CASE OF FENER RUM ERKEK LİSESİ VAKFI v. TURKEY

Violation of P1-1;Not necessary to examine Art. 14;Pecuniary damage - payment of compensation or re-registration of the applicant's title to the disputed property at the Land Registry;Costs and expenses partial award - Convention proceedings

András Baka;Ireneu Cabral Barreto;Jean-Paul Costa;Volodymyr Butkevych

The applicant is a foundation existing under the laws of GPE whose purpose is to provide educational facilities at ORG in GPE , GPE . It operates in accordance with the provisions of LAW , which afforded protection to old foundations providing public services for religious minorities . It is one of a number of foundations dating from the NORP era . After the proclamation of the Republic it fell under PERSON no . CARDINAL of DATE , by virtue of which it obtained legal personality . In DATE , in accordance with section CARDINAL of that Act , the applicant foundation filed a declaration indicating its aims and its immovable property .

On DATE the applicant foundation acquired , by way of donation , title to part of a building situated in GPE . That acquisition was based on a certificate issued on DATE by the Governor of GPE . The relevant part of that certificate read as follows :

“ ORG is a legal entity authorised to acquire immovable property by virtue of LAW . It is run by an administrative board consisting of ... Further to a request of DATE by ORG , the present document is issued for the purposes of the transaction concerning immovable property located at ... by virtue of CARDINAL of LAW [ Law no . CARDINAL of DATE on ORG see paragraph CARDINAL below ] . ”

The immovable property in question was subsequently registered at ORG . The applicant foundation duly paid property taxes in respect of its property .

Similarly , on DATE , the applicant foundation acquired , by purchase , co - ownership of another part of the same building . On DATE the Governor of GPE had issued the certificate required by LAW , again indicating that “ Fener Rum Erkek Lisesi Vakfı [ was ] a legal entity authorised to acquire immovable property by virtue of the LAW ” . The applicant ’s title to that property was accordingly registered at ORG and the relevant property taxes were duly paid .

On DATE the ORG lodged an application with ORG ( GPE ) seeking the annulment of the applicant foundation ’s title to the above - mentioned immovable property and the registration thereof in the name of the former owners , by virtue of the established case - law of ORG . In support of its application , it argued in particular that the applicant did not have the capacity to acquire immovable property . In addition , given that the property in question was not mentioned in its declaration of DATE , an instrument regarded as the legal foundation constitution ( vakıfname ) of those establishments in accordance with the case - law of ORG , the applicant was not entitled to obtain the relevant title . The ORG therefore requested that the property be re - registered in the name of its former owner .

On DATE , further to a request from ORG , an expert in cartography and land surveys filed a report on the case . Referring to the case - law of the combined civil divisions of ORG , as established on CARDINAL DATE ( see paragraph CARDINAL below ) , he observed that foundations belonging to religious minorities as defined by LAW which had not indicated in their constitution a capacity to acquire immovable property were precluded from purchasing or accepting gifts of such property . Consequently , the real estate of such foundations was limited to the property indicated in their constitutions , which had become final with the declarations of DATE . In conclusion , the expert considered that the applicant foundation ’s title should be annulled , as it lacked the capacity to acquire immovable property , and that the property in question should be re - registered in the name of its former owners .

Before ORG , the applicant foundation objected to the characterisation given to the DATE declarations by the ORG . It contended in particular that these declarations had been required by the ORG for the registration of the assets and income of foundations and that they could not be regarded as constitutive instruments . It further argued that such foundations did have the capacity to acquire property , by virtue of LAW .

In a judgment of DATE granting the request of the ORG , ORG ordered both the annulment of the applicant ’s title and the re - registration of the property in the name of the former owners . It found in particular as follows :

“ As the ORG stated , the defendant foundation did not indicate in [ its ] declaration of DATE ... its [ disputed ] acquisitions by way of donation and purchase . Thus , as observed in the expert ’s report , those acquisitions are devoid of legal basis and must accordingly be struck out of the land register and re - registered in the name of the former owners . ”

On DATE the applicant foundation appealed to ORG . It relied in particular on its right to the peaceful enjoyment of its possessions under LAW No . CARDINAL . Its appeal was dismissed on DATE .

On DATE ORG dismissed an application by the applicant foundation for rectification of the judgment of DATE .

On DATE the applicant foundation submitted a request to ORG ( the “ Directorate ” ) for the amendment of its constitution . It sought a new constitutive instrument that would grant it the capacity to acquire immovable property . The request was rejected on DATE . In the grounds for its decision , relying on the judgment of the combined civil divisions of ORG CARDINAL DATE , the ORG observed that the DATE declarations by foundations of religious communities were to be regarded as the “ constitutive instruments ” of those establishments and that amendment of those constitutions was impossible for reasons of public policy .

The Government argued that the striking - out of the applicant ’s title from the land register did not take place until DATE . In this connection they referred to a decision taken by ORG on DATE whereby the applicant foundation , as owner , together with its tenant , had been fined for adding an additional storey onto the building without authorisation .

Prior to DATE , foundations ( vakıf ) were not recognised as legal entities in the legal system of GPE . Not having legal personality , they used to have their property registered at ORG in the name of a holy person who had died or of a living person in whom they trusted . A PERSON of DATE ORG ( DATE ) , granting foundations the right of ownership , thus recognised their legal personality . Under that PERSON , foundations were entitled to have their property registered at ORG .

After the Republic was proclaimed in DATE , LAW and LAW no . CARDINAL on the implementation and application of LAW came into force on DATE . LAW no . CARDINAL provided as follows :

“ A special PERSON will be enacted to govern the operation of foundations established before the entry into force of LAW .

Establishments founded after the entry into force of the Civil Code shall be governed by the provisions of the said Code . ”

Law no . CARDINAL was thus enacted on DATE and it recognised the legal personality of foundations set up under GPE . The legal status of foundations established after the entry into force of LAW of DATE was , however , governed by the LAW itself .

Law no . CARDINAL imposed an obligation for foundations that had been created under GPE to submit a declaration indicating , among other things , the nature and amount of their income . For that purpose it contained the following transitional provision :

“ ORG ... of foundations which have not registered with ORG ... shall file with it a declaration [ beyanname ] indicating the nature and amount of their income ... for DATE ... , within DATE from the entry into force of the present Act ... ”

LAW ( Law no . CARDINAL of DATE ) provided in LAW as follows :

“ Legal entities , in order to register transactions at ORG , shall request the higher authority of the district in which their registered offices , or those of their branches , are located , to issue them with a certificate indicating their capacity to acquire immovable property and the power of the legal entity ’s representative to enter into such transactions . ... ”

In the case - law established by its judgment of CARDINAL DATE , ORG decided that the declarations of DATE were to be regarded as the constitutive instruments of the vakıf , finalising their constitutions . Unless the declaration included an express provision to such effect , foundations were not entitled to acquire immovable property other than that declared in the said document . ORG appeared to consider that the acquisition by foundations of this type of property , in addition to that which was indicated in their constitution , could constitute a threat to national security . The court stated in particular as follows :

“ The acquisition of immovable property by legal entities set up by persons who are not NORP is prohibited . It is evident that the ORG would be exposed to various risks if it granted such foundations the capacity to acquire immovable property ...

The last paragraph of LAW provides that the management of foundations belonging to religious communities and artisans is to be entrusted to the persons and organs appointed by them . A legal status is thus created for them , without prejudice to their legal personality . Under LAW CARDINAL of LAW , the places [ yerler ] indicated in the registers and other similar documents filed with ORG following the enactment of LAW DATE are transmitted , by this means , to the register of foundations . Consequently , it is appropriate to regard the declarations filed under LAW CARDINAL of the above - mentioned LAW by such organisations DATE now foundations – belonging to communities and engaged in charitable , scientific or aesthetical activities , as being their legal foundation constitutions [ vakıfname ] . A foundation is not entitled to acquire property unless it expressly indicated its capacity to do so in its constitution and the same applies to charities . They are not entitled to acquire immovable property , whether directly or by inheritance , if it is not clearly stipulated in their declaration that they can accept gifts ... ”

Lastly , the legislation governing foundations was changed in DATE . LAW no . CARDINAL of DATE provides as follows :

“ A. The following paragraphs shall be added at the end of section CARDINAL of LAW of DATE .

Religious community foundations , whether or not they have a constitution , shall be entitled to acquire or possess immovable property , with the authorisation of ORG , in order to meet their needs for religious , charitable , social , educational , sanitary or cultural purposes .

If a request is made within DATE from the entry into force of the present Act , immovable property of which any form of possession is recorded in tax registers , leases or other documents shall be registered at ORG in the name of the foundation in order to meet the needs of such foundations for religious , charitable , social , educational , sanitary or cultural purposes . Property that has been donated or bequeathed to the foundation shall be governed by the provisions of the present section . ”

NORP Moreover , section CARDINAL of Law no . CARDINAL of DATE provides that “ religious community foundations ” are now entitled to acquire and alienate immovable property , whether or not they have a constitutive instrument .


Violation of Article 3 - Prohibition of torture (Substantive aspect)

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

The applicant was born in DATE and is now serving a prison sentence in the correctional facility USh/CARDINAL/CARDINAL in GPE .

On DATE , at TIME , the applicant was arrested on suspicion of having murdered PERSON , the mother of his girlfriend , and was brought to the GPE police station in GPE . The arrest record indicated that the applicant had been arrested on suspicion of murder . The applicant countersigned the record , noting that he had been notified of his rights and had understood them . The applicant ’s detention was subsequently extended by prosecutors and courts .

According to the applicant , upon arrival at the police station on CARDINAL DATE , he was placed in the office of ORG . The latter and another officer started beating him up . They hit and kicked him in the solar plexus , on the head , in the kidney area and the groin with a view to extracting a confession to the murder . After their prolonged beatings the applicant was placed in a cell . After a while Officers PERSON started beating him up again . They hit him on the head , on the body and in the groin , insisting that he confess to the murder . Despite the ill - treatment , he did not confess . Only when they threatened to rape his mother and girlfriend , the applicant ’s psychological resistance was broken and he confessed .

On DATE , at TIME , the applicant was examined by a forensic medical expert in the presence of the investigator in charge of the criminal case and CARDINAL attesting witnesses . The expert detected and noted in the examination record the following injuries on the applicant ’s body : a pinkish - bluish bruise on the left ear measuring QUANTITY , CARDINAL reddish - purple bruises on the left side of the thorax measuring around QUANTITY and QUANTITY and a cut on the back of the left wrist . According to the record , the persons present at the examination were apprised of their right to make declarations and objections in connection with the examination . The applicant made no observations and countersigned the examination record .

On DATE the investigator questioned the applicant about the murder but he denied all accusations . Later on DATE he wrote a statement confessing to the murder . He noted that the confession had been made without any “ moral or physical pressure ” and that he had no complaints about police officers .

On DATE and DATE the investigator questioned the applicant in the presence of his CARDINAL lawyers . The applicant maintained the confession and described in detail how he had committed the murder . He again confirmed the confession while being questioned during a video - recorded inspection of the crime scene where he was also assisted by his lawyers .

At a questioning on DATE the applicant retracted his previous statements and submitted that his confession of CARDINAL DATE had been extracted from him by force and that he had not murdered PERSON

On DATE the applicant requested the prosecutor ’s office to institute criminal proceedings against Officer “ NORP ” who had allegedly beaten him up on DATE .

The applicant submitted a written statement by witness NORP dated DATE which , in its relevant parts , reads as follows :

“ ... I was detained on DATE ... at the [ applicant ’s ] flat ... together with [ the applicant] .... We have been together since TIME on DATE ... The fact that we had spent that time together can be confirmed by PERSON , NORP , NORP and K .... All those persons who could have confirmed [ the applicant ’s ] alibi ... had been known to the investigation but were never questioned .... Since we were sleeping in the same flat , I saw [ the applicant ’s ] underwear ; there had been no traces of blood on it . Thus , the blood [ stains ] found on the applicant later could have appeared on his clothes only after we had been separated at the police station . [ The applicant ] was clam and reacted adequately . I am convinced in his innocence ... ”

On DATE an investigator with the PERSON district prosecutor ’s office of GPE launched an inquiry into the applicant ’s allegations of ill - treatment which he had submitted on DATE ( see paragraph CARDINAL above ) . According to the records of interview submitted by the Government , the investigator questioned Officer PERSON . on DATE , Officer PERSON on DATE and Officers L. and ORG . on DATE . The investigator also ordered a forensic expert examination of the applicant ’s injuries . The examination was carried out on DATE .

By a decision of DATE , the investigator refused to institute criminal proceedings against them for lack of evidence of a criminal offence . The decision was based on the applicant ’s forensic medical examination and the statements of ORG . , PERSON . , PERSON and S. According to the expert ’s report , the bruises to the applicant ’s chest and ear had been caused by a blunt object DATE before his arrest on CARDINAL DATE and the incised wound on his left hand could have been caused on DATE , the date when he had allegedly committed the murder . ORG . , PERSON . , PERSON and PERSON submitted that the applicant had confessed voluntarily and that they had never forced or threatened him . The applicant was given a copy of the decision in the presence of his lawyers on DATE .

By a decision of DATE , the investigator refused to institute criminal proceedings against Officer “ NORP ” , because no such person had ever served at the GPE police station .

On DATE and DATE the applicant lodged further complaints with ORG about the alleged beatings .

On DATE the applicant complained to the ORG of GPE about the prosecutor ’s refusal to establish the persons who could have witnessed the victim on the date of the presumed murder . He also complained about the decisions of DATE and DATE refusing to institute criminal proceedings against the police officers . In particular , the applicant submitted that the colour of his bruises ( rose and blue and not yellow and brown ) had indicated that they were freshly inflicted and that the expert ’s conclusion as to the date of their infliction had thus been wrong . The applicant further claimed that witness A. could have confirmed that he had not had any bruises on his body before his arrest . On DATE the ORG disallowed the complaints for lack of territorial jurisdiction .

On an unspecified date the applicant lodged similar complaints with ORG .

On DATE ORG dismissed the complaints , finding that the inquiry case file had , at the applicant ’s own request , been enclosed in the case file in the criminal proceedings against him and that the criminal case had been sent for trial to ORG . Accordingly , the ill - treatment complaint was to be examined by the trial court . The applicant appealed , alleging that he had not been summoned to the hearing on DATE .

On DATE , ORG heard the applicant ’s counsel and upheld the decision . It found that since the applicant had complained in essence of inadmissibility of evidence in relation to the charge against him , ORG had not been entitled to examine the issue , given that the case had been about to be tried by another court . It further noted that the applicant ’s lawyer had been present at the hearing on DATE and had submitted arguments on his behalf and that the applicant had never asked to be brought to the hearing .

On an unspecified date the applicant ’s criminal case was transferred for trial to the Babushkinskiy District Court . On court hearing DATE the applicant was allegedly not provided with food .

On DATE ORG found the applicant guilty of murder and sentenced him to CARDINAL years’ imprisonment . The judgment referred to statements from CARDINAL witnesses , in particular a person who had found and identified the knives with which the applicant had allegedly stabbed the victim ; CARDINAL post - mortem examinations of the victim , several DNA tests establishing a match between the samples of the victim ’s blood and the bloodstains found on the applicant ’s clothes ; statements from experts , and further material evidence . It did not refer to the applicant ’s confession dated DATE . However , it took into account his statements of CARDINAL and CARDINAL DATE and the video record of the crime scene inspection .

NORP The trial court dismissed as unfounded the applicant ’s allegations of ill - treatment . It noted that Officers PERSON . , PERSON . , , PERSON , when questioned in open court , denied having beaten the applicant up . In the same vein , attesting witnesses present during the crime scene inspection and the applicant ’s medical examination on CARDINAL DATE testified to the court that the applicant had not complained about the alleged ill - treatment in their presence . Furthermore , his submissions were contradicted by statements from independent witnesses NORP and ORG , who had been arrested , brought to the police station and detained there together with the applicant , and who had testified to the court that nobody had beaten him up or threatened him in their presence . According to the forensic examination , the applicant ’s injuries had been sustained DATE before his arrest . Furthermore , the court considered that he had waited for DATE before complaining about the alleged ill - treatment and , when questioned about it by the court , made contradictory statements about the circumstances in which he had sustained the injuries . Thus , he alleged once that he could have sustained the ear injury in a scuffle with skinheads prior to his arrest , on another occasion he claimed that nobody had beaten him up . Moreover , witness ORG testified to the ORG that he had seen the applicant on DATE sleeping under a bench at a subway station in a state of intoxication .

According to the applicant , from TIME on DATE until TIME on DATE he was held in a cell at the GPE police station . Throughout his detention there he was not given food or drink and had nowhere to sleep because the cell had no sleeping place .

On an unspecified date an investigator with the PERSON District prosecutor ’s office requested the head of the temporary detention ward of the Losinoostrovskiy police station to provide him with information on , among other things , the date of the applicant ’s admission to the ward . In response , the head of the ward certified that on DATE , at TIME , the applicant had been placed in the GPE police station and that on DATE , at TIME , he had been admitted to the temporary detention facility of the Losinoostrovskiy police station .

On DATE and DATE the applicant complained to the GPE prosecutor ’s office that from the moment of his arrest on DATE he had been detained for DATE at the GPE police station without food or drink . His complaints were left without reply . Complaints in similar terms were raised by the applicant ’s relatives in their open letter to ORG dated DATE .

According to the Government , from DATE the applicant was held in the temporary detention facility of the Losinoostrovskiy police station and was brought to the GPE police station for investigative action . On their completion he was brought back to the Losinoostrovskiy police station .

The applicant was detained in GPE IZ-CARDINAL/CARDINAL remand centre from DATE to DATE .

For most of the period the applicant was held in cell no . CARDINAL measuring QUANTITY . It had CARDINAL - tier bunks and accommodated QUANTITY inmates . CARDINAL bunks were always occupied by the inmates’ bags , leaving QUANTITY sleeping places for the inmates . Detainees had to sleep in shifts , on the floor , under the bunks and under the table . CARDINAL or more inmates had to share CARDINAL bunk . The cell space per detainee was reduced to QUANTITY . The situation was the same in other cells where the applicant was detained . The administration only once provided him with bedding and even when his relatives brought him bedding the wardens always seized it .

Cell no . CARDINAL had CARDINAL windows with metal bars and until DATE the windows were covered with metal shutters which barred natural light and airflow . The windows were glazed only in DATE and sometimes detainees had to stuff them with wet linen , which served as a replacement for glass when it was frozen , permitting them to maintain the air temperature at around CARDINAL.CARDINAL ºC. The stuffing was routinely removed by the wardens . The lights and TV were on DATE and night . As there was no ventilation , it was particularly hot in DATE . Allegedly , the administration seized the electric fans provided by the detainees’ relatives and then leased them to the inmates for money .

The sanitary conditions in the cells were unsatisfactory . The toilet was QUANTITY high . It was separated from the living area by a partition measuring QUANTITY in height and the inmates had to use the bedding supplied by their relatives to secure at least some privacy . The wardens routinely removed their hand - made partitions so that the applicant had to answer the needs of nature in view of other inmates . Moreover , because of the overcrowding the toilet was always occupied and he could not always have access to it in case of need . The toilet was QUANTITY from the table at which the inmates had their meals . The food was of poor quality and had an unpleasant smell . The inmates went on hunger strike several times in protest at the poor quality of the food .

Detainees were allowed to take showers only once DATE , in a communal shower . CARDINAL inmates were at the same time given TIME for a shower while only CARDINAL to twelve taps were working properly . They could not wash themselves or their clothes properly and had to negotiate with wardens who agreed for money to extend the shower time to TIME .

The applicant received no medical treatment , in particular in respect of his acute tooth pain . He was first given dental treatment only when he arrived at the correctional colony in DATE .

Once a day the applicant was allowed to take a TIME walk in a stone courtyard measuring QUANTITY , at the same time as up to CARDINAL others .

On many occasions the applicant complained about the conditions of detention to the administration of the remand centre but his complaints were left without reply .

In support of his description of the conditions of detention the applicant produced written statements by PERSON , NORP , PERSON . and PERSON . who had been detained in the same remand centre at the relevant time and confirmed his submissions concerning , in particular , overcrowding , lack of individual sleeping places and bedding and inadequate medical assistance . The applicant also submitted sketched plans and photographs of cell no . CARDINAL and the courtyard . He also furnished an article dated DATE and published on the internet site newsru.com , summarising the results of the checks carried out by ORG office in DATE and concerning conditions of detention at remand centres in GPE . With reference to the results of the check - ups , it was stated that although the overall number of inmates held in the CARDINAL remand centres of GPE had decreased over a DATE period , it was still twice the design capacity . A considerable number of detainees were not provided with individual sleeping places .

According to the Government , throughout his detention in the remand centre the applicant was held in the following cells :

- cell no . CARDINAL measuring QUANTITY , having CARDINAL bunks and accommodating CARDINAL inmates ;

- cell . No.CARDINAL measuring QUANTITY , having CARDINAL bunks and accommodating CARDINAL inmates ;

- cell no . CARDINAL measuring QUANTITY , having CARDINAL bunks and accommodating CARDINAL inmates .

The cells had central heating , water supply and drainage ; each cell was equipped with a toilet and a wash basin . The toilet was separated from the living area by a brick partition not QUANTITY in height and fully securing the necessary privacy . Depending on their size , the cells had CARDINAL or CARDINAL windows with bars ; the windows were glazed and permitted the inmates to read and work by natural light . The artificial lighting conformed to the relevant standards and at night its brightness was reduced to a level permitting supervision of the detainees . During the applicant ’s detention there had been no artificial ventilation in the cells of the remand centre , but it was introduced subsequently . The air temperature , the humidity level and the quality of water in the applicant ’s cells conformed to the relevant standards .

NORP The applicant was properly fed and a medical assistant regularly checked the quality of food and the compliance with the requirements in force as regards its storage . The applicant was regularly examined by the medical staff of the facility and received adequate medical assistance .

The medical unit was equipped with all necessary medications . According to an excerpt of the applicant ’s medical record submitted by the Government , he was examined by a dentist on CARDINAL DATE and his condition was assessed as satisfactory . He was diagnosed with chronic caries of CARDINAL teeth but no need for urgent medical intervention was established . Upon arrival at the correctional colony , the applicant was treated for caries of CARDINAL teeth , which were filled .

To support their submissions , the Government furnished a number of certificates issued by the head of remand centre IZ-CARDINAL/CARDINAL in DATE and several excerpts from the applicant ’s medical record .

Section CARDINAL of ORG Federal Law no . CARDINAL-FZ of DATE ) provides that detainees should be kept in conditions which satisfy health and hygiene requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have CARDINAL four square metres of personal space in his or her cell . Detainees should be given free of charge sufficient food to maintain them in good health in line with the standards established by ORG of GPE ( Section CARDINAL ) .

The DATE LAW ( Federal Law No . CARDINAL - CARDINAL on challenging acts and decisions infringing individual rights and freedoms ) , as amended in DATE , provides for a judicial avenue for claims against public authorities . It states that any act , decision or omission by a state body or official can be challenged before a court if it encroaches on an individual ’s rights or freedoms or unlawfully vests an obligation or liability on an individual . In such proceedings the court is entitled to declare the disputed act , decision or omission unlawful , to order the public authority to act in a certain way vis - à - vis the individual , to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom . If the court finds the disputed act , decision or omission unlawful this gives rise to a civil claim for damages against the ORG .

The relevant extract from the CARDINALnd ORG of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) ( ORG ( CARDINAL ) CARDINAL ) reads as follows :

“ DATE . Custody by the police is in principle of relatively short duration ... However , certain elementary material requirements should be met .

All police cells should be of a reasonable size for the number of persons they are used to accommodate , and have adequate lighting ( i.e. sufficient to read by , sleeping periods excluded ) and ventilation ; preferably , cells should enjoy natural light . Further , cells should be equipped with a means of rest ( e.g. a fixed chair or bench ) , and persons obliged to stay TIME in custody should be provided with a clean mattress and blankets .

Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions , and be offered adequate washing facilities . They should be given food at appropriate times , including CARDINAL full meal ( i.e. something more substantial than a sandwich ) DATE .

The issue of what is a reasonable size for a police cell ( or any other type of detainee / prisoner accommodation ) is a difficult question . Many factors have to be taken into account when making such an assessment . However , ORG delegations felt the need for a rough guideline in this area . The following criterion ( seen as a desirable level rather than a minimum standard ) is currently being used when assessing police cells intended for single occupancy for stays in excess of TIME : in the order of QUANTITY , QUANTITY or more between walls , QUANTITY between floor and ceiling . ”

The ORG reiterated the above conclusions in DATE ORG ( ORG ( DATE ) CARDINAL , § MONEY ) .

The part of the ORG to ORG on the visit to GPE carried out by the ORG from DATE ( ORG ( DATE ) CARDINAL ) read , in so far as it concerned the conditions of detention in administrative - detention cells located within police stations , as follows :

“ CARDINAL . Similar to the situation observed during previous visits , none of the district commands ( RUVD ) and local divisions of ORG visited were equipped with facilities suitable for TIME stays ; despite that , the delegation found evidence that persons were occasionally held TIME at such establishments ... The cells seen by the delegation were totally unacceptable for extended periods of custody : dark , poorly ventilated , dirty and usually devoid of any equipment except a bench . Persons held TIME were not provided with mattresses or blankets . Further , there was no provision for supplying detainees with food and drinking water , and access to a toilet was problematic .

The ORG reiterates the recommendation made in its report on the DATE visit ( cf . paragraph CARDINAL of document ORG ( DATE ) CARDINAL ) that material conditions in , and the use of , cells for administrative detention at district commands and local divisions of ORG be brought into conformity with ORG CARDINAL/CARDINAL on the general conditions and regulations of detention in administrative detention cells . Cells which do not correspond to the requirements of that Order should be withdrawn from service .

Further , the ORG reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for TIME . ”


CISTERCIÁCKÉ OPATSTVÍ VYŠŠÍ BROD v. THE CZECH REPUBLIC

The applicant , PERSON opatství PERSON , is a religious order founded in DATE . It is represented before the ORG by PERSON , a lawyer practising in GPE .

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

The applicant is the owner of CARDINAL gothic paintings , known as the “ Collection of the Master of PERSON ” . In DATE the collection was seized by the ORG and subsequently deposited in ORG in GPE .

On DATE law no . CARDINAL on the adjustment of certain property relations of holy orders and congregations and of the NORP of LAW ( zákon o úpravě některých majetkových vztahů řeholních řádů a kongregací a arcibiskupství olomouckého ) ( hereafter “ LAW ” ) entered into force . It contained an exhaustive list of property and of church entities entitled to acquire it upon the LAW ’s entry into force . Neither the collection nor the applicant was listed therein .

On DATE ORG recognised the applicant ’s property rights to the paintings , but refused to surrender the collection .

On DATE the applicant sought to recover the collection by means of a civil action for determination of the ownership of the paintings , brought against ORG .

In its judgment of CARDINAL DATE the GPE CARDINAL ORG ( obvodní soud ) found that , in general , the ORG had acquired control over the church property in DATE pursuant to law no . CARDINAL . It noted that ORG ( ORG matice ) , a special ORG agency , was founded by decree no . CARDINAL to administer church property . The court granted the applicant ’s action , basing its finding on documentary evidence , including a contract of deposit concluded by ORG and ORG on DATE , according to which the former had deposited the collection of paintings with the latter ; and an offer by ORG of DATE to donate the collection to ORG , under the terms of which the ownership of the paintings was to be transferred to the State on DATE of the acceptance of the offer . The acceptance of the offer by ORG is dated DATE .

The court held in particular :

“ The original ownership rights to the collection are not challenged by [ ORG ] . What is disputed is the validity of the contract of donation ...

It ensues from the evidence taken ... that ORG knew who the real owner of the items was and could not , therefore , be in good faith that it was the owner . The transfer of the ownership of the items [ by the donation ] could not , therefore , have any legal consequences and remained ineffective with regard to [ the applicant ] . Since no legislation or decision provided for the transfer of the ownership from the plaintiff to the ORG or to any other person , [ the applicant ] is the owner ... ”

The court further stated that the legislation on restitution , in particular the LAW , was not applicable to the present case , as it applied only to situations where ownership of property had been transferred to the ORG , not to situations where such a transfer was not effected . In the latter case , the ORG seized and held property without acquiring ownership of it . The owner of such property was therefore eligible to claim that it be surrendered to him by using general civil - law actions intended to protect ORG rights in respect of any third person interfering with their property rights . The court concluded that the LAW did not preclude the applicant ’s standing to have recourse to this procedure to defend its property rights against ORG .

On DATE ORG ( městský soud ) upheld this judgment , ruling in particular :

“ [ R]egard must be had to ORG judgment of CARDINAL DATE no . CARDINAL PERSON ... according to which the church property was ... seized by the ORG using a set of practices typically used to deprive holy orders and congregations of their property ... The [ A]ct applies .... in particular to these practices ... It applies at least in so far as it governs the restitution of church property taken away from its owners by the ORG pursuant to these practices . ... If [ the LAW ] in its enumerative list provided for a remedy for injustices only in respect of certain seized property [ seized in a certain way ] , and not in respect of other property , even if the latter was seized in the same way as the former ( by donation by ORG ) , then – as [ the LAW ] is lex specialis – the logical conclusion is that a person otherwise entitled ( to the property listed therein ) , does not have standing to claim property rights to the property which is not listed there . ... ORG took a similar approach in its decision of CARDINAL DATE no . CARDINAL Cdo CARDINAL/CARDINAL . ”

The court continued by adopting a different approach , stating :

“ [ The Municipal ] court dissented with this opinion , e.g. in its judgment of DATE no . CARDINAL Co DATE , in which it found that [ the Act ] is a specific instrument atypical of legislation on restitution , and in so far as it does not interfere with civil law ... , [ for instance in the area of ] invalidity of legal acts and of conditions for claiming it before courts , the general law [ i.e. civil law ] remains unaffected ... ”

The court concluded that the case - law of the higher courts , to which it referred , would lead to the LAW ’s interpretation impairing the protection of the property rights of those owners who were not in possession of their property . In its view , this would be contrary to the constitutional law .

ORG filed an appeal on points of law ( dovolání ) with ORG ( PERSON ) which , on DATE , found that the lower courts had not applied the LAW correctly and therefore quashed their judgments . Referring to its case - law , the court reiterated that the LAW had to be interpreted as part of the legislation on restitution which was lex specialis in respect of the civil law and was thus to have precedence over the civil law . It stated :

“ The court can not accept the position adopted by the appellate court . There is no doubt that the Act forms by its nature a part of the legislation on restitution ....

It is not acceptable to reduce [ the application of the LAW ] in cases where the property was seized in accordance with the law then in force ... ”

ORG supported this conclusion by stating that the restitution legislation was drawn up by the ORG to mitigate the injustice caused by communist rule in GPE in the area of property rights . When adopting a suitable legislative technique for the restitution of church property provided for by the LAW , the legislator opted to include an exhaustive list of property to be restored and added an enumerative index of church entities entitled thereto . In the court ’s view , it was therefore irrelevant in terms of the restitution of this property whether the ORG had seized it in accordance with or contrary to the law applicable at the time of seizure .

In a judgment of DATE ORG , having been bound by ORG opinion , dismissed the applicant ’s action without taking any further evidence .

On DATE ORG upheld that judgment .

The applicant appealed on points of law before ORG , which rejected its appeal on DATE .

On DATE the applicant filed a constitutional appeal ( ústavní stížnost ) contending that the lower courts had failed to protect its property rights and that the principle of equality of arms had not been respected in the proceedings before ORG , as the appeal on points law submitted by ORG had been admitted for examination on the merits while its own appeal had not . It further contested the lack of assessment of the facts by ORG in the proceedings following the judgment of ORG .

On DATE ORG ( PERSON senát ORG soudu ) rejected the applicant ’s constitutional appeal , finding in particular :

“ In respect of the [ the applicant ’s ] arguments concerning ... [ the LAW ] , ORG referred to the opinion of its Plenary Session of DATE no . Pl . ÚS – st . CARDINAL/CARDINAL published [ in ORG ] under no . DATE , in which it was found that the Act forms part of the legislation on restitution and constitutes an obstacle to the application of the general law . Thus , ORG , being bound by the cited opinion ... , considered the reasoning of ORG ... challenged by the applicant to be in conformity with the constitutional law . ”

Under LAW ) , an owner is entitled to seek protection from a person interfering with his property rights ; in particular , the owner is entitled to claim that his / her property be surrendered by a person possessing it contrary to law .

Code of Civil Procedure ( law no . CARDINAL/CARDINAL )

Under Article CARDINAL(c ) an individual may bring an action seeking a judicial decision determining the existence or non - existence of a certain right if there is a compelling legal interest in such identification .

Under LAW ( CARDINAL ) decisions in force adopted by an appellate court may be challenged by an appeal on points of law .

Law no . CARDINAL on the adjustment of certain property relations of holy orders and congregations and of the NORP of LAW ( “ LAW ” )

The LAW states that the purpose of the LAW is to provide for the redress of injustices which were caused to holy orders and congregations in DATE , especially by unlawful deprivation of their immovable property .

Under section CARDINAL(CARDINAL ) immovable property specified in Appendix no . CARDINAL is declared to be the property of the respective holy orders and congregations listed in the Appendixes on DATE of the Act ’s entry into force . LAW ) provides that on DATE , immovable property specified in Appendix no . CARDINAL is declared to be the property of the NORP of LAW . Under section CARDINAL(CARDINAL ) movable property which was on DATE located in immovable property specified in Appendixes no . CARDINAL , CARDINAL and DATE is declared to be , upon the Act ’s entry into force , the property of the respective orders , congregations or the NORP of Olomouc , provided that such property exists and can be located .

Opinion no . Pl . ÚS CARDINAL/CARDINAL of DATE ( published in ORG under no . CARDINAL )

In this opinion ORG took the view that the LAW must be considered as a part of the legislation on restitution . Therefore , it bars the application of the general law .

According to ORG case - law ( for example , judgments no . CARDINAL Cdon DATE CARDINAL DATE , no . CARDINAL Cdon CARDINAL/CARDINAL of DATE , no . CARDINAL Cdon CARDINAL/CARDINAL of DATE , no . CARDINAL PERSON of CARDINAL May CARDINAL ) , an entity entitled , pursuant to the LAW , to the property listed in the annexes thereto does not have a standing to claim property rights to its property seized by the ORG which is not listed in the annexes of that LAW .

In its judgment of DATE no . CARDINAL Co CARDINAL/CARDINAL - CARDINAL ORG ruled that the LAW is a specific instrument atypical of the restitution legislation , and in so far as it does not interfere with civil law , for instance in the area of the invalidity of legal acts and conditions for its vindication , the general - law ( namely , civil - law ) regulation remains unaffected .

Relying on LAW No . CARDINAL to the LAW , the applicant complained that the national courts had refused to examine the merits of its action and to uphold its claim after the quashing judgment of ORG , although the national courts establishing the facts of the case had found that it had been , and had never ceased to be , the owner of the paintings . Consequently , the applicant had been in an absurd situation , having been the acknowledged owner of the property in question , but unable to enforce its property rights vis - à - vis ORG .

The applicant further complained under LAW that , after its quashing judgment , by its binding guidelines ORG had prevented the lower national courts from assessing the facts and from applying the relevant law . The applicant had thus been denied a fair trial .

The applicant finally complained of an impairment of the principle of equality of arms , as its appeal on points of law had been declared inadmissible by ORG , while the appeal based on the same ground submitted by the defendant had been granted .


Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE criminal proceedings were instituted on account of a traffic accident DATE which had caused the death of a person . The victim , PERSON , was taking a walk in the street with his friend , PERSON , when he was run over by a car .

On DATE the applicant , who was the driver of the car in question , was charged under LAW with involuntary manslaughter resulting from a violation of traffic rules .

A number of witnesses made statements during the investigation , including QUANTITY eyewitnesses PERSON stated that he was taking a walk with PERSON , when he noticed a car driving down the road at a speed of QUANTITY . When the car was QUANTITY away from them , it suddenly made a sharp turn and headed towards them . He managed to dodge , but PERSON was run over . No sound of brakes was heard before the collision . Similar statements were made by witnesses PERSON and O. , although the latter stated that the car was going at a speed of QUANTITY . It appears that a confrontation was supposed to be held between the applicant and witness O. but the latter failed to appear .

On DATE the indictment was finalised and transmitted to the ORG and ORG of GPE ( ORG քաղաքի ORG և GPE համայնքների առաջին ատյանի դատարան ) .

On DATE the ORG and ORG of GPE found the applicant guilty as charged and sentenced him to DATE imprisonment . This judgment was based on the statements of witnesses PERSON , the statements of CARDINAL other witnesses , the statements of an auto - technical and medical experts , all of whom were questioned in court , the statement of witness ORG made during the investigation , an auto - technical and medical expert opinions , and the results of examinations of the scene of the accident and of the applicant 's car .

On an unspecified date the applicant lodged an appeal , in which he apparently raised the issue of non - appearance of witness O.

On DATE the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ) dismissed the appeal and upheld the judgment of ORG . As regards witness ORG 's non - appearance at the confrontation , ORG found :

“ [ Witness O. ] has stated ... that he was indeed unable to come to the confrontation but wishes to indicate that [ the applicant ] is a police officer , has connections and is able somehow to hurt his family . On DATE at TIME he noticed [ the applicant ] and a group of men next to the building of the district prosecutor 's office[. R]ealising the reason why they were gathered there , he did not step out of the car and left from [ there ] . He is ready to confirm his statements at a confrontation with [ the applicant ] , including in court , if his security is ensured .

According to a certificate present in the case file [ ( case page CARDINALa ) ] , the confrontation between [ witness O. ] and [ the applicant ] was not possible . ”

NORP On DATE the applicant lodged an appeal on points of law against this judgment . In his appeal , he indicated that the court judgment was unlawful since it had been adopted with a substantial violation of procedural law . The applicant requested that the judgment of ORG be quashed and a new judgment be adopted . He also requested that the judgment of ORG be quashed . The applicant added that the main arguments would be presented in an additional appeal following the receipt of a copy of ORG judgment .

By a letter of CARDINAL DATE a copy of ORG judgment was sent to the applicant .

According to a certificate issued on DATE by the head of the relevant post office , this letter was received at the post office on DATE and was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law as a supplement to his appeal of DATE , which contained CARDINAL pages of legal arguments . The applicant stated at the outset that a copy of the judgment was received by him on DATE . He went on to complain , inter alia , that the statements of witness ORG made during the investigation had been used as a basis for his conviction . However , he had not been afforded an opportunity to examine that witness at any stage of the proceedings .

On DATE ORG examined and dismissed the appeal of DATE , finding :

“ The argument put forward by [ the applicant ] in his appeal that the judgment is unlawful since it has been adopted with a substantial violation of procedural law , therefore ... the judgment of the first instance court must be quashed and a new judgment must be adopted , is unsubstantiated . ... Article CARDINAL of the Code of Criminal Procedure clarifies the notion of a substantial violation of procedural law and paragraph CARDINAL of this Article enumerates those specific grounds on which a judgment is to be quashed in any event . In spite of this , [ the applicant ] did not indicate in his appeal on points of law on which grounds ORG ... should quash the judgment of ORG and remit the case for a fresh examination . Whereas ORG shall review a judgment of ORG , on the basis of [ the applicant 's ] appeal , within the grounds presented in the appeal ... ”

ORG further stated :

“ ... as regards the new appeal on points of law filed in supplement to [ the appeal of DATE ] , it was lodged in violation of the time - limit for appeal prescribed by LAW , therefore ORG will not examine that appeal . ”

According to LAW , violation of traffic rules by a person driving a car , which has caused involuntary manslaughter , shall be punishable by imprisonment for a period not exceeding DATE .

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

“ CARDINAL . Procedural actions , which have been performed after the expiry of a time - limit , shall be considered invalid , unless the time - limit is restored .

NORP The person concerned shall apply with a motion or a request to have the missed time - limit restored to the authority dealing with the case . ...

A time - limit which has been missed for valid reasons must be restored by a decision of the authority dealing with the case , upon a motion of the person concerned . ... ”

“ CARDINAL . The investigator is entitled to arrange a confrontation of CARDINAL persons who have been interrogated beforehand and whose statements contain substantial contradictions . The investigator is obliged to arrange a confrontation if there are substantial contradictions between the statements of the accused and some other person . ”

“ CARDINAL . If CARDINAL of the witnesses , an expert or a specialist who has been summoned to the court hearing does not appear , the court , after hearing the opinion of the parties , shall decide to continue

“ CARDINAL . Reading out at the trial of witness statements made during the inquest , the investigation or a previous court hearing ... is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court , if there is substantial contradiction between those statements and the statements made by that witness in court , and in other cases prescribed by this Code . ”

“ CARDINAL . A judgment or a decision of ORG shall enter into legal force DATE after the date of its pronouncement .

A judgment or a decision of ORG shall be served on the convicted or acquitted person , his or her advocates and lawful representatives ... , provided they participated in the examination of the case in ORG , not DATE after the date of its pronouncement . ”

“ CARDINAL . In cases when an appeal on points of law ... was lodged out of time , it shall be left unexamined by a decision of ORG . ”

“ CARDINAL . An appeal on points of law against a judgment or a decision of ORG ... can be lodged within DATE from the date of delivery of the judgment or decision .

Appeals lodged out of time shall not be examined . ”

“ CARDINAL . ORG shall review ... the judgments and decisions of ORG which have not entered into force within the limits of the grounds raised in the appeal on points of law . ... ”

According to LAW , the maximum speed limit in urban and rural areas was QUANTITY .


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

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

Prior to her death , at DATE , PERSON had lived with the applicant , who was DATE older than her , for DATE .

PERSON body was discovered early on TIME Wednesday DATE in an alley behind the street where she had lived with the applicant . It was dressed in a blue tracksuit and had been covered in household rubbish and set on fire . Because the body was badly burned it was impossible to identify the exact time or cause of death , but it was possible to rule out shooting , stabbing , beating and strangulation , and forensic experts considered that PERSON might have died through suffocation or drowning . It appeared that PERSON had been dead before her body was burned and that the fire had been built around her . There was nothing in the fire to connect it with the applicant .

The applicant was charged with murder , which he denied .

It was the prosecution case that the applicant killed PERSON at home some time TIME DATE and TIME on DATE , and that he moved her body to the alley on TIME . The prosecution evidence included the following matters . On TIME , after decorating at PERSON grandmother 's house DATE , the applicant and PERSON returned home to find that a debt collector had left a card in relation to a GBP CARDINAL bank loan which was overdue . The couple argued , and PERSON decided to stay at home while the applicant went to a public house to meet several members of her family . She spoke to her sister on the telephone at TIME , to say that the argument had been resolved and that she was feeling better . She promised to call her sister again the following day after the debt collector had visited . However , she did not make the call : this was the last any member of her family heard from her . The following day , DATE , at TIME the debt collector called at the applicant 's house . He gave evidence that the applicant , apparently very agitated and wearing shorts and a t - shirt , would not let him into the house but insisted that they talked in the collector 's car . Shortly before TIME the applicant went to a do - it - yourself shop where he bought a decorating item . The prosecution alleged that this was an attempt by him to create an alibi since the purchase was timed and he kept the till receipt . He later visited members of PERSON family , saying that she was missing and that he was looking for her , and thereafter was alone for only very short periods until the body was found . On DATE TIME he returned home , accompanied by PERSON sister and her boyfriend , and was able to tell the sister , within TIME of looking into the wardrobe , that a blue tracksuit , a black jacket and skirt and a pair of black court shoes were missing .

Early on DATE TIME the applicant reported PERSON disappearance to the police . He was examined by a police doctor on DATE TIME and found to have minor scratch marks on his face and chest which were assessed as being DATE , and not inconsistent with finger nail scratching . The applicant said that these had been caused either by decorating or by playing with his cat on DATE : the police doctor was not able to exclude these causes either . None of the people who met the applicant in the public house on DATE TIME could remember seeing MONEY .

The applicant 's house was searched on DATE and found to be very tidy ( which was not , apparently , unusual ) . The bath mat and other items had been recently washed .

The applicant claimed that he and Ms NORP had agreed not to let the debt collector into the house , and that he had last seen her on DATE TIME when he had left to talk with the debt collector ( in the applicant 's account he was wearing jeans , not shorts ) . He believed that PERSON must have been killed by a stranger at some time after TIME on DATE .

On TIME of DATE of the applicant 's neighbours , PERSON , had told him that her DATE daughter , ORG , had been playing in the street on DATE TIME and had told her that she had seen PERSON . The police interviewed ORG on DATE , when she gave the following answers to their questions :

“ Q : When do you remember seeing PERSON ? A : DATE . Q : How do you know it was DATE ? A : Because we never went to school and PERSON said we could play out . Q : Do you go to school on DATE ? A : No . Q : How do you know it was n't DATE ? A : Because on DATE we had off and then it was DATE . ... Q : [ ORG ] was asked to stand and imagine she was stood on FAC with her home address behind her ; then asked to point which direction she saw PERSON walking first . A : ORG : Then what happened ? A : She went to the top of the street , turned round and walked the other way . Q : Who was on the street ? A : Just PERSON . ... [ ED ] and [ CARDINAL other children were ] there too . Q : Anybody else ? A : When PERSON walked to the top of the street , when she turned , a man followed her . Q : Where did the man come from ? A : The bottom of the street where PERSON walked to , then turned . Q : Did the man walk on the side of the street where your house is ? A : No where PERSON walked on the number CARDINAL side where [ ED ] lives and the man followed her . ... Q : Where did he go ? A : He went to the top of the street and then I did n't see him . Then PERSON had to go in because he was still in his pyjamas . Q : Did you see where PERSON went to ? A : No . ... Q : So when the man 's gone to the end of your street he 's gone left ? A : Yes . Q : Did you see which way PERSON went at the end of your street ? A : No . ... Q : Can you remember anything unusual happening on DATE when you were in the street ? Did you hear anything ? A : No . Q : What about LOC , did you hear them ? [ Added note : There was a marching band playing in the neighbourhood on TIME ] A : Yes . Q : Did you ? A : Yes . Q : What did you do when you heard them ? A : Standing at the corner ... Q : Which one ? A : Number CARDINAL side . ... Q : What did you see ? A : Nothing because we missed them . ... Q : Can you remember what PERSON was wearing ? A : She had a big black coat on ? Q : Did she have anything on her legs ? A : PAUSE . Q : Did you see her legs or did she have trousers on ? A : Ca n't remember . Q : Can you remember anything else she had with her ? A : A big carrier bag . Q : Anything else ? A : A handbag . Q : What colour was the carrier bag ? A : White . Q : Did it have any writing on it ? A : I ca n't remember . Q : What colour was the handbag ? A : Black . ”

Another girl , ORG , who was DATE at the time , was also interviewed by the police on DATE and gave a statement saying that she had seen PERSON followed by a stranger in FAC between TIME on DATE .

Both children were listed as prosecution witnesses and their evidence was served on the defence prior to the trial .

The applicant 's first trial took place in ORG in DATE . The applicant was represented by experienced leading and junior counsel . It was not until the trial had started that the prosecuting counsel realised that the evidence of ORG and ORG did not support the prosecution case . He therefore decided not to call the QUANTITY girls but instead to tender them for cross - examination .

The judge , who approved this procedure , was asked by the defence counsel whether , before giving evidence , the girls could be shown the statements they had made to the police in DATE .

ORG was permitted by the trial judge to refresh her memory by reading her statement before going into the witness box , and she gave evidence consistent with her statement .

When ORG entered the court room she was very distressed . The judge refused to allow her to read or be reminded of her interview . His reasons for this decision were not clear , but ORG in its judgment of DATE speculated that it might have been because he had , wrongly , received the impression that the interview notes relating to ORG had not been signed by her and were not , therefore , reliable ( in fact the notes had been read to her by the police officer at the time of the interview , and the girl had signed them as being an accurate record ) . In the witness box she was unable to remember being questioned by a police woman or seeing PERSON for the last time .

In the course of his summing - up the judge said , of ORG 's evidence : “ Of course , it is not suggested by the prosecution that [ ED ] is trying to mislead you about the matter but young children do imagine things , particularly when they have been warned against strangers and cars and so forth , and it is suggested that [ ED ] is at best confused . ”

The jury retired to consider their verdict at TIME on DATE . The court subsequently adjourned until DATE , when the jury retired again at TIME They returned at TIME , when they informed the judge that they had not reached a verdict , so he allowed them to continue their deliberations until TIME , when he adjourned until TIME on DATE because the jury had still not reached an agreement . Finally , at CARDINAL a.m. on DATE , the jury convicted the applicant of murder , by a majority of CARDINAL to CARDINAL . The judge duly sentenced him to life imprisonment .

The applicant appealed against conviction . In its judgment of DATE , ORG observed that had the interview notes been put to ORG :

“ ... it may be that her memory would have been refreshed , and she would have been able to fill in the gaps which her evidence undoubtedly left .

In so doing , it may well be that she would have provided valuable corroboration for the other little girl , [ ED ] , and it may be that that would then have provided the jury with testimony that would have been worrying , in the light of the crucial finding that the jury had to make as to the time of death . We can do no more than speculate about it .

We are of the view that when cross - examining , [ counsel for the defence ] was entitled to use the earlier statement that this girl had made , because what she was telling the jury when she indicated that she could not help as to the time and movement of the deceased on TIME was plainly inconsistent with what she had told the police during the course of the interview much more proximate in time to the events of which she was being invited to speak .

So , for whatever reason ( and we do not seek to ascribe blame ) there was here an unfortunate situation which in our judgment amounted to a material irregularity in the trial process . ”

ORG therefore quashed the conviction and ordered a retrial , observing :

“ ... we have come to the conclusion , after very anxious consideration , that this appellant is entitled to have a fresh jury consider the whole of this case . That is very unfortunate indeed , particularly with the passage of time that has occurred . ... ”

The retrial took place in DATE . The defence team made several attempts to discuss the case with ORG and her parents before the trial started , but the parents were unwilling for ORG to give evidence and did not , therefore , make contact until the child was summonsed to attend as a witness on DATE at ORG . The applicant 's solicitor then outlined the trial procedure to ORG and read her the statement which she had made to the police on DATE . ORG told the solicitor that she had no memory whatsoever of the matters referred to therein , and it was therefore decided that it would not be possible or appropriate to call her as a witness . PERSON was called , however , and again gave testimony consistent with her police statement .

Once again the trial judge ( not the same judge who had sat in the first trial ) told the jury , in relation to ORG 's testimony , to bear in mind that it could be difficult to know what reliance to place upon the evidence of a child .

The jury retired at TIME on DATE . Shortly thereafter they sent a note to the judge asking to see PERSON 's statement . In accordance with the rules of evidence the judge was obliged to refuse this request . The jury were unable to reach a verdict that day and the court adjourned TIME . At TIME on DATE the jury convicted the applicant of murder by a majority of CARDINAL .

The applicant again appealed , claiming that his conviction was unsafe in the light of the information given to the police by ORG in DATE . On DATE a differently constituted ORG rejected the appeal , holding as follows :

“ In our judgment there is no basis on which this conviction can properly be regarded as unsafe . In his attractive and skilful submissions , [ the applicant 's counsel ] accepted , as we have said , that he could not point to any irregularity or to anything which could be said to have gone wrong in the second trial . The summing - up , he accepts , was meticulous . What was missing from the second trial , as from the first , was any evidence helpful to the defence from [ ORG ] . The absence of any such evidence was , as at the first trial , due to her complete inability to recall any potentially material events and , at the second trial , she was not called at all .

This being so , we are unable to accept that this ORG should entertain doubt about the safety of the conviction on the basis of material , namely [ ORG 's ] interview by the police , which , being hearsay , was not and could not be before the jury and which is not and can not be evidence before this ORG .

The retrial ordered by ORG following the irregularity in the first trial was in order to enable [ ORG ] to give evidence after she had refreshed her memory from the contents of the interview , the assumption being that she might , in such circumstances , be able to give evidence helpful to the defence . As it turned out , this proved impossible at the second trial because she had no relevant recollection at all .

It was certainly not contemplated at the time of the quashing of the first conviction that the terms of [ ORG 's ] interview with the police could be placed before the jury , for that would have been to drive a coach and horses through the rules in relation to hearsay ” .

The court also commented that there was a “ strong circumstantial case ” against the applicant and that it entertained no doubt about the safety of his conviction .

On DATE ORG ( “ CCRC ” ) referred the applicant 's conviction back to ORG , because it considered , on the basis of newly discovered evidence , that there was a real possibility that the appeal court would find the conviction unsafe . The new evidence mentioned in the referral concerned the failure by the police to investigate or disclose telephone calls made on DATE and DATE informing them that CARDINAL boys out playing on DATE TIME had seen a human corpse on a junk yard QUANTITY from the street where the applicant and PERSON lived .

In the Grounds of Appeal prepared on his behalf the applicant also argued that his conviction was unsafe , inter alia , because the jury did not hear the evidence of ORG in support of ORG .

ORG , again differently constituted , gave judgment for the third time on DATE . Although the issue of ORG 's evidence had not been included in the ORG reference , the court held that , under section PERSON ) of LAW DATE , it had jurisdiction to consider any ground of appeal relating to the conviction . However , it found that this ground raised no new argument that had not already been considered at the second appeal , and it held that , in the absence of new argument or evidence , the proper exercise of its power to depart from its previous reasoning or conclusions should be confined to “ exceptional circumstances ” , for example , an intervening change in case - law or tension between the national statutory criteria for safety of a conviction and standards of fairness imposed by ORG . The court did not find that exceptional circumstances applied , and it therefore rejected this ground of appeal .

In addition , the court held that the evidence relating to the sighting by the CARDINAL boys of a dead body lacked consistency and reliability , and , in view of the strong circumstantial case against Mr PERSON , did not afford a reason for regarding the conviction as unsafe .

It is a well established principle of LANGUAGE law that there is no property in a witness . In other words , the parties to civil or criminal proceedings may seek to obtain statements from any person who may be in a position to give material evidence in those proceedings .

A witness may refer to a document in order to refresh his memory provided that the document ( a ) was made or verified by him contemporaneously with the events in question ; ( b ) is , in certain cases , the original ; and ( c ) can be produced for inspection if called for by the court or the opposing party . Where a witness refers to a memory - refreshing document the evidence remains that which is given orally by the witness .

The rule against hearsay evidence has been formulated as follows :

“ Any assertion other than one made by a person giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted ” : ORG and Tapper on Evidence , CARDINALth ed . , p. CARDINAL , approved by ORG in NORP v. ORG , CARDINAL Cr . App . R CARDINAL , CARDINAL .

The rule covers both assertions made by persons who do not give oral evidence and previous assertions by those who do . It covers oral statements and those contained in documents . If evidence falls within the hearsay rule , it will be inadmissible unless it falls within a statutory or common law exception .

Historically , the reason why hearsay evidence is inadmissible is because :

“ It is not the best evidence and it is not delivered on oath . The truthfulness and accuracy of the person whose words are spoken to by another witness can not be tested by cross - examination , and the light which his demeanour would throw on his testimony is lost ” : Teper v R [ DATE ] AC CARDINAL , CARDINAL , per Lord Normands .

On DATE the Criminal Justice Act DATE received ORG . Part CARDINAL of LAW of the DATE Act makes changes to the rules of evidence relating to the admissibility of hearsay evidence in criminal proceedings , with a view to simplifying the law and providing greater certainty as to the circumstances when hearsay evidence will be admitted . The relevant sections came into force on DATE . LAW provides ( as relevant ) :

“ ( CARDINAL ) This section applies where a person ( the witness ) is called to give evidence in criminal proceedings .

( CARDINAL ) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible , if –

( a ) any of the following CARDINAL conditions is satisfied , and

( b ) DATE while giving evidence the witness indicates that to the best of his belief he made the statement , and that to the best of his belief it states the truth .

( CARDINAL ) The first condition is that the statement identifies or describes a person , object or place .

( CARDINAL ) The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them , and can not reasonably be expected to remember them , well enough to give oral evidence of them in the proceedings .

( CARDINAL ) The third condition is that –

( a ) the witness claims to be a person against whom an offence has been committed ,

( b ) the offence is one to which the proceedings relate ,

( c ) the statement consists of a complaint made by the witness ( whether to a person in authority or not ) about conduct which would , if proved , constitute the offence or part of the offence ,

( d ) the complaint was made as soon as could reasonably be expected after the alleged conduct ,

( e ) the complaint was not made as a result of a threat or a promise , and

( f ) before the statement is adduced the witness gives oral evidence in connection with its subject matter .

( CARDINAL) For the purposes of subsection ( CARDINAL ) the fact that the complaint was elicited ( for example , by a leading question ) is irrelevant unless a threat or a promise was involved . ”

In addition , the court will have a residual discretion to admit a hearsay statement into evidence if satisfied that it is in the interests of justice for it to be admissible ( section LANGUAGE of the CARDINAL Act ) .


Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG Mr PERSON , a NORP journalist , lives at GPE , in GPE .

ORG On DATE the applicant and CARDINAL of the associations he runs , ORG , lodged a complaint alleging defamation against ORG , who had written a letter published in the letters column of the newspaper L’Est vaudois under the headline " PERSON is fooling you " . The letter contained the following passages :

" Like all your readers , no doubt , I recently found in my letter - box another of the begging letters sent out by unscrupulous people when they want to cadge money .

Everyone is getting really sick of it and I think PERSON would do better to go and knock down the factory chimneys which crowd the skyline of GPE and protect his beloved captive seals in the zoo than to pester us with his initiatives , which he lives on at our expense - in case you did n’t know .

If PERSON had the courage to show us his tax returns , you would be amazed . But the list of municipal taxpayers is not published and it is easy to hide behind that sort of censorship and live by devious means , sponging off decent people who still believe that these drop - outs have their uses and in so doing demonstrate their distrust of the whole country ’s democratically - and how democratically ! - elected authorities .

DATE everyone have the courage to tell ORG ( there ’s a fine name to fleece you with ! ) that we have had enough of playing into the hands of people who sponge off us and whose behaviour borders on the criminal .

ORG Interviewed by the investigating judge ( juge informateur ) of the NORP - Lavaux district , ORG acknowledged the virulence of these accusations and attributed it to a nervous breakdown he had suffered at the time . Mr PERSON refused all conciliation . In order to establish the truth of his allegations , ORG then requested Mr PERSON to produce a number of documents relating to his and his associations’ financial position .

ORG On DATE the investigating judge ordered disclosure of ORG and ORG articles and their accounts for DATE . On DATE , having still not received them , he ordered their sequestration , but on DATE he had to renew the order , as the applicant had not complied .

In DATE Mr PERSON forwarded ORG accounts in a sealed envelope but not those of the ORG . CARDINAL subsequent sequestration orders were not executed .

ORG The applicant was dissatisfied with the way in which the investigating judge was proceeding and on CARDINAL DATE he lodged a criminal complaint alleging misuse of official authority and coercion , but the investigating judge of the GPE of GPE refused to take any action , whereupon Mr PERSON challenged ORG .

R.M. was charged with defamation ( LAW ) and on DATE was committed for trial at the LOC district police court . He appealed against the order committing him for trial , but ORG ( tribunal d’accusation ) dismissed the appeal on CARDINAL DATE .

ORG On DATE at a press conference in GPE the applicant informed the public that defamation proceedings had been taken against ORG , that orders had been made for the production and then for the sequestration of the associations’ accounts and that these had been handed over under seal . He also stated that he had lodged a challenge and a complaint against the investigating judge . Mr PERSON had already divulged the first CARDINAL items of information at a press conference in GPE on DATE , during which he denounced " the plot hatched against him by the GPE authorities in order to intimidate him " .

ORG On DATE the DATE newspapers ORG , DATE and ORG reported what the applicant had said .

ORG Under LAW of LAW , the President of ORG of ORG commenced of his own motion a summary investigation for breach of the confidentiality of a judicial investigation . In a letter of CARDINAL DATE he ordered PERSON to provide information within DATE about what exactly he said on DATE .

The applicant replied on CARDINAL DATE . He denied having given any " information about the investigation proceedings " and relied on ORG CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the Convention .

ORG On DATE the President of ORG imposed a fine of MONEY on him , together with a probationary period of a year for the purposes of deletion of the fine from the cantonal register . He based his decision on the following grounds :

" II . CARDINAL . Mr PERSON relied on LAW ) and impugned the procedure provided for in LAW ORG ) , which is the same as the one provided for in LAW , CARDINAL § CARDINAL and CARDINAL ORG . This complaint is irrelevant , as LAW ORG does not apply to the summary investigation proceedings provided for in respect of these breaches of procedure under cantonal law , reserved by LAW , second sub - paragraph , of LAW ( ORG ) , because it is not a question of a ‘ criminal ORG .

Mr PERSON also submitted that he did not disclose any confidential matters on CARDINAL DATE , since the matters in question had already become public knowledge as a result of his press conference of CARDINAL DATE .

Since no judicial investigation was commenced following the press conference of CARDINAL DATE and as Mr PERSON did not have any occasion to avail himself of his right to a hearing , there is no need to deal with it in the present proceedings . Furthermore , criminal proceedings will shortly be time - barred ( s. CARDINAL of ORG , s. CARDINAL of LAW , s. QUANTITY ) .

It is true that as a result of the press conference of CARDINAL DATE the matters dealt with at the press conference of CARDINAL DATE were public knowledge , but that is of no importance as breaching the confidentiality of an investigation means ‘ disclosing’ a matter which ought to be kept confidential . It is therefore of little importance that the matter which was to be kept confidential was known to a limited or indefinite number of people because confidentiality had already been breached by a third party or by the same person .

The actus reus of the offence punishable under LAW is therefore made out . This offence is punishable even if it has been committed inadvertently ( s. CARDINAL of GPE , s. CARDINAL of LAW ) . In the instant case it is plain that Mr PERSON acted deliberately .

By disclosing that he had challenged the investigating judge , Mr PERSON revealed that there was an investigation , but it may be doubted whether that was ‘ information about the investigation’ .

Disclosing that a criminal complaint has been lodged - which may amount to a different offence - is not caught by LAW , more particularly where it has been decided to take no action on the complaint .

Mr PERSON himself admits that the breach of the confidentiality of the investigation was intentional . His submission based on a kind of necessity is devoid of merit since it was open to him to appeal to ORG against the orders for the sequestration of ORG and ORG accounts , as he in fact did DATE .

ORG On DATE an appeal that Mr PERSON brought against this decision was unanimously dismissed by ORG sitting in private ( under LAW and CARDINAL of LAW ) , on the following grounds :

In the instant case the disclosure that criminal complaints had been lodged - on DATE against [ ORG ] and on DATE against the investigating judge - is not information about an investigation except in so far as it implies - and discloses - that an investigation has been commenced ... , but it may indeed amount to an offence ( defamation , calumny , on the part of the complainant ) . LAW ORG ) is therefore not applicable to the disclosure that the first complaint had been lodged , because this was punishable as defamation , or to the disclosure that the second complaint had been lodged , because no investigation was commenced . The decision is therefore well - founded on that point .

The disclosure of the challenge is not information about an investigation . The challenge is not the purpose of the investigation , and the disclosure that such a challenge has been made says nothing about the purpose of the investigation , its content or its results . It remains true , on the other hand , that the existence of such an investigation is disclosed ; but such a disclosure is not punishable under LAW ORG , since it was punishable as defamation .

The disclosure of the orders for production and sequestration of the accounts in the file does amount to information about an investigation .

It remains to be considered whether one can talk of disclosure , given that the matters had already been made public at an earlier press conference .

LAW ORG , which is designed also - and even primarily - to protect the public interest in ensuring that investigations take place in the best possible conditions , prohibits parties from communicating information from the file ; it is therefore sufficient that the matters should be confidential in nature , without necessarily still being confidential ; communication of matters of a confidential nature to someone who knows them already as a result of an earlier indiscretion is therefore a punishable offence . Furthermore , the applicant can not rely on common knowledge when that knowledge is due to an earlier disclosure that he himself has made .

The appellant was therefore rightly convicted .

Finally , ORG set aside of its own motion the entry of the fine in the cantonal register . It noted that under GPE law and notwithstanding that they were convertible DATE of imprisonment ( arrêts ) , the fines for " procedural offences " , such as breaching the confidentiality of a judicial investigation , were disciplinary in nature , since they were designed to ensure that the investigation proceeded normally . On this point cantonal law differed from federal law .

ORG Mr PERSON lodged a public - law appeal with ORG . He relied on ORG CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the LAW . In his view , LAW ) applied because of the criminal nature of the fine , which under LAW DATE was convertible into a custodial sentence .

ORG On DATE ORG dismissed the appeal . It noted in particular :

The applicant ... maintained that LAW ) violates in the abstract , and in the alternative in the specific case , freedom of expression as secured in federal constitutional law and in LAW ) of LAW ( ECHR ) . In so doing , he overlooked that it may be legitimate in the public interest to impose certain restrictions on the exercise of that fundamental right ... LAW ( article LAW ) in fine ORG , moreover , provides expressly that such restrictions are permissible where they are necessary in a NORP society , in particular for maintaining the authority and impartiality of the judiciary . The rule enacted in LAW ORG clearly conforms to these principles . A weighing of the competing interests at stake leads to the same conclusions . While it may indeed be readily appreciated that the applicant had grounds for rebelling against the sometimes unorthodox course taken by the proceedings against him , it must not be forgotten that the usual remedies were open to him ; and , indeed , on a number of occasions he successfully availed himself of them . His interest in expressing his views on this matter in public and the public ’s interest in being informed by this means can not outweigh the interest in ensuring that the judicial system can function as smoothly and impartially as possible . The prohibition against communicating information about an investigation until its completion and the penalties attaching to the offence are undoubtedly consistent with the proportionality principle . Consideration of whether the impugned interference was founded on sufficient reasons which rendered it necessary in a NORP society , having regard to all the public - interest aspects of the case ( ORG , DATE ORG case , Series A no . CARDINAL , paragraphs CARDINAL ) leads inevitably to the conclusion - particularly if the interests at stake in the DATE ORG case previously cited and in the applicant ’s case are compared - that there was no violation of freedom of expression .

In the instant case the appellant was liable to a fine not exceeding MONEY ( LAW ) and was fined MONEY . Under GPE law , such a penalty typically comes within the sphere of rules of conduct to be observed during proceedings . That is not decisive , however , according to the NORP institutions .

Such rules are generally directed primarily at barristers , and in that instance their disciplinary nature is not in doubt ; the parties to criminal proceedings , however , may also be subject to certain disciplinary rules . Admittedly , it has to be recognised that the measure taken against the appellant could have been based on a combination of LAW , which lays down that judicial investigations shall be confidential , and LAW ) , which provides that anyone who makes public any proceedings in a judicial investigation or deliberations by an authority which are secret by law shall be punishable with imprisonment or a fine . In that event the application of LAW would have justified an application of LAW ( article DATE ) ORG . This was not the case , however , and it was on the basis of a cantonal rule of procedure that the appellant suffered a penalty whose disciplinary or criminal nature can be determined only by assessing the degree of its severity .

The appellant showed , aptly enough , that such a fine was convertible into CARDINAL days’ imprisonment under LAW on the recovery of fines and their conversion into imprisonment . That procedure indeed leaves the authorities only a very limited discretion and at all events does not enable them to comply retrospectively with the requirements of LAW . The appellant overlooks , however , that LAW , second sub - paragraph , of LAW ( SCC ) enables the judge to rule out conversion where the person convicted has proved that , through no fault of his own , he is unable to pay the fine . In view of the foregoing , the possibility of a custodial sentence could not make the penalty imposed in the instant case a criminal one .

Ultimately , while the fine imposed in the instant case was not a negligible one , it nonetheless came into the category of penalties which by their nature , duration or manner of execution are deemed not to be appreciably detrimental . The possibility of conversion into a custodial sentence makes no difference , since conversion is possible only in the event of the appellant ’s refusing to pay the fine out of sheer unwillingness . The safeguards provided for in LAW ( article DATE ) ORG were therefore not applicable in the instant case . "

The applicant paid the fine in DATE .

ORG The confidentiality of judicial investigations is governed by LAW , which provide :

" All judicial investigations shall remain confidential until they are finally completed .

Judges , other members of the national legal service and civil servants shall not communicate any documents or information about an investigation except to experts , other witnesses or an authority where such communication assists the investigation or is justified on administrative or judicial grounds . "

" The parties , their counsel , employees of their counsel and experts and witnesses shall be bound to maintain the confidentiality of an investigation , on pain of a fine of MONEY , unless the breach is punishable under other provisions .

The punishment provided for in the foregoing paragraph shall be ordered by the President of ORG , of his own motion or acting on an information .

He shall give his ruling after a summary investigation . "

In DATE the applicant was the sponsor of a constitutional initiative entitled " For a system of criminal justice with a human face " , CARDINAL of whose aims was to secure the repeal of LAW . This was in line with the approach adopted by those who had drafted the DATE LAW , which does not attach any penalty to the obligation to maintain the confidentiality of an investigation , an obligation from which it even completely exempts witnesses , complainants , accused persons and their lawyers . In a referendum on DATE the people of the GPE of GPE rejected the PERSON initiative by a clear majority .

ORG Article CARDINAL § CARDINAL of LAW - which was not applied in the instant case ( see paragraph CARDINAL above ) - provides :

" Anyone who , without being entitled to do so , makes public all or part of the proceedings of an investigation or of the deliberations of any authority which are confidential by law or in virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine . "

ORG The cantonal LAW DATE , which has been supplemented and amended several times since , provides , inter alia :

" If the person convicted has neither paid nor redeemed the fine and if it appears that recovery proceedings would be fruitless , the ORG shall convert the fine into a term of imprisonment .

The ORG may , however , decide against conversion at any time if the person convicted proves that , through no fault of his own , he is unable to pay the fine . "

" The conversion rate shall be DATE imprisonment for MONEY of fine ; fractions of MONEY shall be left out of account ; the length of imprisonment shall not exceed DATE .

" Within TIME of receiving them , the GPE shall send to the Prefect of the district in which the court that heard the case is situated copies of any judgments and decisions entailing imposition of a fine which have been communicated to it .

It shall order the ORG to enforce the judgment or decision . "

" If the person convicted has neither paid nor redeemed the fine and if it appears that recovery proceedings would be fruitless , the ORG shall inform the ORG accordingly with a view to converting the fine into a term of imprisonment , unless such conversion was excluded at the outset in the judgment or decision concerned . "

" The presiding judge of the court shall decide whether to convert the fine into a term of imprisonment pursuant to LAW and shall proceed in accordance with LAW of LAW .

" Articles DATE and CARDINAL shall apply to fines imposed for breaches of provisions of criminal or civil procedure .

In the case of LAW , the GPE shall report the matter to the appropriate judicial officer , who shall be able to convert the fine into a term of imprisonment , wholly or in part ; he shall inform the ORG of his decision .

Articles CARDINAL and CARDINAL shall apply to the conversion , save that the judge with jurisdiction to determine the matter shall be :

( a ) the President of ORG in respect of fines imposed by him or by the court as such ;

( b ) the presidents of the various sections or divisions of ORG in respect of fines imposed by them or by the section or division ;

ORG When depositing the instrument of ratification of the Convention , ORG made the following reservation :

" The rule contained in LAW , paragraph CARDINAL ( article CARDINAL - CARDINAL ) , of the LAW that hearings shall be in public shall not apply to proceedings relating to the determination ... of any criminal charge which , in accordance with cantonal legislation , are heard before an administrative authority .

The rule that judgment must be pronounced publicly shall not affect the operation of cantonal legislation on civil or criminal procedure providing that judgment shall not be delivered in public but notified to the parties in writing . "

ORG The NORP courts have had occasion to give their views on the concept of an " administrative authority " . In its judgment of DATE in the PERSON case , for instance , ORG stated :

" Moreover , the expression ‘ administrative authority’ ( autorité administrative ) is not to be found in the text of LAW ( ORG ) but appears in GPE ’s reservation in respect of the principle laid down in DATE ( article CARDINAL ) of the LAW that hearings must be public and judgments pronounced publicly . It is therefore not a LAW concept which should be construed according to the principle of reasonable expectation , that is to say in the meaning which the other signatory GPE might and should in good faith give it , or directly under LAW and CARDINAL of LAW of CARDINAL DATE , which GPE has not yet ratified . A reservation made when ratifying a treaty is a unilateral declaration which must in general be interpreted by reference to the domestic law of the ORG which has adopted it , like a provision in a statute or regulation .

In the case of a reservation , an interpretation in accordance with the will of the declaring ORG makes it possible to take into account the real purpose of the reservation , whose justification lies precisely in the special features of national law ...

That being so , regard should be had to the meaning which ORG and ORG intended giving to the expression ‘ administrative authority’ . While ORG accepted the reservation without discussion or comment , ORG gave the following particulars in its DATE Communication ( ORG [ ORG ] DATE II p. CARDINAL/CARDINAL ) .

‘ ... In GPE , as was pointed out above , the administrative authorities may have to determine private - law disputes and impose penalties in the way that a criminal court would . Administrative proceedings , however , are not normally public . The same is true of proceedings in the administrative courts , although they are adversarial . It is , moreover , doubtful whether the principle that proceedings must be public is generally applicable to administrative criminal proceedings.’

In its communication of CARDINAL DATE ( PERSON I , p. CARDINAL ) , on the other hand , ORG merely stated that proceedings before administrative authorities were not public .

It is therefore possible to confirm the precedent of NORP and Others of CARDINAL DATE , referred to above . In the light of the CARDINAL Communication it is apparent that GPE meant to exclude application of the principle that hearings and judgments must be public not only before administrative authorities but also in the administrative courts , notwithstanding that proceedings there are adversarial . It would , moreover , be consistent with the principle of good faith to accept that the reservation applies to such - and - such an authority not because of the way the authority is organised but rather because of the functions it discharges , in the instant case administrative functions .

( cc ) The respondent authority was right in considering that it could apply the reservation made in respect of LAW and in accepting that in GPE ‘ disciplinary regulations come within the domain of administrative law and the authorities which apply them exercise an administrative jurisdiction’ . "