied in final instance on DATE . However , the applicant did not at that time leave the country and neither was he forcibly expelled .

On DATE the applicant was convicted of defamation , destruction and attempted aggravated assault , committed on CARDINAL DATE , and sentenced to a suspended term of CARDINAL months’ imprisonment as well as to CARDINAL ORG community service .

In DATE the applicant married his partner and on DATE he applied for a residence permit for the purpose of residing with his wife ( verblijfsvergunning regulier voor bepaalde tijd voor verblijf bij echtgenote ) .

On DATE the applicant ’s request was rejected by the Minister for ORG ( Minister PERSON ) . The Minister considered that the applicant was not in possession of a provisional residence visa ( machtiging tot voorlopig verblijf ) . Such a visa is normally a prerequisite for the grant of a residence permit , which confers more permanent residence rights , and it has to be applied for in a person ’s country of origin . The Minister further considered that the applicant was not in possession of a valid document to cross international borders ( document voor grensoverschrijding ) . The applicant lodged an objection ( bezwaar ) against this decision .

He subsequently returned to GPE and filed a request for a provisional residence visa with the NORP representation in GPE on DATE . On CARDINAL DATE the applicant ’s request was rejected by the Minister of ORG ( Minister PERSON ) , who considered that the applicant had repeatedly committed criminal offences and that he had already committed his first offence DATE after arriving in the GPE . Furthermore the applicant had continued to commit criminal offences even after he had started cohabiting with his partner . The Minister of ORG therefore also dismissed the applicant ’s argument that he should be granted a residence permit in view of the medical condition of his wife , as he should have realised that the commission of criminal offences would affect his chances of a residence permit . Furthermore , it was considered that the applicant had never had legal residence in the GPE and it was thus for him to bear the risks involved in starting family life at that time . The Minister of ORG therefore found that , in these circumstances , Article CARDINAL of the Convention did not impose a positive obligation on the State of the GPE to allow the applicant to reside in that country . Moreover , it had not appeared that there was an objective obstacle standing in the way of family life being enjoyed outside of the GPE .

On DATE the applicant filed an objection ( bezwaar ) against the decision to deny him a provisional residence visa . He argued that the offences he had committed were only minor ones and that he had not reoffended since his last conviction of DATE . In the view of the applicant , his and his wife ’s interests in being able to enjoy family life in the GPE outweighed public order interests . In this context he also pointed to a letter drawn up by a social - psychiatric nurse to his lawyer , saying that the applicant ’s wife was suffering from a schizoaffective disorder , bipolar type , and that she had had to be admitted to a closed ward of a clinic after her husband had returned to GPE as the stress , loneliness and despair concerning the uncertainty about his return had become too much and had led her to take an overdose of pills . According to the nurse , it was realistic to expect that her situation would improve if her husband returned as he was the only stable factor in her life and exerted a positive influence on her . Although the nurse stated that a long - term stay of the applicant ’s wife in GPE hardly appeared to be an option , this was ultimately for her to decide .

On DATE the Minister of ORG dismissed the applicant ’s objection , considering that the situation of the applicant ’s wife had already been taken into account in the original decision and the applicant had not submitted any new facts or circumstances leading to the conclusion that the condition of his wife should be deemed a special circumstance . Moreover the Minister considered that the criminal offences carried a certain gravity , regardless of the fact that it had been DATE since the last offence had been committed . Finally , the Minister concluded that sufficient consideration had been given to the applicant ’s family life in the balancing of the public and private interests involved .

In his subsequent appeal ( beroep ) against this decision , the applicant argued that the Minister of ORG had failed to motivate properly why the condition of his wife did not constitute a special circumstance . According to the applicant , the Minister had not correctly balanced the interests at issue .

The objection which the applicant had lodged against the decision to refuse him a residence permit was rejected by the Minister for ORG on DATE . The Minister considered that the mere fact that the applicant was now in possession of a valid passport did not qualify him for a residence permit as he still did not posses the required provisional residence visa .

On DATE the applicant filed an appeal against this decision also , arguing that it was contrary to the principle of fair play to refuse him a residence permit for the sole reason that he did not hold a provisional residence visa . The applicant further submitted that the interests at stake had not been properly balanced since his and his wife ’s interests ought to outweigh the interest served by the mere formality of obtaining a provisional residence visa .

On DATE ORG ( rechtbank ) of GPE , sitting in GPE , delivered its verdict in both the appeal against the refusal of a residence permit and the appeal against the refusal of a provisional residence visa . Regarding the application for a residence permit ORG considered that this had been rejected on the basis of the legal provisions in force at the time the application had been lodged , and which required that the applicant hold a provisional residence visa . The court further held that the question whether or not LAW should lead to the applicant being admitted to the GPE fell to be determined in the proceedings relating to the provisional residence visa rather than in the context of the question whether or not the lack of such a visa should be held against the applicant .

In its second decision of DATE , relating to the refusal to issue the applicant a provisional residence visa , ORG considered that the Minister had had sufficient regard to the psychological problems of the applicant ’s wife . It further found that it had not been unreasonable for the Minister to attach more weight to the interests of the community than to the private interests of the applicant . ORG took into account that the applicant had been convicted of a number of criminal offences ; that he had not held a residence permit when he started a relationship in DATE or when he married in DATE ; that he had committed offences during the time he had been cohabiting ; that the applicant ’s wife was thus aware of the fact that she was living with , and subsequently married , a repeat offender ; and that it could not be said that the applicant had committed minor offences only . In the opinion of the court , the ORG was also not under a positive obligation to admit the applicant . In this context it inter alia considered that it had not appeared that there were any objective obstacles to family life being continued in GPE , the mere claim that settlement in the latter country was not a realistic option for the applicant ’s wife not having been substantiated .

On DATE the applicant lodged a further appeal ( hoger beroep ) against both judgments of ORG to ORG of ORG ( GPE bestuursrechtspraak PERSON ) . In his appeal in the procedure against the Minister for ORG , the applicant argued inter alia that the Minister was obliged to examine the application for a residence permit also in the light of Article CARDINAL instead of restricting that examination to the proceedings relating to the request for a provisional residence visa .

In the accompanying appeal in the procedure to deny him a provisional residence visa , the applicant argued that insufficient account had been taken of his wife ’s psychological problems , that ORG had failed to acknowledge that the original decision by the Minister of ORG did not contain a proper balancing of the interests involved and that no weight had been given to the fact that the applicant and his wife were married . The applicant further submitted that no proper examination had been conducted of the question whether Article CARDINAL entailed the existence of a positive obligation for the NORP authorities in the present case . Furthermore ORG had failed to conclude that the original decision did not contain a proper motivation as to why the applicant ’s ( suspended ) sentences could lead to the conclusion that public order grounds carried more weight than the personal interests of the applicant and his ill wife , especially considering that the applicant had not re - offended since DATE .

On DATE the ORG dismissed both appeals on summary grounds for not raising any points of law .

It appears from the case file that the applicant ’s wife has visited her husband in GPE a number of times .

The admission , residence and expulsion of aliens are regulated by LAW ( Vreemdelingenwet CARDINAL ) . Further rules are set out inter alia in LAW ) .

As a rule , anyone wishing to apply for a residence permit in the GPE must first apply from his or her country of origin to the GPE Minister of ORG for a provisional residence visa . Only once such a visa has been issued abroad may a residence permit for the GPE be granted . An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit .

The Government pursue a restrictive immigration policy owing to the population and employment situation in the GPE . Aliens are eligible for admission only on the basis of obligations arising from international agreements , or if their presence serves an essential national interest , or on compelling humanitarian grounds .

Pursuant to article CARDINAL of LAW , a residence permit for the purposes of family reunion or family formation can be refused if the alien constitutes a threat to public order or national security . In this respect , article CARDINAL paragraph CARDINAL sub c of LAW reads in its relevant part that a threat to public order exists when :

“ c. the alien has been convicted of a criminal offence and sentenced to either a nonsuspended prison sentence or custodial measure , a community service order or nonsuspended financial penalty , or if , in relation to a criminal offence , the alien has accepted an out - of - court settlement or if a punishment order has been issued against him by a public prosecutor . ”

Under the relevant provisions of LAW ( PERSON ) , shoplifting attracts a prison sentence of DATE ( article CARDINAL ) , attempted aggravated assault , a prison sentence of MONEY and DATE ( article CARDINAL ) , destruction , a prison sentence of MONEY ( article CARDINAL ) and defamation , a prison sentence of DATE ( article CARDINAL ) .


Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant , Mr PERSON , is a NORP national who was born in DATE and is serving his sentence in PERSON prison . He was represented before the ORG by Mr O. Moravec , a lawyer practising in PERSON . The respondent Government were represented by their Agent , Mr V.A. ORG , from ORG .

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

In a judgment of DATE the ORG Králové ORG ( krajský soud ) found the applicant guilty of an attempted murder . On DATE ORG ( vrchní soud ) quashed the judgment holding that the guilt of the applicant had not been yet proven beyond reasonable doubt and instructed ORG to gather additional evidence .

After examining additional evidence , some of it suggested by the applicant , and having held a public hearing ORG found again the applicant guilty of an attempted murder on DATE . The court found it established that the applicant had beaten his roommate with a stick and subsequently had made him to swallow a deadly amount of medicaments . The victim had not died only because of timely medical intervention . The applicant was sentenced to CARDINAL years’ imprisonment . The court based its decision on the testimony of several witnesses including the victim , on an expert medical report describing the injuries which the victim suffered and on a psychological and toxicological report of the victim and also a police report describing the crime scene . At the trial , the victim only referred to his testimony from the pre - trial proceedings , which was read out at the trial , but he answered all the questions given to him .

The applicant appealed arguing primarily that his guilt had not been proven beyond reasonable doubt .

On DATE ORG ( vrchní soud ) at a public hearing upheld the first - instance judgment .

On DATE ORG ( PERSON ) rejected the applicant ’s appeal on points of law as manifestly ill - founded .

The applicant lodged a constitutional appeal ( ústavní stížnost ) claiming a violation of his right to a fair trial and the right to liberty . He alleged that his conviction was based solely on the testimony of the victim and he disagreed with the assessment of evidence carried out by the courts . ORG ( GPE PERSON ) requested observations from the ordinary courts and prosecutor ’s offices which had previously been involved in the case . ORG , ORG and ORG only referred to their decisions and stated that they had not violated the applicant ’s constitutional rights . ORG and ORG waived their right to be parties to the proceedings . ORG in its CARDINAL - paragraph submission considered the constitutional appeal ill - founded without any elaboration and referred to the decisions of the ordinary courts . None of these observations were communicated to the applicant .

On DATE ORG rejected the constitutional appeal as manifestly ill - founded holding that it was not a court of third instance . It added that the decisions of ordinary courts were logical and there was no appearance of arbitrariness . It further noted that it did not take the above observations into account as they did not bring anything new .

The relevant domestic law and practice concerning the procedure before ORG are set out in the ORG ’s judgment in the case of ORG and Others v. GPE ( no . CARDINAL/CARDINAL , ECHR CARDINALV ) .


The applicant , Toviy PERSON , is a NORP national , who was born in DATE and lives in GPE . The respondent Government are represented by PERSON , ORG at ORG .

The applicant 's house is situated on a steep bank of LOC . The only public driveway to his house goes along the river , in a land - slide area . The road is quite narrow and it is locked between the riverside and the land of the applicant 's neighbour , PERSON

In DATE PERSON built a garage . The garage went beyond the boundaries of her land and entrenched on the road . As a result , PERSON was subjected to an administrative fine for unauthorised construction . However , in DATE the local council decided to regularise the existing situation and proposed PERSON to lease the territory under the garage from the council .

On an unspecified day in DATE the applicant brought court proceedings against PERSON and the local council claiming that the garage was built in breach of the domestic city planning regulations . The applicant also alleged that that the garage hindered access to his land by car .

On DATE ORG took the decision in the applicant 's favour . On DATE the ORG quashed this decision and remitted the case for a fresh examination .

On DATE ORG found in the applicant 's favour . The court held that the garage had been built without due permission of the city administration and exceeded the boundaries of PERSON land . The court , referring to an expert report of CARDINAL DATE , also held that the access to the applicant 's land had been seriously hindered by the garage . The court ordered PERSON to remove the garage and pay damages to the applicant in the amount of MONEY ( ORG ) . No appeal followed , and the decision became final .

In DATE the court bailiffs recovered RUR CARDINAL from PERSON The applicant received RUR CARDINAL of this sum , the rest being withheld by the bailiffs as an enforcement fee . The court decision ordering PERSON to remove the garage remained unexecuted .

On DATE the city administration legalised the garage by delivering a building permit to PERSON and annexing the parcel under the garage to Ms PERSON 's land .

On an unspecified date Ms. PERSON brought new court proceedings against the applicant seeking to re - open the case “ due to the discovery of new facts ” . According to PERSON , shortly after DATE ( that is the date of the first court decision ) she learned that a geodesic research had been carried out by the city planning authority . This research had shown that due to a long - distance power line running over PERSON land , it had been impossible to build a garage otherwise than exceeding the boundaries of the plot . Consequently , in DATE the boundaries of Ms K. 's land were delimited anew . An expert report drawn on DATE confirmed that the garage was now located on Ms K. 's land .

On DATE ORG granted the application for re - opening having applied LAW . On DATE the court rendered a new judgment in this case . The court established that at the moment of the examination of the applicant 's case it had not been aware of the findings of the expert report of DATE . The court noted that the second report was more “ credible ” than the initial report of CARDINAL DATE , referred to by the court in its decision of CARDINAL DATE . The court further noted that the plaintiff , PERSON , had presented documents entitling her to the land under the garage . On this ground the court dismissed the applicant 's initial claims and awarded PERSON damages in the amount of CARDINAL ORG . On DATE ORG rejected the applicant 's appeal against this decision .

On DATE ORG awarded to PERSON ORG as compensation for the money recovered from her pursuant to the court decision of CARDINAL DATE . It appears that this decision was not appealed to the second instance court .

In DATE , upon the applicant 's request , the regional prosecutor brought an extraordinary appeal against the decision of DATE . On DATE the Presidium of the Krasnodar Regional Court quashed the challenged decision stating that the circumstances adduced by ORG as “ newly discovered ” should not have led to revision of the initial court decision of CARDINAL DATE . The court also discovered certain defects in the proceedings before ORG . As a result , the case was remitted to the first instance court .

On DATE ORG decided that the decision of CARDINAL DATE in the applicant 's favour should remain in force . The court found , in particular , that the authorisation to build garage delivered to PERSON by competent authorities in DATE did not constitute a “ newly discovered circumstance ” calling for revision of the court decision . On DATE this decision was upheld by ORG .

PERSON brought new court proceedings against the local council claiming to recognise her property rights to the garage . On DATE ORG satisfied her claims declaring that the garage was PERSON property . The court also ordered inscription of the garage in the land registry . The applicant did not participate in these proceedings .

According to LAW to discovery of substantial circumstances which were not and could not have been known to the person who applies for a review . Pursuant to LAW , the decision of the court to re - open the proceedings on this ground is not subject to appeal .

For relevant provisions of the NORP law on the supervisory review procedure see ORG v. GPE , no . CARDINAL/CARDINAL , § DATE , ORG CARDINALX.


The applicant is a NORP citizen , born in DATE and residing in GPE , GPE . She is represented before the ORG by her son , PERSON PERSON .

A.

The applicant claims that in DATE her parents in law transferred to her by means of a sale contract a right to keep a pharmacy in GPE as a real right . Such a right was considered a property right that included a right to keep a pharmacy and the ownership of the pharmacy itself . In DATE the contract between the applicant and her parents in law was annulled . On DATE all property of the applicant 's parents in law was confiscated .

On DATE ORG enacted GPE of and Compensation for Property Taken during ORG ( Zakon o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine ) , that enabled former owners of confiscated and nationalised property to seek either restitution of or compensation for the property taken from them .

On DATE the applicant lodged a request for restitution of the confiscated property with an administrative body , which has not yet issued a decision .

B. Relevant domestic law

The relevant articles of LAW ( Zakon o općem upravnom postupku ) provide as follows .

LAW provides that in simple matters , where there is no need to undertake separate examination proceedings , an administrative body is obliged to issue a decision within DATE after a party lodged a request . In all other , more complex , cases , an administrative body is obliged to issue a decision within DATE after the request was lodged .

LAW enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal , as if his request had been denied .

The relevant provisions of LAW ( Zakon o upravnim sporovima ) provides as follows .

Article CARDINAL enables a party who lodged a request with an administrative body to institute administrative proceedings before ORG ( administrative dispute ) in the following situations :

If the appellate body does not issue a decision upon the applicant 's appeal within DATE the applicant may repeat his request , and if the appellate body declines to issue a decision within DATE the applicant may lodge a claim with ORG .

When a first instance administrative body does not issue a decision and there is no right to an appeal the applicant may directly lodge a request with ORG .

If a first instance administrative body does not issue a decision upon the applicant 's request within DATE in matters where a right to an appeal exists , the applicant may lodge his request to the appellate administrative body . Against the decision of that body the applicant may institute administrative proceedings as well , and if that body has not issued a decision there is a right to institute administrative proceedings under the conditions set out in paragraph CARDINAL ( see above CARDINAL ) .


The applicant is a NORP citizen born in DATE and resident in GPE , GPE , GPE .

The facts , as submitted by the applicant , may be summarised as follows :

The applicant was a solicitor who practised on his own account DATE undertaking principally property transactions and residential conveyancing matters . He was instructed by Mr. PERSON DATE to act upon the sale and purchase of various properties . The purchases were financed by mortgages and the applicant was also instructed by the lending institutions ( including ORG ) to ensure that all legal formalities were complied with .

On DATE , following a jury trial , the applicant was convicted of conspiracy to obtain property by deception contrary to s.CARDINAL(CARDINAL ) of LAW DATE . He was sentenced to DATE imprisonment .

The indictment so far as it is relevant stated as follows :


CASE OF LUPAS AND OTHERS (No. 1) v. ROMANIA

Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Vladimiro Zagrebelsky

The CARDINAL applicants , whose names are listed in the appendix , are the descendants of some of the co - owners of a plot of land of QUANTITY in GPE , on LOC coast .

In a judgment of DATE ORG , ruling on an application for partition of real estate consisting of QUANTITY of land on LOC coast and appurtenant buildings , formerly the property of the late PERSON , noted that some of the heirs had sold their shares of the estate to PERSON , who therefore remained a co - owner of the property in common with CARDINAL other heirs .

With a view to taking the property out of common ownership , ORG divided it into CARDINAL shares , of which CARDINAL were allocated to PERSON , the CARDINAL other heirs being assigned either CARDINAL , CARDINAL or CARDINAL of the property .

Following a further purchase of shares in the estate , PERSON became the owner of CARDINAL of the property , which was now owned in common with CARDINAL other heirs .

By Decree no . CARDINAL of DATE ORG , on a proposal by ORG , expropriated the land in question on public - interest grounds , together with an adjoining plot of land belonging to a third party , with a view to building a military base .

After DATE , once the plan to build a military base had been abandoned , ORG took possession of a large portion of the land that had belonged to PERSON and the other co - owners , while other parts were transformed following consolidation works on the cliff or were allocated to private individuals to build housing .

Following proceedings for the recovery of possession of the plot adjoining the land that had belonged to PERSON and the other co - owners , ORG ruled in a final judgment of CARDINAL DATE that Decree no . PERSON contravened LAW as in force on the date of the expropriation , and ordered the return of the land to the heir of its former owner . The court held , firstly , that the plan to build a military base had been abandoned shortly after the expropriation and , secondly , that the former owner had not received any compensation for the expropriation of his property .

In DATE the applicants PERSON , PERSON , PERSON , PERSON and PERSON , as the children and heirs of PERSON , who had died in DATE , brought an action against PERSON and PERSON , alleging that they had illegally taken possession of a plot of land measuring QUANTITY . m at CARDINAL NORP Street , on part of the land that had formerly belonged to PERSON . The applicants submitted that the plot in question was part of the land of which PERSON had been allocated a CARDINAL share by ORG in DATE and that the ORG had never had valid title to it .

Mr and PERSON applied for the case to be struck out on the ground that the applicants lacked the capacity to take proceedings , firstly because the land in question had been expropriated before PERSON death , and secondly because they had not formally accepted their ascendant 's estate . They submitted that the action was in any event inadmissible in that it had been brought solely by PERSON heirs , without the consent of the heirs of the CARDINAL other co - owners .

The CARDINAL other applicants , PERSON , PERSON , PERSON , ORG , PERSON , PERSON , GPE , PERSON , PERSON , PERSON , PERSON , ORG , PERSON and PERSON , the heirs of CARDINAL of the CARDINAL co - owners in question , applied to join the action , asserting their rights over the plot of land forming the subject matter of the proceedings . They instructed PERSON , the first applicant , to represent them .

According to the information provided by the applicants , the heir of CARDINAL of the former co - owners refused to join their action , while the heirs of another former co - owner could not be traced .

In a judgment of DATE ORG , finding that the first CARDINAL applicants had proved that they were the heirs of PERSON and that the latter had owned a CARDINAL share of the estate of PERSON , dismissed PERSON and PERSON first objection .

NORP However , the court held that the land in issue had not belonged exclusively to PERSON , who had merely been CARDINAL of the co - owners . Accordingly , observing that the consent of the heirs of CARDINAL of the co - owners had not been obtained , the court declared the main action and the application to join the proceedings inadmissible on the ground that , since it entailed a legal transaction disposing of property , an action for recovery of possession of property held in undivided shares could be brought only with the consent of all the co - owners . However , the applicants ' shares represented only CARDINAL of the property in issue .

Arguing that it was not necessary to obtain the consent of all the co - owners since the action for recovery of possession was for the benefit of all of them , the applicants appealed against the judgment to ORG . A hearing was held on DATE , in the absence of the first applicant , and delivery of the judgment was adjourned until DATE , despite a request for additional time which the first applicant maintained he had made in order to be able to instruct a lawyer .

ORG dismissed the appeal . In its judgment it noted , firstly , that in its DATE judgment ORG had not formally divided the co - owned property into individual parts , with the result that it was still held in common despite the creation of shares . It further observed that it was common knowledge that an action for recovery of possession of property held in undivided shares could not be brought by CARDINAL of the co - owners without the others ' consent , since the aim of such an action was not only to protect the ownership of shares but also to secure recognition of title to the property as a whole and its return to the claimant .

CARDINALOn that account , they informed ORG that the heir of CARDINAL of the former co - owners had refused to take part in the proceedings although he had been notified of their existence , and that it had been impossible to obtain the other heirs ' consent as they were scattered across various countries .

In a judgment of DATE ORG dismissed the application , holding that the applicants could not seek recovery of a property held in undivided shares to the detriment and in breach of the rights of the heirs of the other co - owners .

In DATE the applicants PERSON , PERSON , PERSON , PERSON and PERSON brought an action against a commercial company , PERSON , for recovery of possession of a plot of land measuring CARDINAL sq . m at CARDINAL NORP Street , which occupied part of the land that had formed the subject of ORG DATE judgment . They also sought the annulment of the contract signed in DATE by which the company had purchased the land from a third party , asserting that that party had never had valid title to the land in issue .

The commercial company objected that the action was inadmissible in that it had been brought solely by PERSON heirs .

NORP In a judgment of CARDINAL DATE ORG allowed the company 's objection and declared the action inadmissible .

The court observed that the judgment given by ORG in DATE had merely allocated PERSON shares of the land that had belonged to PERSON and that the land had not subsequently been divided into individual parts .

Observing that the aim of an action for recovery of possession of a property held in undivided shares was not only to protect the ownership of a share of the property but also to secure recognition of title to the property as a whole and its return to the claimant , the court concluded that since they had not obtained the consent of all the heirs of the former co - owners , the applicants were not entitled to seek recovery of the land in issue .

The applicants appealed to ORG , which found against them in a judgment of DATE , holding that it was common knowledge that an action for recovery of possession of property held in undivided shares could not be brought by CARDINAL of the co - owners without the others ' consent .

The applicants applied to ORG to have that judgment quashed . They submitted that since individual co - owners could sell their shares without the other co - owners ' consent , there was no cause to prohibit a co - owner from seeking recovery of the entire property held in common in order to protect his ownership of his own shares . They argued that , since an action for recovery of possession that resulted in the return of the property to the co - owners benefited all of them , it was unnecessary to obtain the consent of all the co - owners .

Lastly , they submitted that regard should be had to the particular circumstances of their case , namely that the property had in their view passed illegally into ORG ownership and that it had been difficult , if not impossible , to identify all the heirs of the former co - owners on account of the social and historical circumstances of the period and the time that had since elapsed .

Observing that the proceedings for partition that had ended with ORG judgment of DATE had not resulted in the actual division of the property , ORG ruled that the applicants could not claim exclusive ownership of the land in issue .

Accordingly , pointing out that the unanimity rule precluded a co - owner from engaging in any transaction entailing the administration or disposal of property held in undivided shares without the other co - owners ' consent , ORG dismissed the application in a judgment of DATE .

In DATE the applicants PERSON , PERSON , PERSON , PERSON and PERSON brought an action against CARDINAL parties for recovery of possession of CARDINAL plots of land measuring CARDINAL sq . m and QUANTITY m at CARDINAL Patriei Street , which occupied part of the land that had formed the subject of ORG judgment of CARDINAL DATE .

They submitted that in a DATE decision of ORG one of the third parties had been wrongly granted title to the CARDINAL plots of land , CARDINAL of which had subsequently been sold to the other third party . At the applicants ' request , the action was also directed against ORG .

ORG objected that the action was inadmissible in that it had been brought by the heirs of only some of the co - owners of the land .

The CARDINAL other applicants , PERSON , PERSON , PERSON , ORG , PERSON , PERSON , GPE , PERSON , PERSON , PERSON , PERSON , ORG , PERSON and PERSON , applied to join the action in order to assert their rights over the plots of land forming the subject matter of the proceedings .

In a judgment of DATE ORG declared the action inadmissible on the ground that the aim of an action for recovery of possession of property held in undivided shares was to secure recognition of exclusive title to the entire property and its return to the claimant .

It held that , since they had failed to obtain the consent of all the heirs of the former co - owners , the applicants were not entitled to seek recovery of the plots of land in issue since they were able to claim ownership of only shares of the property .

The applicants appealed against that judgment to ORG , which found against them on DATE . As ORG had done , it based its conclusion on the finding that it was impossible to seek recovery of possession of property held in undivided shares without the consent of all the co - owners .

They further submitted that regard should be had to the particular circumstances of their case , namely that the property had in their view passed illegally into ORG ownership and that it had been difficult , if not impossible , to identify all the heirs of the former co - owners on account of the social and historical circumstances of the period and the time that had since elapsed .

Lastly , they argued that the requirement to obtain the consent of all the co - owners had ceased to apply following the entry into force of PERSON no . CARDINAL on the legal status of immovable property wrongfully seized by the ORG DATE and DATE , which provided for the possibility of restoring ownership of shares of a property held in common .

ORG observed at the outset that the proceedings for partition initiated by ORG judgment of DATE had not resulted in the division of the land . It held that in those circumstances , the applicants ' action did not concern a particular property of which they claimed to be the exclusive owners , but shares that could not be separated from those belonging to the other co - owners .

It also dismissed the argument concerning PERSON no . CARDINAL on the ground that the law had not come into force until after the action had been brought in DATE . It pointed out that in any event , the new rule was applicable only in the context of the special procedure provided for in PERSON no . CARDINAL/CARDINAL , whereas the applicants ' action for recovery of possession had been based on the provisions of LAW .

Accordingly , applying the unanimity rule , ORG dismissed the application in a judgment of DATE .

Although there was no provision in statute law for the application of the rule that an action for recovery of possession of property held in undivided shares had to be brought by all the co - owners , the former ORG held in a judgment of CARDINAL DATE that a single co - owner could not initiate such an action , stating as follows :

“ ... as long as the property remains co - owned in undivided shares , the co - owners ' rights over it are indeterminate and they can not claim exclusive rights over their shares until after the property has been divided , when each co - owner has been granted exclusive ownership of part of it . It follows that CARDINAL [ individual ] co - owner can not seek recovery of a property held in undivided shares prior to its partition , since an action for recovery of possession implies the existence of an exclusive and determinate right , which a co - owner can acquire only as a result of the partition . ”

The case - law developed by the former ORG has been adhered to by the courts with very few exceptions , one being a judgment delivered by ORG on DATE . After recapitulating the unanimity rule , the court held :

“ ... in the instant case , and more generally in the case of actions for recovery of possession of property that was nationalised in the period from DATE to CARDINAL DATE , the legal status of such property and of the persons claiming that it was wrongfully nationalised differs substantially from ordinary cases .

Former owners or their heirs are precluded from applying for partition of the property before seeking recovery of it by the fact that they do not have title to the property until it has been established that it was wrongfully nationalised and that the ORG does not have valid title to it .

In such sui generis cases , actions for recovery of possession are complex and go beyond the standard model ; CARDINAL or more co - owners , but not necessarily all of them , may bring a court action seeking a ruling ... that the ORG does not have valid title to the property ... and , consequently , that the wrongfully nationalised property belongs to the owner or his or her heirs . They may subsequently apply for partition of the property . ”