Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen

The applicant was born in DATE and lives in PERSON .

NORP In DATE the police , at the request of the ORG Attorney , commenced an inquiry into allegations that during DATE , at the beginning of the Homeland War in GPE , a large number of civilians were tortured and killed or detained in GPE , GPE by members of the so - called “ GPE ” ( Milicija “ Autonomne Oblasti Krajina ” ) , where they were allegedly tortured and some of them killed . A large number of survivors and other individuals who witnessed these events were interviewed by the police . A voluminous case file was produced and the inquiry resulted in the supposed perpetrators being identified , among whom was the applicant .

The applicant was arrested on DATE on suspicion that he had committed war crimes against the civilian population and prisoners of war . On DATE the investigation judge of ORG ( istražni sudac ORG ) heard evidence from the applicant in the presence of a defence counsel . The applicant denied the charges . On DATE the investigation judge heard evidence from CARDINAL other suspects .

On DATE an investigation was opened in respect of the applicant and CARDINAL other suspects in ORG in connection with suspected war crimes against the civilian population and prisoners of war in DATE in GPE , GPE .

On DATE and DATE the police interviewed CARDINAL newly discovered potential witnesses .

On DATE the investigation judge requested a report from ORG ( NORP za socijalnu skrb PERSON ) on the PERSON personal circumstances . On DATE the investigation judge scheduled a hearing , with an identification parade , for DATE , and ordered ORG to ensure the presence of CARDINAL other individuals of an appropriate age and physical appearance at the identification parade .

At a hearing held on DATE the investigation judge heard evidence from CARDINAL witnesses and held an identification parade . CARDINAL of the witnesses were asked to identify the applicant and both of them recognised the applicant as a person named PERSON who they alleged had ill - treated prisoners in PERSON in DATE .

On DATE the ORG asked for evidence from CARDINAL witnesses to be heard by the investigation judge .

On DATE ORG submitted their report to ORG on the applicant ’s personal circumstances . The report stated that the applicant and his family , who had left GPE during the Homeland War , had returned to GPE in DATE and since then had lived in their own house in PERSON . Before his arrest the applicant had been employed as a driver in GPE , GPE . On DATE ORG informed ORG that the applicant had been fined twice for minor offences related to road safety and customs regulations . He had no criminal record .

On DATE the investigation judge heard evidence from CARDINAL and CARDINAL witnesses respectively . A voluminous case file was compiled containing evidence from witnesses and a large amount of documentary evidence .

On DATE the applicant and another defendant were indicted before ORG for war crimes against prisoners of war , an offence under LAW of LAW . The applicant was accused of inflicting exceptionally brutal treatment on prisoners of war on several occasions , consisting of beatings with wooden rods and chains , kicking , administering electric shocks , death threats and forcing schoolchildren to urinate on the prisoners .

On DATE the applicant lodged an objection to the indictment ( prigovor protiv optužnice ) . His co - defendant also lodged an objection .

On DATE the President of ORG asked ORG to transfer jurisdiction to another court . This was refused on DATE .

On DATE the objections to the indictment were dismissed by ORG and the indictment became final .

On DATE the President of ORG again asked ORG to transfer jurisdiction to another court . On DATE ORG transferred jurisdiction to ORG ( Županijski sud u ORG ) and the proceedings continued before that court .

A hearing scheduled for DATE was adjourned owing to the absence of the parties .

On DATE the applicant appointed new counsel , who asked ORG to adjourn the trial in order to allow him sufficient time to consult the case file and prepare the applicant ’s defence . For that reason on DATE ORG adjourned the hearings already scheduled for CARDINAL , DATE , DATE and DATE . The hearings were scheduled for CARDINAL , DATE , DATE and DATE .

At a hearing held on DATE ORG dismissed a number of procedural objections put forward by the defence and heard evidence from CARDINAL witness . A hearing scheduled for DATE was adjourned because the defence counsel of both defendants refused to continue to represent them . On DATE ORG appointed legal - aid counsel for the applicant . On DATE the appointed counsel asked to be relieved of his duties . On DATE ORG accepted this request and on DATE it appointed new legal - aid counsel for the applicant . On DATE that lawyer also sought to be relieved of her duties . On DATE ORG refused this request . On DATE counsel again sought to be relieved of her duties , on different grounds from those given in her previous request . This request was accepted on DATE and on DATE new legal - aid defence counsel was appointed .

A hearing scheduled for CARDINAL DATE was adjourned because the applicant ’s counsel did not appear . A hearing scheduled for DATE was adjourned because the case file had been forwarded to ORG upon the applicant ’s appeal against a decision extending his detention ( see below , § DATE ) .

At a hearing held on DATE ORG heard evidence from CARDINAL witnesses , on DATE CARDINAL witnesses and on DATE also CARDINAL witnesses . On DATE ORG commissioned an expert report from a medical expert . On DATE the expert submitted her report .

At a hearing held on DATE ORG heard evidence from the medical expert and at a hearing held on DATE it heard evidence from CARDINAL witnesses .

A hearing scheduled for DATE was adjourned on account of the applicant ’s inability to attend owing to his post - surgery state of health ( see below , § § DATE ) .

At a hearing held on DATE the ORG heard the applicant ’s evidence as to his health and decided to commission a report by a medical expert concerning the applicant ’s health . The report was submitted on DATE . The expert stated that the applicant ’s health was not incompatible with his ability to attend and follow the criminal trial against him ( see below , § CARDINAL ) .

At a hearing held on DATE the records of the identification parade ( see above , § CARDINAL ) were read and CARDINAL witnesses gave evidence .

At a hearing held on DATE ORG decided on a number of procedural objections put forward by the defence . At a hearing on DATE CARDINAL witnesses and both defendants gave evidence and the parties gave their closing arguments .

On DATE ORG found the applicant guilty of war crimes against prisoners of war and sentenced him to four years’ imprisonment . At the same time it lifted the applicant ’s detention .

On DATE and DATE respectively the applicant and the other defendant lodged their appeals . The appeal proceedings are currently pending before ORG .

On DATE the investigation judge of ORG remanded the applicant in custody for TIME . On DATE the investigation judge heard evidence from the applicant in the presence of a defence counsel . The applicant denied the charges against him . On DATE the investigation judge heard evidence from CARDINAL other suspects .

On DATE the investigation judge remanded the applicant in custody for DATE on the grounds that there was a danger of absconding and that the offences allegedly committed by the applicant were serious ones . The relevant part of the decision reads :

“ This court finds that the grounds for detention under LAW and CARDINAL ) of LAW apply ...

The case file shows that the first , second and third suspects lived in GPE for a long time and therefore the circumstances indicated a danger of absconding because they might leave the territory of GPE and thus impede the conduct of these criminal proceedings .

Also , what is at issue is a crime against humanity and international law – a war crime against prisoners of war , liable to DATE imprisonment , which was committed under particularly grave circumstances shown by a reasonable suspicion that the suspects brutally tortured the prisoners , and the injuries thus inflicted caused grave bodily impairments to the majority of the victims , resulting in their permanent grave disability . ”

This decision was upheld by a CARDINAL - judge panel of ORG on DATE which endorsed the reasoning of the investigation judge .

On DATE the investigation judge extended the applicant ’s detention for a further DATE on the same grounds as before . The applicant did not lodge an appeal .

On DATE a CARDINAL - judge panel of ORG extended the applicant ’s detention on the same grounds ( danger of absconding and gravity of offences ) . This decision was upheld by ORG on DATE . The relevant part of the decision reads :

“ This court finds that the fact that the defendants lived abroad for a long time and are charged with a grave criminal offence liable to a lengthy prison term show that if released , they might abscond . Thus , the extension of their detention on the ground under LAW ) of LAW is justified .

ORG ... accepts the first - instance court ’s findings that the conduct of the defendants amounted to an offence committed under particularly grave circumstances , which necessitate their further detention on the ground under LAW CARDINAL(CARDINAL ) of LAW . The defendants are charged with particularly brutal conduct consisting of beatings with wooden sticks , rods and chains , administering electric shocks , throwing cold water over and psychologically torturing war prisoners GPE , GPE and ORG on many occasions in cells , halls and the courtyard of the building where they were detained , which caused grave bodily injuries to the victims . ”

On DATE ORG extended the applicant ’s detention on the same grounds .

On DATE ORG quashed the decision of DATE on formal grounds , namely the absence of the applicant ’s defence counsel from a panel meeting concerning his detention .

On CARDINAL DATE the ORG extended the applicant ’s detention on the same grounds . The applicant did not lodge an appeal .

On DATE and DATE ORG extended the applicant ’s detention on the same grounds . The applicant did not lodge appeals .

On DATE ORG extended the applicant ’s detention solely on account of the gravity of the offences . The relevant part of the decision reads :

“ This panel finds that the grounds for detention under LAW CARDINAL(CARDINAL ) of LAW in respect of the first defendant PERSON still apply on account of the manner in which he had allegedly committed the criminal offences held against him . The factual basis of the criminal offence shows exceptional cruelty and brutality which , in the opinion of this panel , represent an offence committed under exceptionally grave circumstances and that therefore detention is necessary under LAW CARDINAL(CARDINAL ) of LAW .

The record of the hearing held on DATE shows that the first defendant PERSON is a citizen of GPE , that he was employed as a driver before his arrest , that he owns CARDINAL a house in PERSON , and that he is married and the father of CARDINAL children . These circumstances show that he has a connection with GPE and that , despite these criminal proceedings and a risk of imprisonment , the grounds for detention under LAW ) of LAW have not been fulfilled , namely that there are no circumstances indicating a danger of absconding . ”

On DATE ORG upheld this decision , endorsing ORG reasons . The applicant lodged a constitutional complaint .

NORP On DATE the applicant asked for his detention to be lifted .

On DATE ORG dismissed the applicant ’s request and extended the applicant ’s detention on account of the gravity of the charges . On DATE ORG upheld this decision , endorsing ORG reasoning .

At the hearing held on DATE the applicant ’s counsel asked for the detention to be lifted on the ground that he needed medical assistance outside prison , including surgery on his spine . ORG dismissed the request , finding that it was premature , since no surgery had yet been performed on the applicant . On DATE the applicant was admitted to ORG ( GPE lišene slobode , “ the ZPH ” ) . On DATE he was transferred to a civil hospital , where surgery on his spine was carried out on DATE .

On DATE the applicant again asked for his detention to be lifted on health grounds . This was refused by ORG on DATE and the applicant ’s detention was extended for a further DATE . The relevant part of that decision reads as follows :

“ This court finds that the ground for ordering the applicant ’s detention under LAW paragraph CARDINAL(CARDINAL ) of LAW still exists because of ... a suspicion that in the period between DATE and DATE the first defendant , PERSON , as a member of the intervention brigade of ORG so - called GPE , on several occasions brutally ill - treated prisoners of war in the cells , corridor and courtyard of the ORG building by beating them with wooden sticks , rods and chains , kicking them and administering electric shocks until they lost consciousness .

These circumstances indicate utterly cruel and inhuman treatment of the prisoners of war , which significantly exceeded the basic features of the crime in question ... which represent an offence committed under particularly grave circumstances , which clearly warrant that the defendant remain in custody on the grounds under LAW paragraph CARDINAL(CARDINAL ) of LAW . ”

As to the applicant ’s request that his detention be lifted , ORG held :

“ This court finds the first defendant ’s request for his detention to be lifted unfounded . The purpose of placing the first defendant PERSON in FAC is precisely to be able to administer adequate medical care appropriate to his needs and state of health . [ The ORG ] is able to provide continuous monitoring and urgent medical interventions . There it is possible to administer the medical assistance the defendant needs , identical to that which he would receive in any other situation , irrespective of whether or not he is in detention . ”

This decision was upheld by ORG on DATE . The relevant part of the decision reads :

“ ... the finding of the first - instance court that the ground for further detention of the defendant PERSON under CARDINAL paragraph CARDINAL(CARDINAL ) of LAW still applied is correct .

The indictment shows a relevant degree of reasonable suspicion that the defendant PERSON committed the criminal offence under LAW , by which a general statutory condition under LAW paragraph CARDINAL of LAW for extending detention has been fulfilled .

The factual background of the indictment shows that the defendant PERSON , in his capacity as a member of the intervention squad of the so - called LOC A[utonomous ] R[egion ] ORG , in the period from DATE to DATE , together with other members of that militia , on many occasions , in cells , hall and courtyard of the building [ where they were detained ] kicked prisoners and beat them with wooden sticks , rods and chains on the head and body and administered electric shocks until they lost consciousness , all of which resulted in numerous and grave injuries .

The above - described manner in which the offences were committed shows an exceptionally high degree of brutality , ruthlessness , unscrupulousness and cruelty , which surpasses by far the usual manner of committing such crimes and represents an offence committed under particularly grave circumstances which necessitates the defendants’ remaining in custody under LAW paragraph CARDINAL(CARDINAL ) of LAW , as correctly found and explained by the first - instance court in the decision referred to .

The defendant ’s arguments that there was no proof that he had committed the criminal offences at issue are not decisive for deciding on his further detention , because for such a decision the relevant degree of reasonable suspicion suffices , and that suspicion is shown in the indictment .

In considering [ the reasons for ] detention , this panel does not assess evidence and its probative value – that assessment is made by the trial court at the end of the trial .

Contrary to the allegations of the appeal , the extension of his detention on the grounds under LAW paragraph CARDINAL(CARDINAL ) of LAW contravenes neither LAW nor LAW . Unlike the aim of the grounds for detention under LAW paragraph CARDINAL(CARDINAL,CARDINAL and CARDINAL ) of LAW , the aim of the ground for detention under LAW paragraph CARDINAL(CARDINAL ) of LAW is not to remove threats to the efficient and unobstructed conduct of the criminal proceedings but is preventive , intended to prevent the release of individuals who have committed criminal offences such that their release would diminish the reputation of and trust in the justice system by the public . LAW gives only examples of the grounds for detention ( exempli gratia ) and these grounds are not exclusive ( numerus clausus ) . Therefore , LAW paragraph CARDINAL(CARDINAL ) does not contravene the said provision of the LAW . Other security measures under LAW , in view of their essence and character , could not fulfil the same purpose as detention .

The applicant ’s needs as regards medical care may be satisfied with medical treatment in prison , in view of the nature of his illness , and exceptionally by out - patient treatment . ”

On DATE the applicant again asked for his detention to be lifted on health grounds .

On CARDINAL DATE ORG declared the applicant ’s constitutional complaint against ORG decision of DATE inadmissible on the grounds that meanwhile a fresh decision extending the applicant ’s detention had been adopted by ORG on DATE and that therefore the original decision was no longer in effect .

On DATE the applicant ’s request of CARDINAL DATE was dismissed by ORG on the grounds that the applicant ’s health did not require treatment outside prison . The relevant part of the decision reads :

“ As regards the health of the first defendant PERSON ... this panel finds that for now the treatment it requires is not incompatible with his detention . The medical documentation of CARDINAL DATE shows that a haematoma which developed ... in the brain , is slowly diminishing . The neurosurgeons did not recommend surgery but only further supervision and rest . The next examination ... is scheduled for DATE . His health is expected to become stable . ”

On DATE ORG extended the applicant ’s detention on the grounds of the gravity of the charges .

DATE . On DATE , after finding the applicant guilty of war crimes against prisoners of war , ORG lifted his detention . The applicant was released DATE . A security measure of withdrawal of his passport and prohibition on leaving his place of residence was applied . The relevant part of the decision lifting the applicant ’s detention reads :

“ ... there is no ground for further detention of the defendant because the same purpose may be achieved by the use of a preventive measure of prohibition on leaving his place of residence and obligation to report periodically to ORG as well as temporary seizure of his passport . ”

The applicant ’s medical record shows that before his arrest he was suffering from discopathy of the lumbar spinal area .

He was seen by the prison doctor on DATE for severe pain in the lumbar area of the spine and the left leg . He was diagnosed with lumboischialgia ( chronic neck pain ) , and prescribed painkillers and rest . At his next examination on CARDINAL DATE the doctor noted that the pain was decreasing and the same therapy was prescribed . On further examinations by the prison doctor on DATE , CARDINAL , DATE , DATE , DATE and DATE it was noted that the applicant was still suffering pain and he was prescribed various painkillers .

On DATE the doctor recommended that the applicant be seen by an orthopedic specialist . On DATE the applicant stated that he wanted to see a specialist at his own expense at a hospital of his choice . On DATE a trial judge in the applicant ’s case before ORG allowed the request and a visit to a clinic was scheduled for DATE .

At DATE the applicant was sent for an ORG examination of his spine .

On DATE the applicant asked permission to undergo a computer tomography of his spine in a private clinic . The request was allowed on DATE by the trial judge and the visit to the clinic was scheduled for DATE .

On DATE the trial judge allowed the applicant a specialist examination at the expense of ORG .

On DATE the trial judge allowed the applicant ’s treatment in FAC ( ZPH ) at the expense of ORG . The applicant stayed in the ORG from DATE to DATE . He was diagnosed with disc protrusion and surgery on his spine was scheduled for DATE .

On DATE the Rijeka Prison doctor submitted a report on the applicant ’s health to ORG . She stated that he was suffering from disc protrusion and that surgery was scheduled for DATE at a civilian hospital - ORG in GPE ( ORG bolnički centar PERSON ) . She further noted that he had been taking painkillers for a long time and recommended that he rest TIME because he was not able to sit for a long period in the same position .

At a hearing held in ORG on DATE an independent medical expert recommended that a TIME break be taken TIME during the hearing on account of the applicant ’s health problems .

On DATE the trial judge allowed the applicant ’s hospitalisation in ORG in GPE for him to undergo surgery on his spine on DATE .

On DATE the applicant was admitted to the ZPH . On DATE he was transferred to ORG where he underwent surgery on his spine on DATE . On DATE he was returned to the ZPH .

After the surgery the applicant developed a haematoma in the cerebellum . He underwent physiotherapy . A number of laboratory tests were carried out as well as several brain nuclear magnetic resonances , computer tomography of his spine and head , X - ray of his mouth cavity and electrocardiography . He was seen by an oral surgeon , neurologist , physiologist , ophthalmologist and a psychologist . A neurosurgeon examined him on DATE and CARDINAL DATE and DATE .

On DATE he was returned to PERSON .

At a hearing held on DATE in ORG , the trial judge asked for an opinion from a medical expert . On DATE an independent medical expert , who saw the applicant on DATE , submitted his opinion , stating that the applicant ’s health was not incompatible with his ability to attend and follow the criminal trial against him . He further recommended a brain examination at DATE or beginning of DATE , an examination by a neurosurgeon and physiotherapy .

Section CARDINAL of LAW ( Osnovni krivični zakon , Official Gazette no . CARDINAL/CARDINAL ) reads as follows :

Whoever , in violation of the rules of international law , orders the killing , torture or inhuman treatment of prisoners of war , including biological , medical or other scientific experiments , the removal of tissue or organs for transplantation , or the causing of great suffering or injury to their physical integrity or health ; or compels a prisoner of war to serve in the forces of a hostile power , or deprives a prisoner of war of the right to a fair trial ; or commits any of the foregoing acts , shall be sentenced to not less than DATE imprisonment or up to DATE imprisonment .

The relevant part of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) provides as follows :

“ ( CARDINAL ) Where the conditions for ordering detention under LAW have been fulfilled , and where the same purpose may be achieved by other preventive measures under LAW , the court shall order that CARDINAL or more preventive measures are to be applied ...

( CARDINAL ) Preventive measures are :

CARDINAL ) prohibition on leaving one ’s place of residence ;

CARDINAL ) prohibition on being in a certain place or area ;

CARDINAL ) obligation on the defendant to report periodically to a certain person or a ORG body ;

CARDINAL ) prohibition on access to a certain person or on establishing or maintaining contact with a certain person ;

CARDINAL ) prohibition on undertaking a certain business activity ;

CARDINAL ) temporary seizure of a passport or other document necessary for crossing the State border ;

CARDINAL ) temporary seizure of a driving licence .

“ ( CARDINAL ) Detention may be imposed only if the same purpose can not be achieved by another [ preventive ] measure .

( CARDINAL ) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist .

( CARDINAL ) When deciding on detention , in particular its duration , a court shall take into consideration the proportionality between the gravity of the offence , the sentence which ... may be expected to be imposed , and the need to order and determine the duration of detention .

( CARDINAL ) ORG authorities conducting criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review ex officio whether the grounds and legal conditions for detention have ceased to exist , in which case detention shall immediately be lifted . ”

“ ( CARDINAL ) Where a reasonable suspicion exists that a person has committed an offence , that person may be placed in detention :

where there are circumstances which show that there is a risk hat [ the defendant ] will abscond [ is in hiding or his or her identity can not be established etc . ) ;

where the charges relate to murder , robbery , rape , terrorism , kidnapping , abuse of narcotic drugs , extortion or any other offence carrying a sentence of CARDINAL years’ imprisonment , or where detention is justified by the modus operandi or other especially grave circumstances of the offence . ”

The relevant provisions of ORG o izvršavanju kazne zatvora , ORG nos . ORG ) read as follows :

“ ( CARDINAL ) Inmates shall have the right to complain about an act or decision of a prison employee .

( CARDINAL ) Complaints shall be lodged orally or in writing with a prison governor , a judge responsible for the execution of sentences or ORG . Written complaints addressed to a judge responsible for the execution of sentences or ORG shall be submitted in an envelope which the prison authorities may not open ... ”

“ ( CARDINAL ) Inmates shall be provided with medical treatment and proper care of their physical and mental health ... ”

( CARDINAL ) A doctor shall examine a sick or injured inmate ... and undertake all measures necessary to prevent or cure the illness and to prevent deterioration of the inmate ’s health . ”

“ ( CARDINAL ) An inmate has the right to seek a specialist examination if such an examination has not been ordered by a prison doctor .

( CARDINAL ) Temporary release may be allowed on the following grounds :

CARDINAL ) to an inmate suffering from a serious acute illness or whose chronic illness worsens and where his or her medical treatment is not possible in prison .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed

On DATE the applicant company 's premises were expropriated and demolished . The applicant company sued ORG for compensation for the expropriated property . On DATE ORG of LOC allowed the claim and awarded it MONEY ( ORG , CARDINAL ) against ORG .

On DATE ORG of GPE upheld the judgment on appeal . The judgment became enforceable .

On DATE the bailiffs ' service opened enforcement proceedings . They were subsequently stayed at the debtor 's request until DATE .

On DATE ORG of ORG upheld the judgment of DATE in the final instance .

On DATE ORG of GPE stayed the enforcement proceedings until DATE .

On DATE ORG challenged before a court the bailiff 's order to write the debt off its bank account . It also asked the court to stay the enforcement proceedings pending examination of the complaint . On DATE ORG of GPE granted the request for a stay of the enforcement proceedings .

On DATE ORG of LOC held in the final instance that the bailiff 's order had been lawful . On DATE the enforcement proceedings were resumed .

On an unspecified date the applicant company received RUR CARDINAL .

ORG , for a third time , applied to a court for a stay of the enforcement proceedings because it had no available funds . On DATE ORG of LOC allowed the ORG 's request and ordered a stay of the enforcement proceedings until DATE .

On DATE the applicant company and ORG concluded a remission - of - debt agreement . ORG undertook to pay the applicant company ORG CARDINAL,CARDINAL,CARDINAL by DATE . The applicant company agreed to make a charitable contribution of the outstanding amount of RUR CARDINAL,CARDINAL,CARDINAL for the purposes of town development . The agreement continued as follows :

“ [ The applicant company ] undertakes to withdraw and not to resubmit the writ of execution no . DATE , issued pursuant to the judgment [ of DATE ] , and renounces all other pecuniary claims against ORG relating to the demolition of [ the applicant company 's LOC ] and to the circumstances established by the above court judgment . ”

On DATE the applicant company received RUR CARDINAL .

On DATE the applicant company withdrew the writ of execution . On DATE the bailiffs discontinued the enforcement proceedings because the judgment of CARDINAL DATE had been fully enforced .


Violation of Art. 6-1;Pecuniary damage - award

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

In DATE the applicant submitted an occupational injury report ( arbetsskadeanmälan ) to ORG ( PERSON “ the ORG ” ) of GPE in which he requested that his lower back and hip joint problems be considered work - related , thereby making him eligible for occupational injury compensation ( arbetsskadeersättning ) .

In a decision of CARDINAL DATE , the ORG noted that the applicant had carried out heavy work as a slaughterhouse worker until DATE when he had moved to the GPE and worked on renovating walls . In DATE the applicant had informed the ORG that he could no longer carry out his work because of his hip joint problems . Thus , in DATE , he had been granted early retirement pension on the ground that he suffered from lumbar spondylosis and coxarthritis ( a degenerative joint disease of his lower back and right hip ) . On the basis of the above , the ORG considered that it was possible that the applicant ’s work in the GPE had harmed him and , since it could only consider injuries which had occurred while working in GPE , it could not examine the request .

Upon request by the applicant , the ORG , on DATE , reconsidered its previous decision but decided not to change it .

The applicant appealed to ORG ( länsrätten ) of GPE , claiming that his injuries had been caused by his work in GPE . He stated that he had created a company in the GPE to import NORP fibreglass fabric but that , in order to get his business going , he had had to include measuring , installing and painting . However , since he already had pain in his hip joint and lower back , he had not been able to carry out the work and had sold the company . He further added that he had worked in slaughterhouses DATE , which had involved very heavy work in difficult conditions . In support , he submitted a medical certificate from PERSON , who had been working as a company doctor for DATE in the food industry and had been the applicant ’s company doctor DATE . According to Dr S.R. , the applicant ’s injuries were work - related , noting that he had carried animal carcasses and heavy pieces of meat up and down stairs , causing extreme strain on the back , hips , knees and ankles . Moreover , the work had been carried out in humid , draughty LOC and with slippery floors .

On DATE ORG repealed the ORG ’s decision and sent the case back for renewed examination . It found that the applicant ’s injuries could well have been caused by his work in GPE and that the ORG had the duty to evaluate whether this was the case .

To prepare the case , the ORG requested the opinion of CARDINAL of its own medical doctors ( försäkringsläkare ) , PERSON , as to whether the applicant ’s injuries were work - related . The doctor , who was a specialist in orthopaedics , gave his opinion on DATE . It was based on the information in the ORG ’s case - file and stated essentially the following .

It appeared from other medical certificates that the applicant had been healthy until his hip joint problems began in DATE . In DATE his right hip and lower back had been x - rayed , which showed that the hip joint had degenerative alterations , whereas the lower back was not remarked on , having regard to the applicant ’s age . In DATE the applicant had undergone a hip joint operation . In Dr ORG ’s opinion , the applicant suffered from moderate arthritis in his hip joint , which had developed slowly from DATE and thus was age - related , not work - related . In this respect , he claimed that there was no general support in scientific literature for the proposition that elements in the working environment could cause arthritis .

On DATE , the ORG decided that the applicant could not be granted occupational injury compensation as it considered that his injuries were not related to his work in GPE . In reaching its decision , it had put much emphasis on the opinion of Dr S.H. , since he was a specialist in orthopaedics .

The applicant appealed to ORG , maintaining that he was entitled to occupational injury compensation due to his injuries , which were clearly work - related . In support of his appeal , he submitted a medical certificate by PERSON , specialist in orthopaedic surgery , who had treated the applicant . According to PERSON , the applicant had suffered from serious joint arthritis of the right hip when he first met him during DATE , which had led to the operation in DATE . As the illness did not run in the applicant ’s family and it had developed at an earlier age in the applicant than was normal , PERSON considered that it was probable that the injury had been caused by the applicant ’s heavy work in the slaughterhouse . Moreover , in his view , the applicant ’s work in the GPE had in no way affected the development of the arthritis .

The Office disputed the appeal and submitted that PERSON opinion did not clearly show that the applicant ’s work at the slaughterhouse had caused his injuries .

In DATE the applicant contacted ORG and requested that an oral hearing be held in his case so that he could describe his working situation . However , by decision of CARDINAL DATE , the court rejected the request as it found that it was unnecessary with regard to the nature of the subject matter . The applicant was given DATE in which to finalise his submissions .

On DATE , when asked by ORG , the applicant renewed his request for an oral hearing but sent on DATE a fax to the court explaining that he did not request an oral hearing .

On DATE ORG rejected the applicant ’s appeal . It did not question that his work had been of a very heavy nature . However , it noted that it had to be relatively widely accepted that certain factors in the working environment , with a high level of probability , could cause the relevant injuries . In the present case , the court found that the applicant had failed to show that there was a high level of probability that his work at the slaughterhouse had caused his hip joint arthritis .

The applicant made a further appeal to ORG ( kammarrätten ) in GPE , maintaining his claims and adding that he wanted an oral hearing to be held so that he could prove his case , inter alia , by describing his working conditions in the slaughterhouse and developing the medical investigation . In this respect , he referred to LAW and noted that he would later specify whom he wanted to call as expert witnesses .

Furthermore , the applicant submitted another medical certificate which supported his claim that his injuries were work - related . It was written by PERSON , specialist in orthopaedics , who had examined the applicant . In the certificate , PERSON stated that studies existed which indicated a connection between heavy physical work and the development of hip joint arthritis . There were also studies which showed that the risk of developing hip joint arthritis increased with the number of tons that a person lifted during his working life . Having regard to the applicant ’s background , his work at the slaughterhouse and the relatively young age at which he had developed the arthritis , PERSON concluded that there were much stronger reasons in support of a connection between the applicant ’s injuries and his work than against it .

The Office disputed the applicant ’s appeal and the new medical certificate , submitting that the appeal should be rejected .

On DATE ORG rejected the applicant ’s request for an oral hearing as it considered that , with regard to the nature of the subject mater , it was unnecessary to hold a hearing . The court granted the applicant DATE to finalise his submissions in the case .

Subsequently , on DATE , ORG rejected the appeal . Having regard to the medical investigation in the case , in particular the opinion of PERSON , as well as the time aspect ( the applicant had stopped working in DATE at the slaughterhouse but only been operated on in DATE ) , the court found that it had not been shown , with a high level of probability , that the work had caused the applicant ’s injuries .

The applicant appealed to ORG ( Regeringsrätten ) and requested that an oral hearing be held . He stressed that the lower courts had failed to hold a hearing , despite his express request and in violation of LAW . Moreover , he submitted that a hearing was necessary in order for him to describe his working conditions at the slaughterhouse and to be able to question specialists to clarify his injuries and their causes .

On DATE ORG rejected the applicant ’s request for an oral hearing as it considered that there was no need for a hearing before it decided on whether or not to grant leave to appeal . It gave the applicant DATE to submit any additional comments .

On DATE ORG refused leave to appeal .

According to LAW , section CARDINAL , of the DATE LAW , the term “ work injury ” mainly refers to injuries resulting from accidents or other harmful factors at a person ’s place of work . Under the LAW , all gainfully employed persons working in GPE are insured against work injuries . The insurance scheme is administered by the social insurance offices ( as from DATE ORG ) and includes , among other things , compensation for loss of earnings . A work injury must be immediately reported to the employer who is required to notify the social insurance office . The office must obtain a medical opinion concerning the injury . A medical doctor is attached to the office to assist it in medical matters . The assessment of whether an injury qualifies as a work injury , as well as the degree of reduction of a person ’s ability to engage in gainful employment , shall be made on the basis of the available medical opinions , the medical doctor ’s assessment of these opinions and any other relevant information .

For an injury to qualify as a work injury , a causal link must be established between the accident or harmful effect in the workplace and the insured person ’s health problems . What is meant by “ harmful effect ” is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person ( LAW , section CARDINAL , of LAW in its wording from DATE until DATE ) . At the relevant time , the question of whether a particular injury or illness incurred by the insured person was to be regarded as a work injury was subject to the following special rule of evidence . If the insured person had suffered an accident or had been subjected to some other harmful effect at work , his or her medical problems were presumed to have been caused by the accident or the harmful effect if there were substantial grounds in support of such a conclusion ( LAW , LAW , of LAW in its wording from DATE and until DATE ) .

The amendments entering into force on DATE , and which applied to work injury reports that were submitted after DATE , the requirements in LAW , sections CARDINAL and CARDINAL , of the DATE Act were tightened up . This meant , inter alia , that it had to be “ highly probable ” , and not merely “ probable ” that a certain factor in the working environment could cause a person ’s injuries and , thereby , be considered as having harmful effects . The travaux préparatoires ( see the Government Bill CARDINAL/CARDINAL:CARDINAL , pp . CARDINAL and CARDINAL ) state that this implies that the responsible authorities have to consider more extensively than previously whether the exposure to a harmful factor at work has been of such an extent , intensity and duration that from this it can be concluded that the existence of harmfulness is highly probable . Furthermore , the collected knowledge must indicate with a considerable degree of probability that a factor in the environment is harmful . The view that a certain factor is very likely to cause an injury has to be relatively generally accepted . This is the case where substantial knowledge exists , within medical or other science , that a certain factor has such harmful effects . If there is a lack of such support , such as when , for example , there are profound differences in expert opinions , this requirement can not be considered as fulfilled . Thus , the opinion of a specific researcher or medical doctor should not constitute a sufficient basis for a positive decision on the issue of harmful effects .

The travaux préparatoires also state that the tightened requirement of harmfulness in many cases presupposes more careful investigations at workplaces regarding the harmful factors invoked and that the question of the causes of certain diseases has to be discussed more thoroughly . This , in turn , will result in the social insurance offices and the courts basing their decisions more extensively on different assessments of harmfulness within medical science .

Section CARDINAL of the Administrative Court Procedure Act ( förvaltningsprocesslagen , Act no . CARDINAL:CARDINAL , as in force at the relevant time ) was worded as follows :

“ The procedure shall be in writing .

Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case , the processing may include an oral hearing regarding certain issues .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . ”

The travaux préparatoires to ORG emphasise that an oral procedure can be advantageous for the investigation of a case in CARDINAL respects in particular . Firstly , such a hearing may be needed in order to examine a witness , expert or party or in cases where a party has difficulty expounding his or her claim in writing . Secondly , an oral hearing may be needed to clarify the positions taken by the parties in the case and perhaps eliminate unnecessary or meaningless points of dispute . In the latter case , the procedure is typically of a preparatory nature . Moreover , the oral form of procedure envisaged in the DATE Act is not to be seen as an alternative to the written form , but rather as a complement to that form ( see the Government PERSON , p. CARDINAL ) .

The possibility of holding an oral hearing in order to promote an expeditious determination of the case , which was first introduced in DATE , was a clarification of a practice that already applied ( see the Government Bill CARDINAL/CARDINAL:CARDINAL , ORG on Justice JuU CARDINAL , Parliamentary Communication CARDINAL , SFS CARDINAL:CARDINAL ) . The purpose of the legislative amendment was to make it clearer that an oral hearing can and should be used for preparatory purposes in certain cases , to make for speedier and more effective proceedings . The amendment was primarily intended for tax cases associated with tax offence cases before courts of general jurisdiction .

Furthermore , the travaux préparatoires to the DATE Act underlined , in connection with the provision in section QUANTITY concerning the right of a party to an oral hearing in certain cases , that while serious consideration should be given to the wishes of a party for such a hearing , the party could hardly be allowed to have a decisive influence in the matter . The question of whether a hearing is necessary should primarily be assessed in the light of the existing investigation of the case , but it should also be possible to accord significance to other factors , for example , if the case is very important for the party and a hearing would give him a better understanding of the import of the decision to be given in the case . CARDINAL particular reason not to arrange an oral hearing could be that the case is of a trivial nature or that the costs of the hearing are high compared to the value of the object of dispute ( see Government PERSON , p. CARDINAL ) .

In DATE ORG has set aside a number of decisions on appeal and referred the case back to the administrative courts of appeal because of the lack of an oral hearing in the lower courts ( see , for example , ORG CARDINAL ref . CARDINAL , BA DATE note DATE , ORG note CARDINAL and ORG DATE note CARDINAL ; as more specifically regards work injuries , see ORG note CARDINAL and RA CARDINAL note CARDINAL ) . In the last mentioned case , an administrative court of appeal had changed the lower court ’s judgment to the applicant ’s disadvantage without holding an oral hearing . Furthermore , the applicant had requested that a medical doctor be heard as a witness .


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

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

“ ... the transfer of the plot and house from the defendant ’s mother to the defendant is not contrary either to the constitutional values or other binding regulations since the defendant , as heir , is eligible to have the land , which can not be subject to any legal transaction , transferred to him ... the first - instance court ignored the fact that the claim had not been submitted against the other party to the contract ... ”

“ ... a question arises as to whether the transfer of the plot and house , under the contract , from the defendant ’s mother to the defendant was contrary to the constitutional values and other binding regulations given the fact that the house had already been demolished when the contract was signed . In order to answer this question correctly , one should consider section CARDINAL of LAW under which rights specified in sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of that LAW can be transferred from the former owner to ... heirs ... Under LAW ( CARDINAL ) of LAW , the former owner has a right to use undeveloped land . LAW ( CARDINAL ) provides for the pre - emptive right of the former owner to construct a family house on building land . LAW , cited above , provides for the right to transfer these rights only to the persons enumerated therein . That means that undeveloped building land can be transferred . The first - instance court established that the plot in question was undeveloped given the fact that the house had been demolished when the contract was concluded . Having regard to the relevant provisions of LAW , cited above , the transfer of the right of construction to the defendant , as heir , when the gift contract was concluded between the defendant and his mother , was allowed . ”

The court further accepted the defendant ’s arguments that it was not possible to sue Ms GPE , who had died in DATE , and that her heirs should , therefore , take her place . On an unspecified date the applicant specified his claim , introducing PERSON , ORG daughter , as a co - defendant .

“ On the basis of the established facts , ORG found that the first - instance court had erred on the law , namely that the gift contract was not contrary to the constitutional values and binding regulations , despite the fact that the house did not exist when the contract was concluded . Under section CARDINAL of LAW of DATE , the former owner could transfer the rights set forth in sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of that LAW only to ... heirs ... , who could no longer transfer it to other persons . Under LAW ( CARDINAL ) of LAW , the former owner has the right to use undeveloped land . LAW ( CARDINAL ) provides for the pre - emptive right of the former owner to construct a family house on building land . Since the defendant is among the persons enumerated in CARDINAL of LAW , the court considers that transferring the right of construction to the defendant , as heir , when the gift contract was concluded between the defendant and his mother , was allowed . ”

Section CARDINAL § CARDINAL ( CARDINAL ) of LAW , in force at the time , provided , inter alia , that a judge could not sit in a case if he or she had participated in the rendering of any decision by a lower court or another body in respect of the same case .

The provisions concerning the legality review request relevant to the present case were described in the ORG judgment ( see PERSON v. the former GPE , no . CARDINAL , § § DATE , CARDINAL DATE ) .

Section CARDINAL of LAW of DATE , in force at the time , specified the conditions under which a contract was regarded as null and void .


In DATE the applicant was convicted of speculating in gold and sentenced to a term of imprisonment . In DATE his conviction was annulled as unlawful . Subsequently the applicant instituted civil proceedings , seeking various kinds of compensation for his unlawful conviction and punishment .

On DATE ORG ( GPE районний суд PERSON області ) awarded the applicant CARDINAL hryvnyas ( ORG ) against ORG ( “ the Ministry ” ; ORG ) in compensation for his loss of income while in detention .

This judgment became final and on DATE the bailiffs instituted enforcement proceedings . They submitted the enforcement writ to ORG , which redirected it to ORG ( ORG ) .

On DATE the enforcement writ was returned to the applicant unenforced .

On CARDINAL DATE ORG awarded the applicant ORG DATE against ORG ( “ the ORG ” ; PERSON казначейства в Хустському районі PERSON області ) in compensation for the gold confiscated from him following his conviction . This decision became final .

On DATE the ORG informed the applicant that it could not make the payment without the command of the bailiffs . In connection with this , ORG had transferred the applicant 's request for enforcement and a copy of the judgment to the bailiffs and had requested ORG to transfer the enforcement writ thereto .

On DATE the ORG informed the applicant that it had never issued the enforcement writ as the applicant personally had never requested the court to do so .

The judgment of CARDINAL DATE remains unenforced .

On DATE the GPE ORG awarded the applicant ORG CARDINAL against ORG in moral damages for a delay in the enforcement of the judgment of DATE .

NORP This decision became final in DATE and on DATE the enforcement proceedings were instituted . On several occasions the ORG informed the applicant that the judgment award could not be paid on account of the lack of budgetary allocations .

On DATE ORG ( “ the ORG ” ; GPE суд GPE області ) gave the applicant , who sought to obtain a higher amount of compensation , leave to appeal against the judgment of DATE out of time .

On DATE ORG , following the applicant 's appeal , reviewed the facts of the case in their entirety and quashed the judgment of DATE . The court rejected the applicant 's claims against the ORG as lacking statutory basis under domestic law . On DATE ORG rejected the applicant 's request for leave to appeal in cassation .

The applicant made several unsuccessful attempts to institute civil proceedings against various authorities , seeking compensation for the delays in the enforcement of the judgments in his favour .

The relevant domestic law is summarised in the judgment of PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .


Violation of Art. 6-1;Violation of Art. 13+6-1

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in Vlore .

In DATE the applicant was appointed a judge at LOC . In DATE a disciplinary inquiry was opened against her by the inspectors of ORG ( “ HCJ ” ) . On the basis of the results of this inquiry , the prosecutor 's office was asked to open a criminal investigation against the applicant . The investigation was opened on DATE . This resulted in the applicant being suspended from work on DATE .

On DATE the prosecutor discontinued the criminal investigation for lack of evidence . However , on DATE the HCJ , during the applicant 's absence on sick leave , dismissed her on account of flagrant violations of professional discipline . The records of previous HCJ meetings indicated that the applicant had been summoned on several occasions to appear before it . However , she was on extended sick leave because of depressive neurosis . The HCJ continued the proceedings in absentia .

On DATE the applicant challenged the HCJ 's decision of DATE by filing an appeal with ORG , which was competent to determine issues of both fact and law . On DATE ORG rejected the appeal .

The applicant 's subsequent constitutional complaint to ORG was accepted on DATE . ORG found violations of LAW given the in absentia proceedings . It quashed both decisions ( of ORG and the HCJ ) and remitted the case for re - examination to the HCJ .

NORP In response to the applicant 's request for reinstatement at FAC , the President of ORG replied on DATE that he was not competent to consider her request .

On DATE the applicant filed a request for reinstatement with the HCJ . She requested that the HCJ re - hear her case in accordance with ORG decision .

On DATE the HCJ decided to dismiss the applicant on account of flagrant violations that seriously discredited the position and image of a judge . The applicant appealed to ORG .

On DATE ORG quashed the HCJ decision of DATE . It found that the proceedings relating to the disciplinary measure had taken too long and as a result the said measure could not produce any effect and was therefore invalid ( masa disiplinore e marrë tej një afati të arsyeshëm ndaj kësaj gjyqtareje është e paefektshme dhe konsiderohet e pavlefshme ... GPE vendimi i PERSON - së duhet të shfuqizohet ) .

On DATE the applicant was reinstated as a judge at the Vlora ORG .

Following the discontinuance of the criminal proceedings on CARDINAL DATE , the applicant requested the HCJ and the Minister of ORG on DATE to pay her salary arrears for the period during which she was suspended from her duties .

On DATE the applicant , relying on sections CARDINAL and CARDINAL of LAW , lodged an application with the ORG requesting the payment of salary arrears from DATE to DATE and consequential damages . On DATE the ORG ( “ the ORG ” ) decided in favour of the applicant . It found that since the criminal proceedings had been discontinued , the applicant should be paid salary arrears for DATE and DATE in accordance with section CARDINAL of LAW . On an unspecified date the President of the Vlora ORG appealed the decision .

On DATE ORG quashed ORG judgment . It relied on the HCJ 's decision of DATE , by which the applicant had been dismissed from work ( see paragraph CARDINAL above ) . It found that as long as no decision had been taken on the applicant 's reinstatement , she could not benefit from salary arrears .

On DATE the applicant filed an appeal with ORG . She argued that ORG had incorrectly applied the domestic law and had not given sufficient reasons in its decision .

On DATE ORG dismissed the applicant 's appeal finding that it did not contain any lawful grounds of appeal in accordance with LAW ( “ ORG ” ) .

On DATE the applicant appealed to ORG , relying on the same arguments as before ORG . She also alleged that the domestic courts lacked impartiality in the examination of her case .

On DATE ORG , sitting as a bench of CARDINAL judges , dismissed the appeal as manifestly ill - founded .

Article CARDINAL § CARDINAL

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

Article CARDINAL § CARDINAL

“ State bodies shall comply with judicial decisions . ”

Article CARDINAL

“ The Constitutional Court shall determine : ... ( f ) Final complaints by individuals alleging violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

Article CARDINAL

“ CARDINAL . ORG is composed of the President of GPE , the Chairman of ORG , the Minister of ORG , CARDINAL members elected by the ORG and CARDINAL judges of all levels who are elected by ORG . ...

ORG decides on the transfer of judges as well as their disciplinary responsibility pursuant to the law .

A judge may be removed from office by ORG for commission of a crime , mental or physical incapacity , acts and behaviour that seriously discredit the position and image of a judge or professional inefficiency . The judge has the right to complain against this decision to ORG , which decides by ORG . ”

This law governs the overall membership , organisation , functioning and responsibilities of the HCJ , which is chaired by the President of the Republic . Among its chief tasks , the PERSON decides on the appointment and dismissal of judges in respect of courts of first instance and courts of appeal . The law also governs the conduct of disciplinary proceedings against judges . According to the law , it is incumbent upon the Minister of ORG to inspect courts of first instance and courts of appeal . The Minister submits requests for disciplinary proceedings to be taken against judges to ORG , which takes a decision thereon . An appeal against the decision of the HCJ may be lodged with ORG within DATE from the notification thereof .

Section CARDINAL of LAW stipulates that the Chairman decides on the time and date of its meetings , which should take place at least once DATE .

Section CARDINAL of LAW provides that a judge shall be suspended from work when a criminal investigation is initiated against him , until a final decision is taken . In the event the judge is acquitted of the charges by a final court decision , the judge is entitled to resume his position and to full remuneration since the time he was suspended from work .

Section CARDINAL provides that a judge is entitled to obtain the official journals , legal periodicals and bulletins free of charge .

Chapter V of LAW governs the disciplinary responsibility of judges . LAW provides that judges bear responsibility for breaches of discipline and the commission of acts or behaviour that seriously discredit them personally and the authority of justice . LAW , which listed dismissal from work as one of the measures to be taken against a judge for breaches of discipline , was rescinded by ORG decision CARDINAL , dated DATE .

Article CARDINAL regulate the adjudication of administrative disputes . Article FAC provides that a party may bring an action before a court with a view to challenging the administrative body 's refusal to adopt an administrative act .

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

“ Decisions of ORG and ORG may be appealed against to ORG on the following grounds : ( a ) the law has not been complied with or has been applied erroneously ; ( b ) there have been serious breaches of procedural rules ( pursuant to LAW ) ; ( c ) there have been procedural violations that have affected the adoption of the decision . ... ”

LAW of decisions

“ CARDINAL . ORG judgments are binding .

The execution of ORG judgments is ensured by ORG by virtue of respective ORG administration bodies .

ORG may assign another body responsible for the execution of its judgment and , as necessary , the method of its execution .

The persons who do not enforce or prevent the enforcement of ORG judgments , when their action does not constitute a criminal offence , are liable to a fine ( ... ) imposed by the President of ORG , whose decision is final and constitutes an executive title . ”


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

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

The applicant was convicted of aggravated sexual assault on his then DATE stepdaughter , by a judgment of ORG ( käräjäoikeus , tingsrätten ) of PERSON issued on DATE . He was sentenced to CARDINAL months’ imprisonment and ordered to pay compensation amounting to CARDINAL NORP Marks ( ORG ; MONEY ( ORG ) ) to the complainant . The case was heard in camera before ORG and the court documents were ordered to be kept secret until DATE .

The alleged offence ( principally forced oral sex ) had taken place repeatedly in the family home over a period of DATE beginning on DATE .

The pre - trial investigation of the alleged offence began when the complainant , i.e. the applicant ’s stepdaughter , reported it to the police on DATE . DATE , she had mentioned the alleged offence on separate occasions to CARDINAL confidantes .

ORG heard the testimony of the complainant and of the aforesaid confidantes , as well as that of the defendant ’s wife and of others more distantly connected with certain details pertaining to the matter . The defence disputed that the complainant and the applicant had ever been alone together in the place where the offence was alleged to have occurred . The evidence of the applicant ’s wife did not support his claims in this respect .

ORG also had before it a medical certificate issued by the physician who attended to the complainant because of an illness she had . This medical certificate charted the progress of her illness over the period from DATE until DATE . Although the physician was unable to draw from his observations any inference concerning the alleged offence , ORG , according to the applicant , found that the medical certificate supported the complainant ’s view in the matter .

On DATE the applicant appealed to ORG ( hovioikeus , hovrätten ) , annexing his wife ’s statement in which she changed her position so as to support the applicant . An oral hearing was also requested .

On DATE , i.e. after the expiry of the time - limit for adducing written submissions to ORG pursuant to LAW , LAW , the applicant ’s ex - wife submitted a letter to ORG , retracting her previous submission . She explained that she had instigated divorce proceedings and could now think more clearly about the events .

In its judgment of DATE ORG , without having held an oral hearing , upheld ORG judgment .

The applicant learned about his ex - wife ’s submission of CARDINAL DATE and of her changed position from ORG aforementioned judgment , in which it was stated as follows :

“ [ The applicant ’s ex - wife ] has , in her statement submitted to ORG , announced that she wants to retract her earlier written statement which was annexed to [ the applicant ’s ] letter of appeal and which she had , in her view , signed under heavy pressure . Therefore , there is no reason to doubt that her statement given at ORG was not accurate . It is manifestly unnecessary to request [ the applicant ’s ] comments on the statement . ... Thus , the request to hold an oral hearing is rejected as unfounded . ”

On DATE the applicant applied to ORG ( korkein oikeus , högsta domstolen ) for leave to appeal raising , inter alia , questions concerning the overall evaluation of the evidence and maintaining that ORG should not have accepted the withdrawal of the affidavit of CARDINAL DATE without giving him an opportunity to comment on the matter . ORG refused the applicant leave to appeal on DATE .

After having served his sentence for his offence the applicant was expelled from GPE . The expulsion was enforced in DATE .

LAW , section CARDINAL(CARDINAL ) of LAW ( oikeudenkäymiskaari , rättegångsbalken , as in force at the relevant time ; DATE ) provided that a court of first instance may not use as evidence written affidavits , submitted for the purposes of pending or incoming proceedings , unless this is specifically provided for in the law or authorised by the court . Subsection CARDINAL ( as in force at the relevant time ; CARDINAL/CARDINAL ) provided that in case a superior court of law relies on an affidavit referred to in subsection CARDINAL and the court finds that attention must be paid to it , the person who has given the affidavit shall be heard as a witness either before the superior court or before a court of first instance designated by the superior court .

According to LAW , LAW ( as in force at the relevant time ; ORG ) , ORG had the possibility , on special grounds , to take into account written submissions or other documents provided by a party to the ORG after the expiry of the time - limit .

According to LAW , section CARDINAL of LAW ( as in force at the relevant time ; GPE ) , if ORG took into account such evidence submitted after the expiry of the time - limit , ORG had to request the parties to submit written observations unless it was manifestly unnecessary .

ORG issued a precedent on DATE concerning ORG obligation to communicate to the parties a statement invited on ORG own motion ( ORG ) . Paragraph CARDINAL of the decision reads as follows :

“ [ CARDINAL appropriate proceedings in court require that the court decision is based on only such files which have been available to the parties of the legal proceedings and which they have also had the opportunity to examine . The parties accordingly have the right to be informed of the contents of a document submitted to the court , even if it according to section CARDINAL of LAW should be kept secret , because only in this way can they be safeguarded a sufficient possibility to participate in the proceedings . The precondition to disclosure of this otherwise secret case - file to the parties is not that the court decision is based on such a file . It is already sufficient that the document may have or may have had an effect on the proceedings in the case and on the decision made in relation to it . Also in this respect , the parties as well as the court shall have the possibility to consider the significance of the case - file submitted to the court in the case . ”


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

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

In DATE the applicant sustained injuries in a car accident caused by an employee of a certain company . The applicant sued the company in ORG ( Sąd Rejonowy ) . In DATE the court granted the applicant a DATE allowance compensating him for loss of his ability to work ( renta uzupełniająca ) .

On DATE the applicant filed an action with ORG . He asked the court to increase his allowance but he did not specify the value of the claim .

On DATE the court ordered the applicant to specify , within DATE , the value of the claim . The applicant submitted the required information on DATE .

The first hearing was held on DATE but the applicant failed to appear .

On DATE the court held a hearing and again ordered the applicant to specify the value of his claim .

On DATE the case was transferred to ORG ( Sąd Wojewódzki ) , since , given the value of the claim , ORG was no longer competent to deal with the subject matter .

Subsequently , the applicant withdrew the power of attorney granted to his lawyer and FAC ( Okręgowa PERSON ) appointed another counsel for him .

DATE and DATE ORG held CARDINAL hearings .

On DATE the ORG gave judgment and granted the applicant ’s claim .

On DATE the applicant challenged the impartiality of all the judges sitting in ORG . He also asked for his officially appointed lawyer to be replaced .

On DATE the applicant made a second challenge to the impartiality of the judges .

On DATE , upon the applicant ’s appeal , ORG ( Sąd Apelacyjny ) quashed the first - instance judgment and remitted the case .

On DATE , CARDINAL DATE , DATE and DATE ORG held hearings .

Meanwhile , the applicant made CARDINAL more challenges to the impartiality of ORG and asked that the judges be disqualified from dealing with his case .

On DATE the applicant modified his claim .

On DATE the ORG delivered judgment . On DATE , ruling on the applicant ’s appeal , ORG upheld the first - instance judgment .

On DATE the applicant lodged a cassation appeal . On DATE ORG transferred the case to ORG . On DATE a single judge sitting in camera as ORG dismissed the applicant ’s appeal as being manifestly ill - founded .

A cassation appeal was introduced to LAW in DATE . Under the provisions applicable until DATE , a party to civil proceedings could lodge a cassation appeal with ORG against a final judicial decision of a second - instance court . Such an appeal had to be examined at a public hearing . This had created inevitable organisational problems , as the judges of ORG were overburdened by the number of cassation appeals which they had to deal with .

On DATE the Code of Civil Procedure was amended . The amendment provides for a preliminary examination of cassation appeals . A single judge sitting in camera as ORG may refuse to entertain a cassation appeal if that appeal is manifestly ill - founded . Where a cassation appeal has been admitted , it is further examined by a panel of CARDINAL judges at a public hearing . However , the relevant transitional rules did not explain clearly whether the new procedure should also apply to cassation appeals lodged before DATE . On DATE ORG adopted a resolution ( no . III CZP CARDINAL/CARDINAL ) and answered this question in affirmative . The court stressed , inter alia , that the amendments to LAW made it possible to deal with enormous backlog of trivial or manifestly ill - founded cassation appeals .

Under Section CARDINAL of the Code of Civil Procedure , a court which has given the contested decision is competent to decide whether all formal requirements for a cassation appeal have been complied with . If an appeal has complied with the formal requirements , the case shall be transferred to ORG .


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

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

On DATE , upon the applicant ’s request , the Director of ORG ( FAC ) issued a decision and ordered division of the applicant ’s property into a number of smaller plots , designated for construction purposes . By the same decision CARDINAL of these plots were expropriated and acquired by the FAC municipality , for the purpose of road construction . The applicant did not appeal against this decision and consequently , it became final on DATE .

On DATE the Director of ORG determined the amount of compensation to be paid to the applicant for the expropriated plots at PLZ ( old zlotys ) CARDINAL . The applicant contested this decision and asked for a new expert opinion in order to re - assess the value of the plots .

In view of the new expert opinion , on DATE the Director of ORG set the amount of compensation to be paid to the applicant at PLZ MONEY . ORG ( Zarząd Miasta ) lodged an appeal against this decision with the Governor of FAC . On DATE the Governor of ORG upheld the contested decision . ORG appealed to ORG ( PERSON ) . On CARDINAL DATE ORG quashed the contested decision . The court ordered that the amount of compensation to be paid to the applicant should be reconsidered by the second - instance authority .

On DATE the FAC Governor quashed the first - instance decision of DATE and remitted the case to the first instance authority . On DATE the Director of ORG for the third time set the amount of applicant ’s compensation , this time at PLZ CARDINAL,CARDINAL,CARDINAL . Both , the applicant and ORG appealed

On DATE the Governor of ORG ( PERSON ) , acting of his own motion , considered that the expropriation decision of DATE had been given in a flagrant breach of substantive provisions of administrative law . In the Governor ’s opinion acquisition of lands for road construction by municipalities should have been done by way of a civil contract between the applicant and the municipality . Expropriation would only have been possible had the applicant refused to accept conditions of the proposed contract . However , due to the fact that some of the plots as created by the DATE decision had already been sold by the applicant , the Governor refused to declare this decision null and void as it had already created irreversible legal consequences .

The applicant lodged an appeal against this decision . On DATE the Minister of ORG ( Minister PERSON i GPE ) quashed Governor ’s decision of DATE and remitted the case .

On DATE the Governor of ORG stayed the compensation proceedings until termination of the proceedings concerning the validity and lawfulness of the expropriation decision of DATE .

On DATE the Governor of ORG declared the decision of DATE null and void in so far as it concerned expropriation of the plot no . CARDINAL/CARDINAL , designated for broadening of an existing street . It was further stated that the plot no . CARDINAL/CARDINAL should be acquired again by the municipality by entering into a civil contract with the applicant or , in the absence of an agreement on the price , by a new expropriation decision , as provided for by the DATE Land Administration and Expropriation Act .

The applicant appealed against this decision , submitting that as a result of this decision the plots sold to third parties would lose access to a public road , which they had had through the plot no . CARDINAL/CARDINAL .

On DATE the Director of ORG ( Prezes Urzędu Mieszkalnictwa i PERSON ) quashed the contested decision and remitted the case to the Governor of ORG for reconsideration .

On DATE the applicant lodged an appeal with ORG against the decision of DATE alleging that it was in breach of substantive administrative law . On DATE ORG dismissed the applicant ’s appeal , considering that the decision was given in compliance with the law . As a result of this decision , the FAC municipality was to return the plot no . CARDINAL/CARDINAL to the applicant .

On DATE the Governor of ORG discontinued the proceedings in which the validity of the DATE division and expropriation decision was examined . The case was subsequently transmitted to ORG ( PERSON ) .

On DATE the ORG of Appeal declared the decision of DATE null and void in so far as it concerned expropriation of the plot no . CARDINAL/CARDINAL , finding that it had been issued in a breach of the DATE Act on land administration and expropriation . ORG refused to declare this decision null and void in its entirety , despite its legal flaws , because of the irreversible legal consequences that had ensued .

As a result of this decision the plot no . CARDINAL/CARDINAL was returned to the applicant .

On DATE ORG dismissed the applicant ’s appeal against the decision of DATE . The court held that applicant had failed to comply with the formal requirements attached to this remedy , as she had not lodged a request to have the decision reconsidered by ORG . This decision is final .


The applicants , ORG and PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in PERSON , a village attached to the district of Uludere in GPE . They were represented before the Court by Mr PERSON , a lawyer practising in GPE .

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

On DATE the first applicant ’s husband and the second applicant ’s son were , along with other passengers , set out from Uludere by a vehicle . On their way to Şırnak their vehicle hit a mine placed on the road . All the people in the vehicle died as a result of the explosion .

ORG initiated an investigation into the incident .

On DATE ORG issued a decision to the effect that he had no jurisdiction ( görevsizlik kararı ) in the matter . The prosecutor considered that the mine , which caused the death of CARDINAL people , was placed on the road by the members of the ORG . In view of the nature of the offence and the existing evidence , the investigation into the incident fell within the competence of the prosecutor ’s office at ORG . The decision declining jurisdiction named the suspects as unidentified members of the ORG .

On DATE the applicants lodged a petition with the office of the public prosecutor attached to ORG in ORG and requested the public prosecutor to be informed about the activities undertaken in the investigation . The public prosecutor replied on DATE that the investigation was ongoing without stating any further information as to the details of this investigation . Since then the applicants have not received any information about the investigation .

LAW ( Türk Ceza Kanunu ) , as regards unlawful killings , has provisions dealing with unintentional homicide ( Articles CARDINAL and CARDINAL ) , intentional homicide ( Articles CARDINAL ) and aggravated murder ( Article CARDINAL ) .

Pursuant to ORG CARDINAL and CARDINAL of LAW ( Türk Ceza Muhakemeleri Usulü Kanunu ; hereinafter referred to as “ ORG ” ) , complaints in respect of these offences may be lodged with the public prosecutor . The complaint may be made in writing or orally . In the latter case , such a complaint must be recorded in writing ( LAW . The public prosecutor and the police have a duty to investigate crimes reported to them ( LAW ) .

If there is evidence to suggest that a deceased has not died of natural causes , the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( LAW . Pursuant to LAW , any public official who fails to report to the police or a public prosecutor ’s office an offence of which he has become aware in the exercise of his duty shall be liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators ( LAW ) . The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect ( LAW ORG ) . If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings , the public prosecutor may close the investigation . However , the public prosecutor may decide not to prosecute if , and only if , the evidence is clearly insufficient .

Insofar as a criminal complaint has been lodged , a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings . This appeal must be lodged within DATE after notification of this decision to the complainant ( LAW ORG ) .

LAW provides as follows :

“ All acts and decisions of the administration are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

This provision is not subject to any restriction even in a state of emergency or war . The second paragraph does not require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

Pursuant to LAW , anyone who suffers damage as result of an illegal act or tort act may bring a civil action seeking reparation for pecuniary damage ( ORG CARDINAL - CARDINAL ) and non - pecuniary damage . The civil courts are not bound by either the findings or the verdict of the criminal court and the issue of the defendant ’s guilt ( Article CARDINAL ) .