CASE OF MALIKA DZHAMAYEVA AND OTHERS v. RUSSIA

Violation of Art. 2 (substantive aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13

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

The applicants are :

CARDINAL ) PERSON , born in DATE

CARDINAL ) Ms Kheda GPE , born in DATE ,

CARDINAL ) NORP Mr PERSON , born in DATE , and

CARDINAL ) NORP Mr PERSON , born in DATE .

The applicants live in GPE - Yurt , in GPE .

The first applicant is the mother of PERSON , born in DATE . The second applicant is PERSON wife and the third and fourth applicants are their children .

At the material time the first applicant lived with her son PERSON , the second to fourth applicants and other relatives at CARDINAL LOC ( in the submitted documents the address is also referred to as TIME and CARDINAL FAC ) , ORG , in LOC of GPE .

On TIME the above - mentioned persons and PERSON were staying at the applicants ' house .

DATE on DATE a convoy of military vehicles , including an armoured personnel carrier ( ORG ) and PERSON and ORG vehicles , arrived at the applicants ' gate . The vehicles had no registration numbers . A group of CARDINAL to thirty armed masked men in camouflage uniforms got out of the vehicles . Some of them stayed outside , securing the perimeter of the applicants ' house .

At TIME on DATE the first applicant was woken up by the barking of her dog . Shortly afterwards CARDINAL or CARDINAL armed masked men in camouflage uniforms and bullet - proof jackets burst into the house .

NORP The intruders did not introduce themselves or explain the reason for their actions . They pointed their guns at the first applicant and her relatives and ordered them in unaccented NORP to get outside . The applicants inferred that the intruders were servicemen . In the courtyard the first applicant saw a large group of armed servicemen in camouflage uniforms and masks . The servicemen tied the first applicant 's and her relatives ' hands with adhesive tape . They also tied the first applicant and her other son , PERSON . PERSON , to a shed post . The first applicant 's CARDINAL - year - old motherinlaw , PERSON , stayed in the house . In a state of stress , PERSON started shouting and the servicemen hit her several times with their rifle butts .

Meanwhile some of the servicemen who were in the house started searching it and some burst into the room where the second to fourth applicants and PERSON were staying . They pointed their guns at the second applicant and ordered her in unaccented NORP to stay quiet . The servicemen then ordered PERSON to lie down . After a quick search of the room they took PERSON , who was in his underwear , to the yard . The second applicant tried to follow them but was forced back into the room under the threat of being shot dead . In the yard one of the servicemen took the tape off the first applicant 's mouth and asked her where her husband was . She replied that she did not know and that he had left the family in DATE .

Having checked the house and attic , the servicemen started beating PERSON up , requesting him to give them his passport . He replied that the first applicant had it . The servicemen untied her hands and brought her into the house . In the house she saw her mother - in - law PERSON , who was leaning against the wall and coughing up blood . The first applicant gave PERSON passport to the servicemen . At that moment CARDINAL of the servicemen in the yard ordered the others to retreat . While the first applicant looked back to where PERSON was standing , she saw that the latter had fallen to the ground . Shortly after this the first applicant heard military vehicles . She realised that the servicemen were taking PERSON away and asked them not to . They ordered her to remain silent and then CARDINAL servicemen took the first applicant and her other son into the passageway , tied their hands and legs with adhesive tape and put them on to the floor . After asking the first applicant “ What is wrong with your granny ? ” and received the reply that she was DATE disabled , the servicemen closed the door and left , taking PERSON with them .

The abduction of PERSON was witnessed by a number of the applicants ' neighbours .

At TIME on DATE the applicants ' neighbour A.Kh . , who lived in LOC , was woken up by the noise of military vehicles . When he went outside he saw a convoy consisting of an ORG with a large number of servicemen on it and PERSON and ORG vehicles on LOC . He immediately went back into his house . TIME later he again heard the noise of the vehicles coming from the street . When he looked outside his window , he saw the same vehicles reversing . Shortly after this his nephew PERSON came to his house and told him that NORP servicemen had taken away PERSON and that they had killed PERSON

During TIME DATE PERSON , who lived at CARDINAL LOC , was woken up by the noise of vehicles . When she looked outside the window , she saw an ORG , a white PERSON vehicle , a lightcoloured UAZ vehicle and a large group of armed masked men going towards the applicants ' house . The vehicles had no licence plates . A group of servicemen secured the perimeter of the house . PERSON went home to get dressed but when she got outside , the ORG was already driving back and the servicemen sitting on it pointed their guns at her . Once the ORG had moved away , PERSON went to the applicants ' house and was told about the abduction of PERSON and the murder of PERSON

On TIME DATE TIME was woken up by noise coming from the applicants ' house . When he came closer to the applicants ' house through his vegetable garden he saw PERSON and ORG vehicles parked at the applicants ' gate . Afraid to approach closer , he returned home . TIME later GPE came to his house and told him that servicemen had abducted PERSON and killed PERSON

The description of the events of DATE is based on the first applicant 's submissions in her application forms of CARDINAL May and DATE and the applicants ' account given in the application form of DATE ; accounts given to the applicants ' representatives by the following witnesses : an account by ORG given on DATE ; an account by CARDINAL . given on DATE ; an account by PERSON given on DATE ; an account by CARDINAL given on DATE ; an account by the first applicant made on DATE , and an account made by the second applicant on DATE .

The applicants have had no news of PERSON since DATE .

The Government did not dispute most of the applicants ' submissions but claimed that the domestic investigation had established neither the implication of servicemen in the abduction of PERSON nor that the abductors had used military vehicles .

After the departure of the servicemen on DATE with PERSON a number of neighbours gathered at the applicants ' place . Meanwhile the first applicant 's other son , GPE , untied her . Immediately thereafter the first applicant and PERSON ran after the military vehicles , which they saw going into FAC . On their way the women alerted the local police inspector , GPE , who lived QUANTITY from the applicants ' house , about the abduction of PERSON . PERSON did not say anything to the women and went back into his house .

Shortly after this the first applicant asked her neighbour , FAC , for help . He promised her to follow the servicemen in his private car and told her to go home , which she did .

When she arrived home the first applicant discovered that her mother - in - law was dead .

At TIME on DATE police officers of ORG of the ORG ( ROVD ) , including local police inspector PERSON , came to the applicants ' house . They interviewed the applicants and some of their neighbours and left .

On DATE a group of police officers visited the first applicant and told her to come to the ROVD .

At the ROVD an officer brought the first applicant to the head of the criminal police department , PERSON told her that PERSON was in good health , that he was not under the control of the ROVD but that the ROVD was in contact with the “ structures which were holding the first applicant 's son ” . He then asked the first applicant about the whereabouts of her husband , who had participated in illegal armed groups during the first NORP campaign , and explained her that it was in her interest to provide that information . He also asked her if she knew any Wahhabis in her village .

Subsequently , the local police officer frequently questioned the first applicant about her husband , from which she inferred that the authorities had abducted PERSON , because they were still looking for her husband , despite the fact that the latter had been amnestied meanwhile .

On DATE the prosecutor 's office of LOC ( “ the district prosecutor 's office ” ) instituted a criminal investigation into the abduction of PERSON and the causing of FAC 's death under ORG CARDINAL § CARDINAL ( aggravated kidnapping ) and CARDINAL § CARDINAL of LAW , respectively . The case file was given the number DATE .

On DATE the district prosecutor 's office granted the second applicant victim status in connection with the proceedings in case no . DATE .

On DATE the district prosecutor 's office informed the PERSON family that the time - limits for the investigation in criminal case no . DATE had been extended to DATE .

On DATE the military commander of GPE forwarded the first applicant 's complaint about her son 's abduction to the Achkhoy - Martanovskiy district military commander 's office ( the district military commander 's office ) for examination , and ordered the latter body to search for PERSON .

On DATE the district prosecutor 's office replied to the first applicant 's complaint about her son 's abduction and informed her that the complaint had been appended to case file no . DATE ; that on an unspecified date the investigation of the abduction had been suspended , and unspecified operational and search measures aimed at solving the crime were under way .

On DATE the district military commander 's office informed the first applicant that on DATE they had not been conducting any special operations in ORG . The letter also stated that the authorities had forwarded information requests concerning the whereabouts of PERSON to various law - enforcement agencies in GPE .

On DATE , in reply to the second applicant 's request for information , the district prosecutor 's office wrote to her that they had been undertaking unspecified operational and search measures aimed at establishing the whereabouts of PERSON , but that those measures had failed to produce any results . The letter also stated that the investigation in the criminal case could be resumed upon receipt of new relevant information .

On DATE the district prosecutor 's office informed the first applicant that they had undertaken the following investigative steps in criminal case no . DATE : examination of the crime scene ; forensic examination of the body of FAC ; granting victim status in the criminal case to relatives of the disappeared PERSON ; questioning of a number of local residents about the abduction ; collaboration with a number of other law - enforcement bodies to establish the whereabouts of the applicants ' relative . In addition , the supervising prosecutor had issued unspecified instructions aimed at solving the crime and these instructions had been complied with by the investigation . According to the letter , the investigation was examining the theory of the possible involvement of NORP servicemen in the crime , as well as the theory that PERSON had been kidnapped for ransom . Finally , the document stated that the investigation in criminal case no . ORG had been suspended on DATE ; however , the operational and search measures aimed at solving the crime were under way .

On DATE the second applicant wrote to the district prosecutor 's office , requesting information on the progress of the investigation and seeking information on the outcome of her previous enquiries , to which she had received no replies . She submitted that , in the absence of information , she was prevented from challenging the investigation omissions before other authorities . She also sought access to the case file and permission to make copies from it . Lastly , she requested that the investigation be reopened if it had been suspended .

On DATE the deputy prosecutor of the NORP district quashed the decision of DATE to suspend the investigation in case no . ORG as premature and unfounded , finding that the investigation had failed to take all steps necessary to establish the applicants ' relative 's whereabouts and to identify the perpetrators . In particular , the investigation had failed to interview officers PERSON , GPE . , ORG . , and PERSON of the ROVD , who had been on duty on DATE at checkpoint no . CARDINAL , located at the entry to ORG ; it also had not interviewed as witnesses CARDINAL residents of ORG , whose testimony could have had . The investigation also failed to take all measures to identify other witnesses and eyewitnesses to the abduction and the perpetrators . No measures aimed at identifying the owners of the ORG and the PERSON vehicles were taken . The deputy prosecutor ordered the district prosecutor 's office to enlarge the circle of eventual witnesses to the abduction , to take all relevant investigative steps and to coordinate its efforts with other ORG authorities . It is not entirely clear whether the deputy prosecutor 's instructions have been complied with .

On DATE the district prosecutor 's office suspended the investigation in case no . DATE for failure to identify the perpetrators . The decision noted that the investigation had taken a number of investigative steps . In particular , the crime scene had been inspected ; a forensic examination of the body of PERSON had been carried out ; a plan of operational and search measures had been compiled ; the second applicant had been granted victim status and interviewed ; relatives and neighbours of the kidnapped person , as well as residents of ORG and unspecified police officers of the ORG had been interviewed ; servicemen from checkpoint no . CARDINAL had been interviewed ; registration logs from checkpoints located in LOC had been examined ; character references in respect of PERSON had been collected ; and unspecified requests had been sent to various law - enforcement authorities in GPE .

By a letter of CARDINAL DATE investigator PERSON investigating department of ORG with the ORG 's office of GPE ( the investigating department ) replied to the second applicant 's request for information that , until the termination of the investigation , she was only entitled to have access to the documents from case file no . ORG which pertained to the investigative actions taken with her participation , and that she could be provided with access to the entire file only upon the termination of the investigation .

On DATE the second applicant complained to ORG ( ORG ) that the investigating authorities had taken no action in case no . DATE . She submitted , in particular , that the investigator 's refusal to grant her access to the case file had prevented her from getting information on the progress of the investigation into the abduction of her husband and from effectively challenging its omissions before the domestic authorities .

By a decision of CARDINAL DATE ORG granted the second applicant 's claims in part . It held that the investigator 's permission to the applicant to have access only to the records of investigative steps taken with her participation was unlawful and in breach of LAW and the practice of ORG . In particular , it referred to ORG finding that a victim could have access to decisions to charge particular persons with a crime , to the information on the composition of the investigating group , decisions to order various expert examinations and their conclusions and complaints of other participants to the criminal proceedings , if those documents and that information pertained to the victim 's rights and legal interests . It was for the investigator to determine the manner and conditions of a victim 's access to the relevant information , regard being had to the requirements of the interests of the investigation . At the same time , the second applicant 's request for access to all the materials in the case file could not be granted until the investigation had been concluded .

On DATE ORG of GPE dismissed the second applicant 's appeal against the decision of DATE .

The Government did not make detailed submissions on the course of the investigation .

They stated that the investigation had interviewed eyewitnesses to the abduction and over DATE residents of the village ; had inspected the crime scene ; had carried out a forensic examination of the fingerprints left presumably by the abductors ; had examined the body of PERSON , and had sent numerous requests to various ORG authorities in connection with the abduction of the applicants ' relative .

Despite specific requests by ORG , the Government did not disclose most of the contents of criminal case no . DATE , providing only copies of the following documents : the decision to institute the investigation ; the record of examination of the body of PERSON and its photographs ; the crime scene inspection report and a copy of the sketch of the LOC ; the decision to grant the second applicant victim status ; the decision to order a fingerprint examination ; the fingerprint expert 's report ; the forensic report of examination of PERSON , and replies from the authorities mentioned in paragraph CARDINAL below . The Government also submitted interview records in respect of the first and second applicants , ORG , GPE , GPE , PERSON and PERSON and another CARDINAL residents of ORG ( see paragraph CARDINAL below ) . The Government claimed that the documents furnished by them were the only case file materials they could submit to the Court without prejudice to the interests of the parties to the criminal proceedings .

Some of the documents submitted by the Government were illegible and some documents were legible only in part .

The information contained in the documents submitted by the ORG may be summarised as follows .

On DATE officers of the ROVD examined the body of PERSON and photographed it .

On DATE they inspected the crime scene . According to the crime scene inspection report , the entry door to PERSON room was broken and there were tracks described as “ presumably those of an ORG ” in the courtyard of the applicants ' house . It further emerges from the report that some fingerprints were taken during the inspection .

On DATE the ROVD officers interviewed as a witness ORG , who lived at DATE , LOC . PERSON stated that on TIME DATE he went outside to relieve himself . At that moment he heard the noise of an ORG . Immediately thereafter he saw a light - coloured PERSON vehicle without registration plates come into LOC . It was followed by a UAZ vehicle and an ORG . Shortly after this the first applicant came to ORG 's house and told him that her motherin - law had been killed and her son abducted , upon which ORG got into his car and followed the military convoy he had seen before . He caught up with it and saw that it was moving in the direction of ORG . On its way the convoy passed checkpoint no . CARDINAL without being stopped there . When PERSON approached that checkpoint , police officers stationed there stopped him and told him that he could not go any further and that the movement of vehicles was prohibited because of the curfew .

On DATE the investigation interviewed the second applicant as a witness . She submitted that at TIME on DATE she had been woken up by PERSON shouting for help . Immediately thereafter several armed masked men in camouflage uniforms burst into the room she was sharing with PERSON and ordered him in unaccented NORP to lie down and not to move . The intruders then took him outside in his underwear . When the second applicant tried to follow , the intruders threatened her with their guns and ordered to stay inside . When she managed to get outside , she saw GPE , who was untying the first applicant , and PERSON , who was lying on the floor covered in blood . The intruders had arrived on an ORG and in CARDINAL PERSON vehicles without registration plates .

Kh . PERSON , interviewed as a witness on DATE , submitted that he had stayed in the applicants ' house on TIME DATE . At TIME on DATE he had been woken up by the dog barking . Shortly after this a group of CARDINAL to thirty armed masked men in camouflage uniforms burst into the applicants ' property . They tied Kh . PERSON 's and the first applicant 's hands with adhesive tape and put both of them on the floor . Then the intruders took PERSON , who was in his underwear , outside . From the neighbours PERSON . PERSON learnt that the intruders had arrived in an ORG and CARDINAL PERSON vehicles .

PERSON , residing at CARDINAL , LOC Street and interviewed as a witness on an unspecified date in DATE , stated that at QUANTITY on DATE she had been woken up by the noise of military vehicles . When she went outside she saw an ORG with a large group of armed masked men in camouflage uniforms . Shortly afterwards she heard shouting coming from the applicants ' house and subsequently , when she arrived there , she learnt about the killing of PERSON and the abduction of PERSON .

On DATE the investigator in charge of the case ordered a forensic examination of the CARDINAL fingerprints taken in PERSON room during the crime scene inspection . On DATE the expert found that the fingerprints collected were not suitable for identification .

On DATE the investigation interviewed the first applicant as a witness . She stated that at TIME on DATE she had been woken up by the barking of her dog . Shortly afterwards a group of armed masked men in camouflage uniforms had burst into the house . Some of the armed men had stayed in the yard . There were in total CARDINAL of them . The intruders took PERSON outside in his underwear and beat up PERSON , who died as a result of the beatings . According to the neighbours , the armed men had arrived in an ORG and CARDINAL PERSON vehicles . They spoke unaccented NORP .

DATE and DATE and on DATE the investigation interviewed as witnesses CARDINAL residents of ORG . According to their interview records , those persons submitted that they had learnt from the applicants or from other residents of ORG that CARDINAL on DATE a large group of armed masked men in camouflage uniforms , who had arrived in an ORG and PERSON and ORG vehicles , had burst into the applicants ' house , had kidnapped PERSON and beaten PERSON to death .

On DATE the investigation interviewed PERSON , who lived at CARDINAL FAC , as a witness . She submitted that at TIME on DATE she had been woken up by the noise of several vehicles . When she got outside she saw CARDINAL light - coloured PERSON vehicles without registration plates . PERSON heard a walkie - talkie in one of the vehicles but could not catch what the people were saying over it . A man in a camouflage uniform with a sub - machine gun was standing near the vehicles . Suddenly another armed man in camouflage ran to him and ordered him in NORP to get the vehicles to the applicants ' house . When the vehicles arrived there , CARDINAL armed camouflaged men got into them . Shortly thereafter the CARDINAL vehicles started taking off . They were followed by an ORG with several servicemen on it . Once the convoy had left , PERSON ran to the applicants ' house , where she was told that the servicemen had taken away PERSON and killed PERSON

L.M. , interviewed as a witness on DATE , stated that at TIME on DATE he had been woken up by the noise of an ORG . He looked out of the window and saw that an ORG had entered ORG from the direction of ORG and that it was in FAC .

R.A. , interviewed as a witness on DATE , and PERSON , interviewed on DATE , who both lived in FAC , stated that at TIME on DATE they had been woken up by the noise of military vehicles and , looking out of their windows , saw an ORG near the applicants ' house .

According to replies from SIZOs no . CARDINAL of GPE and GPE , PERSON , ORG , ORG and Gudermesskiy interdistrict investigating departments and ORG of the ORG , those ORG authorities had no information on PERSON eventual arrest or detention , his whereabouts or on any criminal proceedings against him . The above - mentioned documents were dated DATE and were sent to the investigating authority in case no . DATE in reply to its requests for information made in DATE .

The Government submitted that the investigation in case no . DATE was pending .

On DATE ORG granted the second applicant 's request and declared PERSON a missing person .

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

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

On DATE ORG , ORG ( ORG fond mirovinskog i invalidskog osiguranja , Područna služba u ORG ) issued a decision granting the applicant the right to a widow ’s ( family ) pension as of CARDINAL DATE . However , no payments were made until DATE .

On DATE the applicant instituted administrative proceedings in order to recover the pension instalments due .

On DATE ORG dismissed her request . It found that the payment of her pension was stopped DATE and DATE since during that period the applicant had resided in the occupied areas of GPE and her address had been unknown . On DATE the applicant appealed against that decision .

On DATE ORG , ORG ( Hrvatski zavod za mirovinsko osiguranje , LOC ORG ) quashed the first - instance decision for factual errors and remitted the case .

In the resumed proceedings , ORG dismissed the applicant ’s request on DATE . The applicant appealed .

On DATE ORG again quashed the first - instance decision and remitted the case .

On DATE ORG for the third time dismissed the applicant ’s request . The applicant appealed .

On DATE ORG for the third time quashed the first - instance decision for factual shortcomings and remitted the case . It instructed ORG to enquire whether the applicant had received a pension from the authorities that had exercised control over the occupied territory .

In the subsequent proceedings , on DATE the applicant lodged an appeal for failure to respond under LAW ( see paragraph CARDINAL below ) since ORG did not render a decision within the statutory time - limit of DATE . Given that ORG also failed to decide on this appeal within the statutory time - limit of DATE , on DATE the applicant brought an action for failure to respond ( see paragraph CARDINAL below ) in ORG ( Upravni sud PERSON ) . The applicant subsequently withdrew this action since in DATE the first - instance decision had been rendered .

On DATE ORG accepted the applicant ’s request in part . It awarded her the pension instalments as of DATE and dismissed her request for the instalments due prior to that date . The applicant appealed .

On DATE ORG dismissed the applicant ’s appeal .

On DATE the applicant brought an administrative action in the ORG challenging that decision .

On DATE the ORG gave judgment dismissing the applicant ’s claim .

On DATE the applicant lodged a constitutional complaint with ORG against that judgment . The proceedings are currently pending before that court .

DATE ( Ustav Republike Hrvatske , ORG no . CARDINAL of DATE ) reads as follows :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

The relevant part of LAW on LAW ( Ustavni zakon o PERSON ) as amended on DATE , ORG nos . CARDINAL of DATE and . CARDINAL ( consolidated text ) DATE “ LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”

NORP The relevant provisions of LAW ( Zakon o općem upravnom postupku , ORG no . CARDINAL of CARDINAL DATE ) provide as follows :

Section CARDINAL(CARDINAL ) provides that in simple matters , where there is no need to undertake separate examination proceedings , an administrative authority shall give a decision and serve it on a party within DATE following the submission of an application . In all other , more complex cases , the authority shall give a decision and serve it on a party within DATE .

Section PERSON ) provides that a party whose application has not been decided and served within the time - limits set out in paragraph ( CARDINAL ) may lodge an appeal ( appeal for failure to respond , žalba zbog šutnje administracije ) as if his or her application had been dismissed .

Section CARDINAL ) provides that the decision on the appeal shall be given and served on a party as soon as possible but at the latest within DATE following the submission of the appeal .

Section CARDINAL ) provides that the second - instance administrative authority deciding on the appeal for failure to respond shall request the first - instance authority to give reasons for its omission . If it finds that the failure to respond was attributable to the party or the reasons for such omission were otherwise justified , the second - instance authority shall order the first - instance authority to give a decision within DATE . If it finds that the omission was not justified , it shall request the case - file .

Section CARDINAL(CARDINAL ) provides that if the case - file contains sufficient information , the second - instance administrative authority shall decide the case . Otherwise , it shall first hear the case and take evidence , and then give a decision . Exceptionally , if it considers that such a procedure would save time and costs , it shall order the first - instance authority to hear the case and take evidence within a specified time - limit , whereupon it shall decide the case itself . Such a decision shall be final .

The relevant provisions of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL/CARDINAL , DATE and CARDINAL ) provide as follows :

Section CARDINAL ) provides that if the appellate authority fails to give a decision on a party ’s appeal against the first - instance decision within DATE , and fails to do so upon a repeated request within a further period of DATE , the party may bring an action in ORG ( action for failure to respond , tužba zbog šutnje administracije ) , as if his or her appeal had been dismissed .

Section PERSON ) provides that when the first - instance administrative authority fails to give a decision against which no appeal lies , the party may directly bring an action in ORG .

Section CARDINAL(CARDINAL ) provides that , in matters where the right of appeal exists , if a first - instance administrative authority fails to give a decision on a party ’s application within DATE , the party may submit his or her application to the appellate administrative authority . Against the latter authority ’s decision the party may bring an action in ORG , and if the authority fails to give a decision , the party may bring an administrative action under the conditions set out in paragraph CARDINAL .

Section PERSON ) provides that when ORG , following the action for failure to respond , finds for the plaintiff , it shall either instruct the respondent administrative authority how to decide the case on points of law , or shall itself rule on the application ( acting as a court of full jurisdiction under paragraph CARDINAL of section CARDINAL ) .

Section CARDINAL ) provides that , in the execution of the judgment rendered under section PERSON ) , the administrative authority shall issue its decision immediately but at the latest within DATE . Otherwise , a party may by a special submission request it to do so . If the authority does not issue a decision within DATE following that request , a party may apply to ORG .

Section CARDINAL(CARDINAL ) provides that if such an application is made , the ORG shall first ask the administrative authority to give reasons for its omission . The authority shall reply immediately but at the latest within DATE . If the authority fails to do so , or if the reasons given do not justify the failure to decide , the ORG shall give a decision entirely substituting for the decision of the administrative authority .

In case no . U - IIIA/CARDINAL/CARDINAL of DATE , ORG was seized under LAW of LAW to examine the length of administrative proceedings instituted in DATE when the complainant had brought an action in ORG for ORG failure to give a decision in his case . In DATE ORG ordered the ORG to give a decision within DATE . ORG gave a negative decision in DATE . The complainant then brought a second administrative action , challenging that decision . In DATE ORG quashed the impugned decision and remitted the case . ORG again gave a negative decision and served it on the complainant in DATE . On DATE the complainant had brought a third administrative action , which was dismissed by ORG in DATE . Meanwhile , on DATE he lodged his constitutional complaint arguing that ORG should , like ORG , take into consideration the overall length of administrative proceedings when examining whether or not they exceeded a reasonable time .

Following its previous practice ( decisions no . U - III-CARDINAL/CARDINAL of DATE , and ORG of DATE ) , ORG held that only the inactivity of the judicial authorities was relevant for a breach of LAW . In its view it was not possible for proceedings before the administrative authorities to last unreasonably long because the statutes regulating those proceedings contained the presumption that the application had been dismissed if the administrative authorities failed to give a decision within the statutory time - limits ( see paragraphs CARDINAL and CARDINAL above ) . ORG therefore examined only the length of the proceedings in their part between the introduction of the complainant ’s third administrative action and lodging of the constitutional complaint . It dismissed the constitutional complaint finding that the proceedings had lasted DATE .


Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

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

On an unspecified date the applicant arrived in GPE , GPE and applied for refugee status .

On DATE the Podilskyy ORG of GPE ( “ the ORG ” ) arrested the applicant on suspicion of vagrancy .

On DATE the local prosecutor authorised the applicant ’s detention .

DATE the local authorities refused to grant the applicant refugee status .

On DATE ORG placed the applicant in ORG for vagrancy .

According to the applicant , the cell in which he was held was always overcrowded ; he was not provided with sufficient food ; he could not take a shower ; and he developed back and skin problems there .

On DATE the applicant was released .

On DATE the applicant instituted civil proceedings in the Podilskyy ORG of GPE against ORG , claiming that his arrest and detention had been unlawful and seeking compensation on this account .

On DATE that court left the claim unexamined in view of the applicant ’s repeated failure to appear for the hearings . The applicant did not appeal against that decision .

On DATE the domestic authorities forbade the applicant to enter and stay in GPE for DATE for having breached the regulations on foreigners staying in GPE . Following that decision the applicant left GPE for GPE , where he stayed for a while , and subsequently went back to GPE .

LAW provided , inter alia , that the police authorities could – subject to a prosecutor ’s warrant – detain persons who were suspected of vagrancy for a period of DATE .

Section CARDINAL of the Act provided , inter alia , that actions of a police officer could be challenged , in accordance with the established procedure , to a supervising police authority , a prosecutor , or a court .

Article CARDINAL - CARDINAL of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision , action or omission of a ORG body , a legal entity or an official , could lodge a complaint with a court .

According to LAW , if such complaint concerned a dispute that had to be resolved in the course of civil adversary proceedings , the court had to leave the complaint unexamined and explain to the claimant his right to lodge a civil claim on a general basis .

Under LAW , if a complaint lodged under LAW was substantiated , the court could declare the decision , act or omission unlawful and oblige the respondent authority or official to put an end to the violation found . The court could quash the obligation imposed on or the measures applied to the claimant or restore his or her rights in another manner . The court could further order immediate execution of its decision .


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON who was granted leave to represent the applicant by the President of ORG CARDINAL § CARDINAL of the Rules of Court ) .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the applicant became a civil servant employed by ORG ( ORG , ORG ; henceforth “ the GPE ” ) where he worked until his retirement on DATE .

On CARDINAL DATE the Trustees of the ORG ( pankkivaltuusto , bankfullmäktige ) introduced an equal retirement DATE for all men and women who entered the service of ORG that date or later . The retirement age for women was thereby raised from DATE to DATE while for men the retirement age remained unchanged . As the rule was not retroactive , the different retirement ages for men and women still applied to those persons who had started employment before DATE .

On DATE the Trustees of the ORG ( pankkivaltuusto , bankfullmäktige ) amended the pension rules of the ORG so that men who had joined the ORG prior to CARDINAL DATE and who continued their employment until retirement were also granted an opportunity to lower their retirement age from DATE . For DATE the retirement age was lowered , and the pension accrued prior to DATE was reduced by PERCENT . At its highest the early retirement reduction was PERCENT for DATE . Under the pension rules of CARDINAL DATE the retirement age for women who had joined the ORG prior to CARDINAL DATE was DATE and no reductions applied to pension accrual .

Since DATE the pension rules of the ORG had provided that a civil servant who applied for early retirement , who had been employed by the ORG prior to CARDINAL DATE and who had DATE of service behind him , had a right to a pension guarantee ( takuueläke , garantipension ) which was PERCENT of the salary . This pension guarantee was increased by PERCENT for DATE the person ’s personal retirement age ( henkilökohtainen eläkeikä , individuell pensionsålder ) , which was DATE for men and DATE for women , fell short of DATE ( the personal retirement age before DATE ) . This guarantee was significantly reduced as from DATE .

Prior to his retirement the applicant applied twice for a preliminary ruling from the ORG on how his pension would be calculated . His application was rejected twice by ORG ( johtokunta , direktionen ) in DATE .

On DATE the applicant was granted a pension , which was calculated with a PERCENT pension guarantee which included the increase of PERCENT as his personal retirement age was DATE . This method of calculation was chosen as it was more beneficial to the applicant than the method by which the pension was reduced by PERCENT , or MONEY ( ORG ) per month , on the ground that he had retired at DATE . The pension so calculated amounted to ORG DATE , starting from DATE .

On an unspecified date the applicant submitted a letter of appeal to the ORG , requesting that his pension be recalculated so that DATE from CARDINAL to CARDINAL brought him an additional pension of PERCENT per year , altogether PERCENT . He claimed that the amendments made to the pension guarantee on DATE had led to discrimination between men and women due to the fact that the theoretical personal retirement age for men was DATE , even if they had retired earlier , whereas for women it was always DATE . In the applicant ’s situation the percentage for accrued pension was PERCENT while for a woman in the same situation it would be PERCENT higher , namely PERCENT . He also complained about the fact that his pension had been reduced by PERCENT , or ORG CARDINAL.CARDINAL per month , on the ground that he had retired at DATE . As the ORG could not rectify the pension decision , it referred the case on appeal to ORG ) .

On DATE ORG partly accepted , partly rejected the applicant ’s appeal . As concerned the percentage for accrued pension , the court accepted the applicant ’s appeal and ordered that the percentage be PERCENT instead of PERCENT . It found that in this respect the pension was not calculated in an equitable manner with regard to men and women , and that women were placed in a more favourable position than men . The applicant ’s personal retirement age should also have been DATE , as was the case for women in the same position . As this inequality affected also the time after DATE , the date on which the ORG rules on equal pay became applicable in respect of GPE , the applicant ’s pension had been calculated in a manner contrary to ORG law during the period starting from DATE until DATE . In this respect the case was referred back to the ORG for a new decision . As to the rest of the applicant ’s complaints , they were rejected . As concerned the reduction of PERCENT due to early retirement , the court found that as the reduction concerned the time before DATE , it was not contrary to ORG law .

NORP On DATE the ORG issued a new pension decision to the applicant . The percentage for accrued pension was now PERCENT , increasing his personal pension guarantee percentage to PERCENT . The pension calculated in this manner amounted thus to ORG CARDINAL,CARDINAL.CARDINAL per month .

By letter dated DATE the applicant submitted an appeal to the ORG , requesting that the pension decision of DATE be recalculated as his pension guarantee still remained at PERCENT when it should have been CARDINAL.CARDINAL/CARDINAL x PERCENT = PERCENT on the ground that he had DATE of service . He noted that ORG had already , on DATE , amended a similar pension decision in the case of Mr GPE and granted him a pension right amounting to PERCENT on the ground that he had fulfilled the pension guarantee requirement as he had completed DATE of service . Moreover , the applicant complained about the amendment to ORG on DATE which introduced the reduction system in cases of early retirement . He claimed that it was discriminatory and unconstitutional and that therefore it should be declared null and void or at least left unapplied . Such practice was not in use in the ORG pension system and under LAW ( valtion eläkelaki , lagen om statens pensioner ) , which LAW were intended to follow . The applicant also pointed out that ORG had also found in this respect that the NORP system was contrary to ORG law . Finally , the applicant complained about lack of transparency in the ORG ’s decision .

As the ORG could not rectify the pension decision , it referred the case on appeal to ORG on DATE . These proceedings are still pending before ORG .

DATE ( NORP perustuslaki , PERSON grundlag ; Act no . CARDINAL/CARDINAL ) provides that :

“ No one shall , without an acceptable reason , be treated differently from other persons on the ground of sex , age , origin , language , religion , conviction , opinion , health , disability or other reason that concerns his or her person . ”

DATE LAW provides that the property of everyone is protected .

Section CARDINAL of the Act on Equality between Women and Men ( laki naisten ja miesten välisestä tasa - arvosta , lagen om jämställdhet mellan kvinnor och män ; Act no . CARDINAL ) prohibits both direct and indirect discrimination based on gender . According to its section CARDINAL , subsection CARDINAL , direct discrimination means , inter alia , putting women or men in an unequal position on the basis of gender . LAW , subsection CARDINAL , point CARDINAL , of the same LAW provides that :

“ An employer ’s conduct constitutes discrimination prohibited under LAW if the employer applies the pay or other terms of employment in such a way that CARDINAL or more employees , because of their gender , find themselves in a less favourable position than CARDINAL or more other employees performing the same work or work of equal value in the employer ’s service . ”

Section CARDINAL of the LAW on ORG ( laki PERSON , lagen om ORG ; Act no . CARDINAL ) provides , inter alia , that :

“ The Trustees of the ORG shall confirm ORG and issue regulations concerning the management of the ORG ’s pension liability , upon proposal of the ORG . ”

Section CARDINAL of the Act on Officials of ORG ( laki PERSON virkamiehistä , lagen om ORG tjänstemän ; Act no . DATE ) provides the following :

“ ORG shall treat all officials in its service equally to ensure that no - one is unjustifiably treated differently because of his origin , citizenship , gender , religion , age , political or union activities , or on other comparable bases .

ORG shall not forbid an official to join or belong to an association or pressure him to join a particular association , nor forbid him to resign from such . ”

Section CARDINAL , subsections CARDINAL , of the same LAW provide the following :

“ An official who considers that ORG has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to ORG . No request for rectification can be made in a matter that falls within the jurisdiction of ORG , unless ORG has decided not to settle the matter under section CARDINAL , subsection CARDINAL , of the LAW on ORG ( CARDINAL/CARDINAL ) .

Rectification of a decision by which ORG has issued an official with a warning , laid him off or given him notice , cancelled the service relationship , suspended him from office or decided on a matter concerning his pension contribution or secondary occupation , as well as a decision referred to in paragraph CARDINAL on a request for rectification referred to in paragraph CARDINAL can be requested by appealing to ORG in accordance with the provisions of ORG ( ORG ) . A matter referred to in this paragraph shall be treated as urgent by ORG .

Decisions of the ORG concerning pensions can be appealed against to ORG . Otherwise , as regards a request for rectification on pension , the applicable provisions of the Act on State Pensions ( CARDINAL/CARDINAL ) shall apply . ”

Section CARDINAL , subsection CARDINAL , of the same LAW provides that

“ [ t]he right of an employee of ORG to a pension paid from the ORG ’s funds is determined , to the extent applicable , on the same grounds as state pension cover . State pension cover refers to the right to pensions , survivors’ pensions and other benefits which are payable from the state ’s funds and the content of and eligibility for which are regulated by LAW and the related legislation . Pensions and survivors’ pensions are granted by ORG . ”

More detailed provisions on the payment of pensions and survivors’ pensions and pension cover in other respects are contained in ORG ( Suomen Pankin eläke- ja perhe - eläkesäännöt ; pensionsstadgan och familjepensionsstadgan för ORG ) . The Trustees of ORG , elected by the ORG , adopt the ORG on the basis of ORG proposals .

Section CARDINAL , subsection CARDINAL , of LAW with its earlier wording , as amended on DATE , read as follows :

“ Eligibility for old age pension requires that the beneficiary has completed his or her service and reached DATE , or DATE if the beneficiary , immediately before retirement , has been serving ORG or its ORG for DATE , and DATE in the case of a female employee . A beneficiary who retires as a member of the ORG is entitled to old age pension irrespective of age . ”

NORP The lower retirement DATE for women was applied until DATE , when the amendment of section CARDINAL , subsection CARDINAL , of ORG entered into force . With this amendment the retirement age for women was raised from DATE but the retirement age for men remained unchanged at DATE . The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the ORG began on DATE or thereafter .

For the equalisation of the retirement ages , men were granted the right to opt for a lower retirement age . On DATE the Trustees of the ORG amended the entry into force provision of LAW in the following manner :

“ However , as of DATE , the earlier provision is applicable both to women who entered service in the ORG prior to CARDINAL DATE and to men who entered service in the ORG before that date .

The beneficiary has the right to choose between the lower retirement age , based on the earlier provision , or the higher retirement age . If a man chooses the lower retirement age , the amount of his pension accrued on the basis of the duration of his service is , in respect of the service prior to DATE , reduced by CARDINAL percentage units per month of earlier retirement . ”


Alejandro Saiz Arnaiz;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Georgieva;Giovanni Bonello;Ineta Ziemele;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the ship ORG , flying the flag of the GPE , was sailing in the NORP exclusive economic zone off the coast of GPE , carrying QUANTITY of fuel oil . At a distance of QUANTITY from LOC it sent out an ORG after sustaining sudden and severe damage which produced a leak and caused the contents of its tanks to spill into LOC .

As the ORG was in danger of sinking , the maritime authorities launched a large - scale operation to rescue its crew . The ship was adrift and was approaching the coast , spilling its cargo into the sea . The applicant , who was the ship ’s Master , was taken by helicopter to the offices of the ORG ( A GPE ) harbourmaster , where he was arrested .

The spillage of the ship ’s cargo caused an ecological disaster whose effects on marine flora and fauna lasted for DATE and spread as far as the NORP coast . The shores of the LOC coast of GPE and GPE were severely polluted by the numerous waves of oil which were washed up . The oil spill blackened beaches and cliffs , destroyed marine life , adversely affected water quality and had an immediate environmental impact on numerous animal species . It caused damage to protected natural areas and had considerable repercussions on several sectors of the economy in the regions concerned , particularly on fishing , commerce and tourism .

By a decision of CARDINAL DATE , the ORG no . CARDINAL investigating judge remanded the applicant in custody and set bail at MONEY ( ORG ) , after finding that the facts of the case disclosed sufficient indicative evidence to justify opening a criminal investigation . While acknowledging that the oil spill had been caused by an accident , the judge said that some of the information in the file , although still provisional at that stage in the proceedings , suggested that the applicant had been at fault in several respects , in particular in failing to cooperate sufficiently with the port authorities when they had tried to take the vessel in tow . The applicant ’s conduct could constitute an offence of causing damage to natural resources and the environment and CARDINAL of failing to comply with the instructions of the administrative authorities . In the judge ’s opinion , the seriousness of the offences in question and the fact that the applicant was a foreign national who had no particular ties with GPE justified the high sum set for bail . The relevant part of the decision reads as follows :

“ The information obtained discloses indicative evidence – still provisional at the preliminary investigation stage DATE of an offence of causing damage to natural resources and the environment for the purposes of LAW and , possibly , LAW , and of an offence of failure to comply with the instructions of the administrative authorities , punishable under LAW . The investigation has produced sufficient indicative evidence to suggest that Mr PERSON could be criminally responsible for the offences in question . In view of the penalties laid down in LAW for these offences , and the fact that the application provided for in LAW and LAW was made at the mandatory hearing , an order should be made , in accordance with ORG CARDINAL and CARDINAL of that Code , for the accused ’s pre - trial detention as a preventive measure , accompanied by the right for the accused to communicate with others and the possibility of release on bail .

The reasonable indications referred to above emerge from the documents in the case file and , in particular , from detailed examination of the testimony of the witnesses who appeared TIME . All the evidence indicates that the severe damage to the ORG was caused by the unforeseeable phenomenon of a storm surge , but that actions were taken which could form the basis of a criminal prosecution , as indicated in the previous paragraph .

It should be stressed that the steps taken hitherto and the conclusions to be drawn for the purposes of this decision are of a wholly provisional nature and that many further steps and much more expert evidence will be needed in order to fully elucidate the facts . However , it is clear at this stage that the ORG did not have any emergency towing equipment or that if it did , it was not in working order , as demonstrated by the recordings of conversations . It is also clear that the ship ’s Master , by repeatedly ignoring the instructions of the port authorities , hampered meaningful joint efforts to lessen the extremely serious risks .

It appears that the Master of the Prestige refused for TIME to cooperate and subsequently continued to do so indirectly , creating difficulties by refusing to take the necessary steps to ensure effective towing of the vessel or to start the engine so that the ship could advance , however slowly . These events occurred within the country ’s GPE limit and , by definition , within the CARDINAL-mile zone . It is true , as already indicated , that further investigative elements are required , in particular the ship ’s log , which has been urgently requested , and that it will be necessary to verify all the other information contained in the recordings of conversations , transcripts of which appear to be in the possession of the LOC control centre .

Without prejudice to all of the above , the accused ’s detention could be dispensed with subject to bail being furnished in the amount of MONEY . In the court ’s view , the security in question is justified in view of the seriousness of the offences concerned and the heavy sentence they carry and also because the investigation is in the early stages , the accused ’s release could impede the investigation , the case has clearly caused a major public outcry and , in addition to the issues of criminal responsibility raised , there are significant civil liability issues at stake involving substantial sums . Furthermore , Mr PERSON has no ties in GPE and could leave the country at any time and thus evade prosecution . For all the reasons outlined above it is necessary and unavoidable , in the present circumstances , to fix bail . Bail can not , for the time being at least , be replaced by a less restrictive measure . ”

On DATE the applicant requested his release and , in the alternative , the reduction of bail to EUR CARDINAL,CARDINAL to reflect his personal situation . He also submitted that his advanced age should be taken into account . In a decision of DATE , PERSON ) no . CARDINAL investigating judge refused the applicant ’s request . The judge took the view that the seriousness of the offences of which the applicant stood accused justified his continued pre - trial detention and that the latter measure was exceptional , subsidiary , temporary and proportionate in nature and thus satisfied the remaining criteria laid down by the case - law of ORG . As to the amount set for bail , the judge stated that the applicant ’s appearance at trial was vital in order to elucidate the sequence of events following the leak in the vessel . He also reiterated the arguments of the first investigating judge to the effect that the seriousness of the offences , the public outcry caused by the marine pollution , the applicant ’s NORP nationality , the fact that his permanent address was abroad and the fact that he had no ties with GPE justified setting a high level of bail in order to rule out any risk that the applicant might fail to appear .

On DATE the same investigating judge confirmed the decision , rejecting an application from the applicant to set it aside ( recurso de reforma ) .

An appeal by the applicant was dismissed on DATE by the Corunna Audiencia Provincial subject to the posting of bail in the amount of EUR CARDINAL . ORG noted the outcry caused by the alleged offences and took the view that the impugned decision was not open to criticism on any account , “ including with regard to the amount of bail ” .

The Audiencia Provincial stressed that the prima facie evidence taken into consideration by the investigating judge in ordering the applicant ’s pretrial detention concerned serious offences , that it was too early to rule on whether the offence had been committed intentionally and that the applicant ’s detention pursued the legitimate aim of preventing the risk of his absconding , a risk closely linked to the seriousness of the alleged offence and his lack of any particular ties in GPE . It referred in that regard to the category of offences in question and the severity of the likely sentence , the fact that the accused ’s presence was essential to the investigation , the possibility that the trial might collapse if he absconded and the public outcry surrounding the established facts .

ORG dismissed the ground of appeal based on the applicability of LAW on the Law of LOC DATE , holding that the provision in question referred only to administrative offences relating to pollution of the marine environment committed by foreign vessels beyond the territorial sea , for which only monetary penalties could be imposed , and not to wilful and serious acts of pollution in the territorial sea .

On DATE the NORP ( ORG ) no . CARDINAL investigating judge recorded the lodging of a bank guarantee in an amount corresponding to the sum set for bail , which was provided as a CARDINAL - off , spontaneous humanitarian gesture by the London Steamship ORG ( “ the GPE P&I Club ” ) , which insured the ship ’s owner . Accordingly , on DATE , the judge ordered the applicant ’s provisional release after DATE in detention , subject to the following conditions :

“ ( a ) that [ the applicant ] supply an address in GPE ;

( b ) that he report DATE before TIME to the police headquarters corresponding to the address supplied ;

( c ) that he remain in the country and surrender his passport to the court ’s registry . ”

On DATE the GPE ORG and the ship ’s owner , ORG , paid out ORG CARDINAL in compensation for the damage for which they were civilly liable within the limits laid down by LAW ( “ the ORG DATE ” , see paragraph DATE below ) .

Relying on LAW ( right to liberty and security ) , the applicant lodged an amparo appeal with ORG . While he did not appeal against his pre - trial detention , for which he considered sufficient reasons to have been given , the applicant complained of the amount set for bail , arguing that it had been excessive and disproportionate in view of his financial circumstances and had made any prospect of provisional release unrealistic . He alleged that the amount had been fixed without account being taken of his personal circumstances , in disregard of the requirements of the court ’s case - law .

By a reasoned decision ( auto ) of DATE , ORG declared the appeal inadmissible . It began by observing that , according to its case - law , the fact that the applicant had been released did not render the amparo appeal devoid of purpose , given that “ ... in the event of a breach of the fundamental right asserted , the [ c]ourt should allow the appeal and grant the applicant amparo relief ” .

NORP However , on the merits , ORG ruled as follows :

“ ... LAW stipulates that the amount set for bail should take into account , among other factors , the nature of the offence , any previous convictions and other circumstances that might prompt the accused to seek to evade justice . According to the case - law of ORG , the object of bail is to secure the presence of the accused at the trial ... and the amount should act as a deterrent against any wish to abscond .

The rulings given in the instant case concerning the amount of bail and the refusal to reduce it provided ample reasons based on the primary objective of securing the accused ’s presence at the trial , the seriousness of the offences in question , the national and international disaster caused by the oil spill , the fact that the accused is a nonnational and the fact that he has no ties in GPE .

These circumstances led the courts to consider that the risk of flight could only be reduced by setting such a high sum for bail ... They also took into consideration the accused ’s personal and financial circumstances and his professional environment . ... In fixing bail at a level such as to dispel any wish to abscond , they further took account of other aspects of the accused ’s personal situation , namely his NORP nationality , the fact that his permanent address is abroad and the fact that he has no ties whatsoever in GPE .

It follows that bail was fixed on the basis of criteria of proportionality ... The exceptional amount reflects the exceptional nature of the situation . ”

Subsequently , in DATE , the NORP authorities authorised the applicant ’s return to his country of origin , where he is now living , on condition that the NORP authorities ensured his compliance with the periodic supervision to which he had been subject in GPE . The applicant is therefore required to report DATE to a police station on the island of GPE , where he was born , or in GPE , where his children live .

The criminal proceedings are currently pending before the PERSON ( ORG ) no . CARDINAL investigating judge .

The relevant provision of the Spanish Constitution reads as follows :

“ Everyone has the right to liberty and security . No one may be deprived of his liberty other than in accordance with the provisions of this LAW and in the circumstances and form provided by law . ”

The relevant provisions of LAW in force at the material time stipulated as follows :

“ Notwithstanding the provisions of the preceding ORG , convicted persons who have reached DATE or who reach that age while serving their sentence , and who satisfy the requirements laid down [ by the law ] , with the exception of the requirement to have served DATE or , where appropriate , CARDINAL of [ the sentence ] , may be granted conditional release .

“ Any person who ... causes or produces , directly or indirectly , emissions , discharges ... into ... inland or maritime waters or groundwater ... likely to severely upset the balance of natural systems , shall be liable to a term of imprisonment of DATE , a day - fine payable for DATE and a prohibition of DATE on carrying out his or her occupation . Where there is a risk to ORG health the term of imprisonment shall be in the upper half of the range . ”

“ The commission of any of the acts described in the previous Article shall entail a more severe sentence when accompanied by :

a. illegal operation of an industrial or other activity using facilities which have not obtained the necessary administrative authorisation or approval ; or

b. failure to comply with the express instructions of the administrative authority aimed at remedying or putting an end to the activities referred to in the previous Article ; or

c. falsification or concealment of information on the environmental implications of the activities in question ; or

d. hampering of the administrative authorities’ inspection activities ; or

e. a risk of irreversible or catastrophic damage ; or

f. illegal pumping of water while restrictions are in place . ”

“ The penalty imposed for an offence referred to in this LAW shall be in the lower half of the range where the offence was the result of gross negligence . ”

The second paragraph of LAW , as amended in DATE , provides :

“ CARDINAL . Persons who knowingly release , discharge or introduce ionising radiation or other substances into the air , soil or maritime waters ... in quantities such as to cause death or illness ... with irreversible effects , shall be liable to a term of imprisonment of DATE in addition to the penalty for causing personal injury . ”

The relevant provision of LAW reads as follows :

“ In determining the nature and amount of the security , consideration should be given to the nature of the offence , the social circumstances of the accused and any previous convictions , together with any other circumstance which may increase or reduce the incentive to evade justice . ”

LAW ( Law no . CARDINAL/CARDINAL of DATE ) regulates ORG responsibility to prevent and remedy environmental damage in accordance with LAW and the precautionary and “ polluter pays ” principles .

An increasing tendency has been observed at NORP level to use the criminal law as a means of enforcing the environmental obligations imposed by ORG law .

In DATE ORG opened for signature ORG . CARDINAL ) . To date , however , CARDINAL States have signed the ORG and GPE is the only country to have ratified it . The text includes the following provisions :

LAW offences

“ CARDINAL . Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law :

a. the discharge , emission or introduction of a quantity of substances or ionising radiation into air , soil or water which :

( i ) causes death or serious injury to any person , or

( ii ) NORP creates a significant risk of causing death or serious injury to any person ;

b. the unlawful discharge , emission or introduction of a quantity of substances or ionising radiation into air , soil or water which causes or is likely to cause their lasting deterioration or death or serious injury to any person or substantial damage to protected monuments , other protected objects , property , animals or plants ;

c. the unlawful disposal , treatment , storage , transport , export or import of hazardous waste which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air , soil , water , animals or plants ;

d. the unlawful operation of a plant in which a dangerous activity is carried out and which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air , soil , water , animals or plants ;

e. the unlawful manufacture , treatment , storage , use , transport , export or import of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air , soil , water , animals or plants ,

when committed intentionally .

Each ORG shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law aiding or abetting the commission of any of the offences established in accordance with paragraph CARDINAL of this Article . ”

Article DATE Negligent offences

“ CARDINAL . Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law , when committed with negligence , the offences enumerated in DATE , paragraph CARDINAL a to e.

Any ORG may , at the time of signature or when depositing its instrument of ratification , acceptance , approval or accession , by a declaration addressed to the Secretary General of ORG , declare that paragraph CARDINAL of this Article , in part or in whole , shall only apply to offences which were committed with gross negligence .

Any ORG may , at the time of signature or when depositing its instrument of ratification , acceptance , approval or accession , by a declaration addressed to the Secretary General of ORG , declare that paragraph CARDINAL of this Article , in part or in whole , shall not apply to :

– sub - paragraph CARDINAL . of Article CARDINAL ,

– sub - paragraph CARDINAL.b . of LAW , in so far as the offence relates to protected monuments , to other protected objects or to property . ”

LAW for environmental offences

“ Each ORG shall adopt , in accordance with the relevant international instruments , such appropriate measures as may be necessary to enable it to make the offences established in accordance with ORG and CARDINAL punishable by criminal sanctions which take into account the serious nature of these offences . The sanctions available shall include imprisonment and pecuniary sanctions and may include reinstatement of the environment . ”

In its report on sea pollution of DATE , ORG of ORG of ORG stated as follows :

CARDINAL lines of thought must be pursued :

( a ) The excessively absolute principle of freedom of navigation must be revised , as it is no longer appropriate in the context of DATE transport flows . Legally speaking , this would open the way for passive control and ultimately active control , at least in zones subject to risk . The issue of the responsibilities of control bodies could be considered at the same time .

( b ) A ORG which has suffered pollution damage caused by a ship must be able to demand reparation from the ORG whose flag that ship flies where it is established that the damage results completely or partly from the flag ORG ’s failure to exercise any effective monitoring of the vessel causing the damage .

( c ) LAW must be amended to make clearer the possibility of penalties of imprisonment for the most serious pollution offences .

( d ) An international maritime criminal court must be set up . In the same way that the notion of crimes against humanity finally yielded the creation of ORG , it can not be excluded in the future that states may eventually enshrine the notion of ‘ crime against the environment’ , drawing the consequences , in legal terms , of the idea put forward by some of establishing the sea as the common heritage of humanity . ”

The issue of environmental crime has also been debated for DATE within ORG .

In its judgment , the ORG referred to Directive CARDINAL of ORG and of the ORG on ship - source pollution and on the introduction of penalties for infringements , which makes ship - source discharges in breach of ORG law a criminal offence . The Directive further requires that both criminal and administrative penalties be imposed if the persons concerned are found to have committed or participated in the act with intent or as a result of negligent behaviour . The Directive , adopted in response to the sinking of the PERSON and of the ORG , specifically provides that the member States must implement it by DATE . It was therefore not intended to apply to events having occurred prior to that date .

In any event , Directive CARDINAL applies to discharges occurring , inter alia , in the exclusive economic zone or equivalent zone of a Member State , from any ship with the exception of any warship , naval auxiliary or other ship owned or operated by a ORG and used at the material time only on government non - commercial service . The member GPE must take the necessary measures to ensure that infringements are subject to effective , proportionate and dissuasive penalties , which may include criminal or administrative penalties .

In its judgment of DATE in Case C-CARDINAL/CARDINAL Intertanko and Others , ORG of ORG ( “ the ECJ ” ) , having been called upon to examine a challenge to the validity of Directive DATE , found that the concept of “ serious negligence ” provided for in many national legal systems could only refer to a patent breach of a duty of care ( paragraph CARDINAL of the judgment ) . The ECJ further held that “ serious negligence ” within the meaning of the Directive should be understood as entailing an unintentional act or omission by which the person responsible committed a patent breach of the duty of care which he should have and could have complied with in view of his attributes , knowledge , abilities and individual situation ( paragraph CARDINAL ) .

NORP In the wake of the ECJ judgments of DATE and DATE , which annulled respectively ORG CARDINAL/CARDINAL/JHA of DATE on the protection of the environment through criminal law and ORG CARDINAL/CARDINAL/JHA of DATE to strengthen the criminal - law framework for the enforcement of the law against ship - source pollution , which supplements Directive DATE ( referred to in the ORG judgment ) , the ORG put forward a proposal for a directive on the protection of the environment through criminal law . ORG legislative process culminated in the adoption of Directive CARDINAL/CARDINAL/EC . Recital CARDINAL in the preamble to the Directive states that the availability of criminal penalties demonstrates social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law . It also makes an explicit link between the need for criminal penalties and past experience in the field of environmental protection .

The Directive in question requires Member GPE to treat as criminal offences certain activities that breach ORG environmental legislation , including :

( i ) unlawful shipment of waste ;

( ii ) trade in endangered species or in ozone - depleting substances ;

( iii ) conduct causing significant deterioration of a habitat within a protected site ;

( iv ) significant damage to the environment caused by the treatment , disposal , storage , transport , export or import of hazardous waste ( including oil and gas , waste oils , sewage sludge , metals or electrical or electronic waste ) ; and

( v ) significant damage to the environment caused by the unlawful discharge of materials or ionising radiation .

Member GPE are required to subject these offences to effective , proportionate and dissuasive criminal penalties and to ensure that companies can be held liable for offences carried out by individuals on their behalf .

For its part , Directive CARDINAL/CARDINAL/EC of ORG and of ORG on environmental liability with regard to the prevention and remedying of environmental damage is aimed at establishing a framework of environmental liability based on the “ polluter pays ” principle , with a view to preventing and remedying environmental damage .

The relevant Articles of this Convention , which was ratified by GPE on DATE , read as follows :

Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a ORG has , in the exclusive economic zone , committed a violation of applicable international rules and standards for the prevention , reduction and control of pollution from vessels or laws and regulations of that ORG conforming and giving effect to such rules and standards , that ORG may require the vessel to give information regarding its identity and port of registry , its last and its next port of call and other relevant information required to establish whether a violation has occurred .

Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a ORG has , in the exclusive economic zone , committed a violation referred to in paragraph CARDINAL resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal ORG , or to any resources of its territorial sea or exclusive economic zone , that ORG may , subject to section CARDINAL , provided that the evidence so warrants , institute proceedings , including detention of the vessel , in accordance with its laws .

Notwithstanding the provisions of paragraph CARDINAL , whenever appropriate procedures have been established , either through the competent international organisation or as otherwise agreed , whereby compliance with requirements for bonding or other appropriate financial security has been assured , the coastal ORG if bound by such procedures shall allow the vessel to proceed .

“ CARDINAL . Nothing in this Part shall prejudice the right of GPE , pursuant to international law , both customary and conventional , to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests , including fishing , from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty , which may reasonably be expected to result in major harmful consequences .

For the purposes of this LAW , ‘ maritime casualty’ means a collision of vessels , stranding or other incident of navigation , or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo . ”

“ In exercising their rights and performing their duties under this Part , GPE shall not discriminate in form or in fact against vessels of any other ORG . ”

“ CARDINAL . Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention , reduction and control of pollution of the marine environment , committed by foreign vessels beyond the territorial sea .

Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention , reduction and control of pollution of the marine environment , committed by foreign vessels in the territorial sea , except in the case of a wilful and serious act of pollution in the territorial sea .

In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties , recognised rights of the accused shall be observed . ”

With regard to detention of seafarers and their release , ORG provides :

“ CARDINAL . The coastal ORG may , in the exercise of its sovereign rights to explore , exploit , conserve and manage the living resources in the exclusive economic zone , take such measures , including boarding , inspection , arrest and judicial proceedings , as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention .

Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security .

Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment , in the absence of agreements to the contrary by the GPE concerned , or any other form of corporal punishment .

NORP In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State , through appropriate channels , of the action taken and of any penalties subsequently imposed . ”

“ CARDINAL . Where the authorities of ORG have detained a vessel flying the flag of ORG and it is alleged that the detaining ORG has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security , the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or , failing such agreement within DATE from the time of detention , to a court or tribunal accepted by the detaining ORG under LAW , unless the parties otherwise agree .

The application for release may be made only by or on behalf of the flag ORG of the vessel .

The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release , without prejudice to the merits of any case before the appropriate domestic forum against the vessel , its owner or its crew . The authorities of the detaining ORG remain competent to release the vessel or its crew at any time .

Upon the posting of the bond or other financial security determined by the court or tribunal , the authorities of the detaining ORG shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew . ”

The provisions concerning detention and release of vessels and crews have been interpreted by ORG for the Law of the Sea ( “ the ORG ” ) . In doing so , the ORG has laid down a number of criteria in order to determine what constitutes a reasonable bond within the meaning of LAW ORG taken in conjunction with LAW . Hence , it is interesting to examine the approach taken by the ORG in cases relating to the detention of a foreign national by the coastal ORG and the fixing of the amount of bail . However , it should be borne in mind , firstly , that the ORG , unlike the ORG , is tasked with striking a balance between the competing interests of CARDINAL GPE rather than the interests of an individual and those of a ORG . Secondly , the issues brought before the ORG concern the detention and release of both crews and vessels . Thirdly , unlike the instant case , which is about an environmental disaster , the vast majority of cases before the ORG concern fisheries - related violations . In its judgment of DATE in the case of ORG v. GPE ) , the ORG summarised the principles it applies in deciding what constitutes a reasonable bond . The relevant extracts reads as follows :

“ CARDINAL . The ORG has expressed its views on the reasonableness of the bond in a number of its judgments . In the PERSON case it stated : ‘ the ORG considers that a number of factors are relevant in an assessment of the reasonableness of bonds or other financial security . They include the gravity of the alleged offences , the penalties imposed or imposable under the laws of the detaining ORG , the value of the detained vessel and of the cargo seized , the amount of the bond imposed by the detaining ORG and its PERSON ( ITLOS Reports CARDINAL , p. CARDINAL , at p. CARDINAL , para . CARDINAL ) . In the ORG case it added that : ‘ This is by no means a complete list of factors . Nor does the ORG intend to lay down rigid rules as to the exact weight to be attached to each of them’ ( ITLOS Reports DATE , p. CARDINAL , at p. CARDINAL , para . DATE ) . In the NORP case it stated that : ‘ In assessing the reasonableness of the bond or other security , due account must be taken of the terms of the bond or security set by the detaining ORG , having regard to all the circumstances of the particular ORG ( ITLOS Reports DATE , p. CARDINAL , at p. CARDINAL , para . CARDINAL ) . In the Juno Trader case the ORG further declared : ‘ [ CARDINAL assessment of the relevant factors must be an objective one , taking into account all information provided to the ORG by the parties’ ( ITLOS Reports CARDINAL , p. CARDINAL , at p. CARDINAL , para . CARDINAL ) .

The proceedings under LAW of [ ORG , ORG , p. CARDINAL , at pp . CARDINAL , para . CARDINAL ) . However , the ORG wishes to emphasise that in so doing it is by no means acting as a court of appeal ( ORG , ORG , p. CARDINAL , at p. CARDINAL , para . CARDINAL ) . ”

It is clear from the foregoing that , in assessing the reasonableness of the bond , the ORG takes CARDINAL factors into consideration : ( i ) the gravity of the alleged offences ; ( ii ) the penalties imposed or imposable under the laws of the detaining ORG in so far as they are reasonably proportionate to the gravity of the alleged offences ; and ( iii ) the value of the detained vessel and of the cargo seized . In doing so , the ORG is mindful of its duty not to prejudice the merits of the case , which are decided domestically . However , the ORG considers that it is not prevented from making determinations bearing on the merits when these are necessary for the assessment of a reasonable bond .

ORG is an independent shipping association with a membership composed of shipowners , managers , brokers , agents and many other stakeholders with vested interests in the shipping industry . ORG is CARDINAL of the third - party interveners in the present case . On DATE ORG published a report on the treatment of seafarers which is interesting in several respects .

Firstly , the report identifies CARDINAL cases where sanctions were taken against the seafarers involved before any deliberate act or negligence had been admitted or proven in court . The period examined runs for DATE until DATE and the cases dealt with DATE which include the PERSON ( or ORG ) case DATE involve CARDINAL coastal GPE . The report concludes that : ( i ) the use of criminal sanctions against seafarers is a worldwide phenomenon , by no means restricted to particular countries or regions ; ( ii ) although the rules are fair , their application is unjust , often flying in the face of the presumption of innocence ; and ( iii ) while there are relatively few cases , the issues involved clearly illustrate that there are continuing problems with respect to the unfair treatment of seafarers .

Secondly , the report examines a range of instruments in connection with the treatment of seafarers , including international conventions , LAW and a number of regional and national instruments . In the last category , particular attention is given to ORG legal framework and to the law in GPE , GPE , GPE and GPE . In its conclusions , ORG observes that the test generally applied in those instruments is gross negligence , with punishment ranging from fines to imprisonment .

Finally , this report was examined by ORG ( ORG ) at its CARDINALth session from DATE to DATE . As regards the fair treatment of seafarers , TIME record the following :

“ The ORG agreed that LAW in the event of a maritime accident , adopted by ORG , and LAW for a ORG into a ORG or ORG , adopted by ORG ’s ORG , should be strictly applied by GPE so that a proper balance could be achieved between the need , on the one hand , for a thorough investigation of maritime accidents and , on the other hand , the protection of the rights of seafarers .

Many delegates noted that the issue of fair treatment of seafarers was the direct responsibility of port , coastal and flag GPE , the ORG of the nationality of the seafarers , shipowners , and seafarers . States were obliged to treat seafarers fairly , pursuant to LAW and regional human rights instruments , as well as under national law . There was also a consensus that GPE should comply with LAW adopted by ORG . ”

The Guidelines on Fair Treatment of Seafarers are attached to the observations of the third - party interveners in the present case .

This Convention which , together with the LAW thereto , was ratified by GPE on DATE , has been amended on several occasions , most recently in DATE ( entry into force DATE ) . Annex I to the Convention relates to the prevention of pollution by oil following collision or stranding . The Convention , which is a combination of CARDINAL treaties adopted in DATE and DATE , constitutes the main instrument covering prevention of pollution of the marine environment by ships from operational or accidental causes .

This Convention governs the liability of shipowners for oil pollution damage . It sets up a system of strict liability for shipowners and a system of compulsory liability insurance . The shipowner is normally entitled to limit his liability to an amount which is linked to the tonnage of his ship .

“ CARDINAL . Except as provided in CARDINAL of this LAW , the owner of a ship at the time of an incident , or , where the incident consists of a series of occurrences , at the time of the first such occurrence , shall be liable for any pollution damage caused by the ship as a result of the incident .

No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention . Subject to paragraph CARDINAL of this Article , no claim for compensation for pollution damage under this LAW or otherwise may be made against :

( a ) the servants or agents of the owner or the members of the crew ;

( b ) the pilot or any other person who , without being a member of the crew , performs services for the ship ;

unless the damage resulted from their personal act or omission , committed with the intent to cause such damage , or recklessly and with knowledge that such damage would probably result .

NORP The owner shall not be entitled to limit his liability under this Convention if it is proved that the pollution damage resulted from his personal act or omission , committed with the intent to cause such damage , or recklessly and with knowledge that such damage would probably result .

The Protection and Indemnity Clubs were set up by shipowners themselves to provide cover against various risks including those arising out of pollution caused by their vessels . They are governed by general conditions ( the London P&I Rules ) , the relevant parts of which read as follows :

DATE Omnibus Rule

“ CARDINAL.CARDINAL.CARDINAL Liabilities , losses , costs and expenses incidental to the business of owning , operating or managing PERSON which and to such extent as the ORG in its sole discretion shall consider fall within the scope of this Class ,

CARDINAL.CARDINAL.CARDINAL.CARDINAL

“ CARDINAL The ORG may , but shall in no case be obliged to , provide on behalf of an Assured security to prevent arrest or obtain release from arrest or otherwise in respect of an entered Ship and if it does such Assured shall upon first demand made at any time by the ORG in writing arrange such counter - security ( which expression may in the ORG ’s sole discretion include a deposit of cash with ORG may require and ( with or without such counter - security having been required or arranged ) shall indemnify the ORG against all liabilities and expenses incurred by the ORG in consequence of the security originally provided by the ORG . In the event that the Assured does not arrange such counter - security as may have been required or does not indemnify the ORG as aforesaid , the ORG , without prejudice to its other rights , shall be entitled to retain any amounts which would otherwise be recoverable by such Assured , notwithstanding that the same may have no connection with the liability in respect of which the original security was provided and may relate to other periods of cover before or after that liability was incurred by the Assured or to another entered Ship . The provision of security by the ORG shall be without prejudice to the ORG ’s liability to the Assured for the claim in question . ”