CASE OF MOLDOVAN AND OTHERS  v. ROMANIA (No. 2)

Violation of Art. 8;Violation of Art. 3;No violation of Art. 6-1 (access to court);Violation of Art. 6-1 (length of proceedings);Violation of Art. 14+6;Violation of Art. 14+8;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicants are NORP nationals of GPE origin . They used to live in the village of GPE , in the NORP district , and are agricultural workers . After the events described below , some applicants returned to live in GPE , while others , who are homeless , live in various parts of the country . Mr PERSON is currently living in GPE and PERSON is living in GPE .

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

On TIME DATE broke out in a bar in the centre of the village of GPE ( NORP district ) . PERSON and PERSON , CARDINAL GPE brothers , along with another Rom , PERSON , began to argue with a non - Rom , PERSON . The verbal confrontation developed into a physical one which ended with the death of PERSON , who had come to the aid of his father . The CARDINAL GPE then fled the scene and sought refuge in a neighbour 's house .

Soon afterwards , news of the incident spread and a large number of villagers learned of PERSON death . Enraged , they gathered together to find the GPE . The angry mob arrived at the house where the CARDINAL were hiding and demanded that they come out . Among the crowd were members of the local police force in GPE , including the Chief of Police PERSON , and PERSON , who had heard of the incident . When the brothers refused to come out , the crowd set fire to the house . As the fire engulfed the house , the brothers tried to flee but were caught by the mob who beat and kicked them with vineyard stakes and clubs . The CARDINAL brothers died TIME . PERSON remained in the house , where he died in the fire . It appears that the police officers present did nothing to stop these attacks . The applicants alleged that , on the contrary , the police also called for and allowed the destruction of all GPE property in GPE .

Later that evening the villagers decided to vent their anger on all the GPE living in the village and proceeded to burn the GPE homes and property in GPE , including stables , cars and goods . The riots continued until DATE . In all , CARDINAL GPE houses belonging to the applicants were destroyed .

The individual applicants made the following allegations :

The applicant alleged that it was on his property that the CARDINAL GPE were killed on DATE . His home and other property were set on fire and destroyed .

NORP The applicant alleged that her house and various personal possessions were destroyed by the fire .

The applicant alleged that , on TIME DATE , an angry mob had appeared at her door , entered the house and destroyed all her belongings . The mob had then proceeded to set fire to her home and she had watched as the flames destroyed it . The next day , when she had returned home with her husband and daughter , she had been met by an enraged mob of villagers who had prevented her from entering the house . Police officers PERSON , PERSON and ORG had taken hold of her , sprayed pepper in her face and then proceeded to beat her badly . Costică Moldovan had witnessed these events . Colonel ORG had also fired at Costică Moldovan and his family as they tried to return home to fetch their pigs . The applicant declared that her house had been damaged and that she had lost valuables and other possessions .

The applicant alleged that on TIME DATE she had learned from her DATE daughter what was happening in GPE . Her daughter had told her that a neighbour had said that the non - GPE villagers wanted to kill all the NORP in retaliation for the death of PERSON .

Fearing for the safety of her children , the applicant had taken them to her mother 's house . TIME , when she returned , she witnessed several people gathered in front of the courtyard throwing stones and pieces of wood and eventually setting her house on fire . As she ran back to her mother 's house , she saw CARDINAL people armed with clubs , urging the mob to set fire to it . Within TIME , her mother 's home was in flames .

The following day the applicant had attempted to return to what was left of her home to assess the damage . As she approached her property , she had been threatened verbally and physically by an angry mob of non - Roma villagers and police officers . CARDINAL villager had threatened her with a shovel and others had violently thrown rocks at her . The villagers , including the police officers present , had prevented her from entering what remained of her home . Fearing for her safety , the applicant and her children had left GPE .

DATE she had once again attempted to return to her home along with other GPE villagers . This time the applicant had found the road to her house entirely blocked by an even larger crowd of villagers , all of whom had been carrying clubs . Police officers had also been among the crowd . Among the enraged mob of villagers , the applicant had recognised Officer PERSON , who was holding a truncheon . A police car had even pursued the applicant and other GPE trying to return to their homes , firing shots at them and shouting at them to leave the village . The applicant alleged that her house had been destroyed and that she had lost valuable goods .

Petru ( Gruia ) Lăcătuş alleged that his house had been destroyed , as had the CARDINAL cars he had had in the courtyard .

The applicant stated that , on TIME DATE , her husband , PERSON , and her CARDINAL brothers , PERSON and PERSON , had been brutally murdered in the PERSON pogrom . She alleged that CARDINAL of the CARDINAL GPE houses set on fire TIME had belonged to her late mother , PERSON .

The applicant alleged that his house had been destroyed and that he had lost valuable goods . His wife had been pregnant at the time of the incident and , because she had been beaten and had experienced severe fear , the baby had been born with brain damage .

In the aftermath of the incident the GPE residents of GPE lodged a criminal complaint with ORG . The complainants identified a number of individuals responsible for what had occurred on DATE . Among those identified were several police officers : Chief of Police PERSON , his assistant PERSON , Colonel PERSON , a certain FAC , and Lieutenant Colonel PERSON , the GPE Chief of Police .

Thereafter , an investigation was initiated which identified the offenders who had actively participated in the killing of the PERSON brothers and PERSON , and the destruction of GPE houses and other property .

On DATE CARDINAL civilians PERSON , GPE and GPE - were remanded in custody . They were charged with extremely serious murder ( under Articles CARDINAL and CARDINAL of LAW ) and arson ( under LAW ) . However , TIME they were released and all warrants for their arrest were set aside by order of ORG .

By an order of DATE , on the basis of ample evidence that suggested police involvement in the incident , the case was sent to the NORP - Mureş Military ORG , which had jurisdiction to investigate crimes committed by police officers . According to the order of ORG of the Târgu - ORG , Lieutenant Colonel PERSON had organised a small meeting with non - GPE villagers after the incident , advising them “ not to tell anyone what the police had done if they wanted the incident to be forgotten and not have any consequences for themselves . ”

By a resolution dated DATE , the Târgu - ORG ordered an extension of the investigation and the initiation of a criminal investigation in respect of Chief of Police Moga and PERSON . According to the military prosecutor , the evidence produced so far indicated that these persons had incited the villagers to commit acts of violence against the PERSON brothers and had even directly participated in setting fire to certain houses . On the basis of oral evidence , the prosecutor found that officers PERSON and PERSON had participated in the events and “ repeatedly ” incited the villagers to take action against the men barricaded in the house , telling them to “ set them on fire , because we can not do anything to them ” . Moreover , he found that Lieutenant Colonel PERSON had required the inhabitants of ORG “ not to tell anyone anything about the actions of the police officers , and everything will be forgotten and you shall bear no consequences . ”

On DATE , having regard to the involvement of Colonel Palade , the Târgu - ORG declined jurisdiction to investigate the case and referred it to ORG .

On CARDINAL DATE Colonel Magistrate PERSON , the military prosecutor at ORG , decided not to open a criminal investigation , stating that the evidence produced in the case had not confirmed the participation of Chief of Police Moga , Lieutenant Colonel PERSON or Sergeant Şuşcă in the crimes committed during the riots . As to the statements made by various witnesses confirming the involvement of these police officers , the prosecutor found that CARDINAL of them had been made by the sister of CARDINAL of the victims and , given the fact that the officers had punished the victims several times , her evidence was obviously tendentious . The prosecutor found the other oral evidence confused . He concluded that the police officers could not be accused of having committed crimes , “ even though one should accept that during the events they had used words such as ' do what you want , I have a family to take care of ' or ' they will come out immediately if you set the house on fire ' . Moreover , we can not consider the lack of initiative and the inability of the CARDINAL policemen to influence the behaviour of the furious villagers as a form of participation – either in the form of instigation or as possible moral complicity . ”

In DATE , the Head of ORG upheld the decision , refusing to open an investigation , and all charges against the police officers were dropped . An appeal lodged by the injured parties was dismissed by ORG .

On DATE , ORG of the Târgu - ORG issued an indictment charging CARDINAL civilians suspected of having committed crimes on DATE .

Certain testimonies confirmed that the police had promised the villagers involved in the riot that they would help to cover up the entire incident . Several defendants testified that CARDINAL police cars driving to the scene of the incident that night had ordered , over their loudspeakers , that the house where the CARDINAL GPE victims were hiding be set on fire .

On DATE a criminal trial , in conjunction with a civil case for damages , began against the civilian defendants in the Târgu - ORG . During these proceedings , the applicants learned of the overwhelming extent of the evidence against the police . Various witnesses testified that police officers had not only been present that TIME but had actually instigated the incident and then stood idly by as the CARDINAL PERSON brothers and PERSON were killed and GPE houses destroyed . In this connection , witnesses cited the names of Chief of Police Moga , Colonel PERSON and PERSON .

In the light of numerous testimonies implicating additional individuals – both civilians and police officers – the applicants ' lawyer asked the court to extend the indictment of CARDINAL DATE . As a result , the civilian prosecutor sent the relevant military prosecutor the information on which to base proceedings before a military court against the officers concerned .

The applicants PERSON and PERSON asked the court in writing to extend the criminal charges . According to them , the prosecutor refused to do so .

On DATE the Târgu - ORG severed the civil and the criminal case because the criminal investigation had already lasted DATE and the determination of the civil aspect would take even longer .

On DATE the Târgu - ORG delivered its judgment in the criminal case . It noted the following :

“ The village of GPE , belonging to the commune of PERSON , is situated in the south - west LOC on the main road between NORP - Mureş and GPE and has a population of CARDINAL inhabitants , of which CARDINAL are NORP , CARDINAL NORP and CARDINAL Roma .

The GPE community represents PERCENT of the total population and the marginal lifestyle of some categories of GPE , especially the ones who settled in the village after DATE , has often generated serious conflicts with the majority of the population .

Due to their lifestyle and their rejection of the moral values accepted by the rest of the population , the GPE community has marginalised itself , shown aggressive behaviour and deliberately denied and violated the legal norms acknowledged by society .

Most of the GPE have no occupation and earn their living by doing odd jobs , stealing and engaging in all kinds of illicit activities . As the old form of common property that gave them equal rights with the other members of the community was terminated , the GPE population were allocated plots of land . However , they did not work the land and continued to steal , to commit acts of violence and to carry out attacks , mainly against private property , which has generated even more rejection than before .

ORG have started arguments with the young people in the village , attacked them or stolen their goods and money .

Moreover , they ostentatiously use insults , profanities and vulgar words in public places . ...

The records of the criminal - investigation authorities and of the courts of law in GPE disclose that CARDINAL criminal cases were registered DATE , having as their object acts of violence ranging from simple blows to murder .

In fact , the real number of the crimes committed by the GPE was much higher , but many of them were not judged in court because the injured parties did not file complaints , withdrew them or made peace with the perpetrators , for fear of vindictive threats by the GPE .

The community feels that most of the disputes were solved in an unfair , unsatisfactory manner in favour of GPE and this has caused an increase in the number of personal or collective vindictive actions . ”

The court went on to establish that , on TIME DATE , the PERSON brothers and PERSON had been waiting at the village bus station and had quarrelled with PERSON about the attempts made by the CARDINAL GPE to attract the attention of a girl . Answering the GPE 's mockery and insults addressed to him and to his cow , PERSON started to threaten the GPE with his whip and even hit PERSON . A fight followed , during which PERSON , who had intervened to defend his father , was stabbed in the chest by PERSON . The GPE ran away , while PERSON was brought to the hospital , where he died TIME . During that time the GPE took refuge in the house of the applicants Lucreţia and PERSON , while villagers gathered around the yard of the house . QUANTITY police officers , Chief of Police Moga and PERSON , arrived at the scene of TIME , having been called by some villagers . The policemen were allegedly under the influence of alcohol . Before and after the arrival of the police , the villagers threw stones , pieces of wood and clods of earth at the house and shouted things like “ Set fire to the house ! Let them burn like rats ! ” A villager started to throw flammable materials at the house and was soon followed by others , including children . When the fire spread , CARDINAL of the GPE men came out of the house . PERSON was immediately immobilised by PERSON , while PERSON managed to run away . PERSON was stopped from coming out of the house by a villager and was hit by another 's fist and a shovel , which finally led to his dying in the fire . His carbonized body was found the following day in the burned - down house . The autopsy report established that he had died from respiratory failure , PERCENT carbonized .

To escape the fury of the villagers , Chief of Police PERSON took PERSON to the cemetery , after trying in vain to enter several courtyards in the village , which were all locked . The court noted that “ the policeman [ Moga ] , realising his presence was useless , abandoned his prisoner to the infuriated crowd ” . According to the autopsy report , PERSON died a violent death from shock and internal bleeding , with multiple traumatic injuries affecting his liver , a hemiperitoneum and peripheral haematoma on PERCENT of his body .

PERSON was caught by the crowd near the cultural centre , where he was beaten to death . The autopsy report found that he had died as a result of direct blows from blunt objects causing CARDINAL lesions on his body ( multiple fractures of his arms , ribs and thorax , and multiple traumatic injuries and contusions ) .

During the trial , all the civilian defendants stated that , in addition to officers ORG and GPE , CARDINAL other policemen had arrived from the city of Luduş and encouraged the crowd to set fire to the houses . CARDINAL police cars had also arrived at GPE , from which it was announced over loudspeakers that only the detached houses of the NORP should be set on fire in order not to cause accidents . At a meeting held DATE in the village square , Lieutenant Colonel PERSON stated that the case would be covered up and a scapegoat found .

All the accused stated that they had been arrested for the first time in DATE , but only for TIME , after which they had been released in order to allow them to harvest the crops , a reason they found strange , since most of them were not farmers . They also stated that very few questions were put to them and that the prosecutor even tried to put pressure on them . They were not questioned further until DATE , when they were arrested again .

The court further established that the villagers had declared that , on TIME in question , the village was to be “ purged of the NORP ” , an intention clearly put into action , and found that ,

“ The majority of the population of GPE was directly or indirectly supported by the representatives of the authorities who came to the village and not only did nothing to stop the houses being set on fire , but also surrounded the area with groups of gendarmes . ”

The court found that the action was not premeditated , but that all those present had acted jointly , in different ways ( assault , murder , fire , destruction , etc . ) , to reach their declared goal of eliminating the GPE community from the village .

The court held that the preliminary investigation had been inadequate :

“ We deem that the inadequate manner in which the acts and ... procedures related to the investigation were performed reflect a negative attitude ... The same can be noted regarding the delayed submission of the autopsy reports on the victims ( PERSON , PERSON and PERSON died on DATE and the forensic reports were drafted in DATE ; mention should be made of the fact that none of the CARDINAL forensic reports gave specific dates , but only an indication of DATE when they were drafted ) ... [ Moreover , ] the electoral meeting organised at the village stadium , attended by politicians , representatives of the police and the law , ... asked the population not to tell the truth and to delay the resolution of the case . ”

The court also noted that the prosecution had not agreed to an extension of the criminal investigation or to the initiation of criminal proceedings against “ other persons ” . Therefore , the court could only rule in respect of those perpetrators prosecuted in accordance with LAW .

The court convicted CARDINAL civilians of extremely serious murder under Articles CARDINAL and CARDINAL of LAW and CARDINAL civilians , including the former CARDINAL , of destroying property , outraging public decency and disturbing public order . Among those convicted of destruction of property and disturbance was GPE , the Deputy Mayor of GPE . The court pronounced prison sentences ranging from DATE , and noted that those given terms of DATE had CARDINAL the sentence pardoned under PERSON no . ORG . The court justified the sentences as follows :

“ Taking into consideration the characteristics of this particular case , the punishments applied to the defendants might seem too mild compared to the gravity of the crimes . We consider that , as long as persons who contributed to a greater extent to the criminal actions were not prosecuted and were not even the subject of an investigation , although there was enough evidence to prove their guilt , the defendants who were prosecuted should not be held responsible for all the crimes committed , but only for that part for which they are liable . ”

On DATE , ORG appealed against this judgment , asking , inter alia , for heavier sentences . On DATE , the Târgu - ORG of Appeal convicted a sixth civilian , PERSON , of extremely serious murder under Articles CARDINAL and CARDINAL of LAW , sentencing him to DATE imprisonment . It also increased the sentence under LAW in respect of GPE to DATE imprisonment . However , it reduced the other sentences under Articles CARDINAL and CARDINAL : in respect of GPE and S.I.P. from DATE imprisonment , in respect of ORG and GPE from DATE imprisonment , and in respect of GPE , GPE and GPE from DATE imprisonment . Finally , it discontinued the criminal proceedings against the Deputy Mayor PERSON

ORG also reduced the sentences of those convicted of destruction of property under LAW .

On DATE , ORG upheld the lower courts ' convictions for destruction , but reduced the charges of extremely serious murder to a lesser charge of serious murder with extenuating circumstances for GPE , ORG and S.I.P. , sentencing them to DATE imprisonment . It acquitted PERSON and GPE

By a decree of DATE , the President of GPE issued individual pardons to PERSON and ORG , convicted of serious murder , whereupon they were released .

On DATE , following new evidence brought to light in the criminal trial , the applicants lodged an appeal with ORG of ORG against the decision of DATE not to open an investigation against the police officers involved in the incidents of DATE .

On DATE the Chief Military Prosecutor of ORG upheld the military prosecutor at ORG decision of CARDINAL DATE .

By decision no . CARDINAL of DATE , ORG allocated CARDINAL NORP lei ( ROL ) for the reconstruction of the QUANTITY houses destroyed by fire on DATE . The Government decided , moreover , that this amount could also be used as financial assistance for the families affected in order to help them replace items of strict necessity destroyed during the fire . However , CARDINAL houses were rebuilt with this money and none of the families received financial assistance .

By a Government decision of CARDINAL DATE , a commission for the co - ordination of the reconstruction of the houses was created . Members of this commission included the mayor of PERSON , PERSON , and his Deputy , PERSON

In a letter of DATE addressed to the Government , the ORG indicated that an additional amount of ORG CARDINAL,CARDINAL,CARDINAL was needed to rebuild the remaining QUANTITY houses .

By decision no . CARDINAL of DATE , the ORG granted an additional sum of ORG in funds , which had been earmarked for natural disasters occurring DATE . CARDINAL other houses were rebuilt . As shown in photographs submitted by the applicants , these constructions were defective , as there appear to be huge gaps between the window frames and the walls , and the roofs only partially cover the houses .

In a letter dated DATE addressed to the Prefect of Mureş , PERSON , the father - in - law of the applicant PERSON , requested that her house be rebuilt as a priority because , since the events , she had been living with her CARDINAL children in a hen - house .

In a letter dated CARDINAL DATE , ORG , a human - rights association based in GPE , informed the ORG that QUANTITY houses had still not been rebuilt , which meant that CARDINAL families had to spend DATE without a dwelling . Moreover , according to the association , most of the victims had complained about the bad quality of the rebuilt houses and alleged that the money allocated for this purpose had been improperly used .

In a letter addressed to the ORG in DATE , the mayor of PERSON ( of which ORG is a part ) , PERSON , a member of the reconstruction commission , reported that , of the QUANTITY houses destroyed by the fire , QUANTITY had been rebuilt or almost rebuilt . Concerning the remaining QUANTITY houses , he reported that CARDINAL of them posed “ special problems ” based in part on “ the behaviour of the CARDINAL families ” , “ the seriousness of the acts committed and the attitude of the population of GPE towards these families ” . In particular , one of the houses to be rebuilt was on land near the non - Rom victim 's family ( PERSON ) , who refused to have Gypsy families living close by . Another problem mentioned by the mayor was the house of the late mother of CARDINAL of the GPE “ criminals ” who had died during the DATE events . It appeared that , after the events , the PERSON family had started living in the city of GPE , so the mayor had proposed that a house be built for them at a place of their choice .

To date , QUANTITY houses have not been rebuilt , of which CARDINAL belonged to the applicants Petru ( Dîgăla ) Lăcătuş and PERSON . According to an expert report submitted by ORG , the damage caused to the houses of Petru ( Gruia ) Lăcătuş and PERSON had not been repaired , whereas the houses of GPE Moldovan and PERSON had been rebuilt but required finishing work .

DATE . On DATE the applicant PERSON wrote a letter to the President of GPE , informing him that QUANTITY houses , including his , had still not been rebuilt . He urged the President to grant the necessary funds for the reconstruction of the houses , since he and his family were living in very difficult conditions in the home of the PERSON family : CARDINAL people , including QUANTITY children , were living in CARDINAL rooms and sleeping on the floor , which resulted in the children being continually ill .

The applicants submitted that , in general , following the events of DATE , they had been forced to live in hen - houses , pigsties , windowless cellars , or in extremely cold and deplorable conditions : QUANTITY people in CARDINAL room with no heating ; CARDINAL people in CARDINAL room with a mud floor ; families sleeping on mud or concrete floors without adequate clothing , heat or blankets ; CARDINAL people in a summer kitchen with a concrete floor ( Melenuţa Moldovan ) , etc . These conditions had lasted for DATE and , in some cases , continued to DATE .

As a result , the applicants and their families fell ill . In particular , the applicant Petru ( Gruia ) Lăcătuş had developed diabetes and begun to lose his eyesight .

Following the decision of DATE to sever the civil and criminal proceedings , on DATE ORG delivered its judgment in the civil case . The court noted that the victims had requested pecuniary damages for the destruction of the houses and their contents ( furniture , etc . ) , as well as non - pecuniary damages . The court further noted that , during the events of DATE , QUANTITY houses belonging to the GPE population in GPE had been totally or partially destroyed and CARDINAL GPE had been killed , a criminal court having found CARDINAL villagers guilty of these acts . Basing its decision on an expert report , the court awarded pecuniary damages for those houses which had not been rebuilt in the meantime , and maintenance allowances for the children of the GPE killed during the riots . On the basis of an expert report , the court awarded pecuniary damages in respect of the partial or total destruction of the houses of CARDINAL GPE , including those of the third and fifth applicants . The court rejected the other applicants ' request for pecuniary damages in respect of the rebuilt houses , finding , on the basis of the same expert report , that their value was either the same or even higher than the original buildings . It further refused all applicants damages in respect of belongings and furniture , on the ground that they had not submitted documents to confirm the value of their assets and were not registered as taxpayers capable of acquiring such valuable assets . The court stated , inter alia :

“ Mr Iulius Moldovan did not submit documents proving with certainty that he had any belongings . He claimed in particular that he was in the sheep business , from which he drew a substantial income , for instance , that he had QUANTITY of wool in the attic of his house . However , from the information obtained by the court from the local tax office in GPE , it appears that the civil party was not registered as having any income . ...

The damage suffered because of the destruction of the chattels and furniture has not been substantiated . The civil parties consider that their own statements , the lists of the belongings destroyed submitted to the court and the statements of the other witnesses who are also civil parties should be enough to substantiate their claims . Having regard to the context in which the destruction occurred and to the fact that all civil parties suffered losses , the court will dismiss as obviously insincere the statements made by each civil party in relation to the losses suffered by the other civil parties .

Last but not least , the type of belongings allegedly destroyed and the quantity of goods allegedly in the possession of each civil party show a much more prosperous situation than that which a family of average income could have . Neither civil party adduced proof of having an income such as to allow them to acquire so many goods . As noted previously , the parties had no income at all . Moreover , the shape of the houses , the materials used for their construction and the number of rooms show an evident lack of financial resources . It should be stressed in this context that only work can be the source of revenue , and not events such as the present one ... ”

The court finally rejected all the applicants ' requests for non - pecuniary damages on the ground that they had not substantiated their claim , and that the crimes committed were not of a nature to produce moral damage .

The court ordered the villagers convicted in the criminal trial to pay the damages awarded .

Having regard to some procedural errors in ORG judgment , the applicants lodged an appeal with ORG .

On DATE ORG found that a number of procedural errors had occurred during the public hearings on the merits before ORG : the hearings had been held in the absence of the accused and their lawyers ; CARDINAL of the original applicants , PERSON , had not been summoned ; the public prosecutor had not been given leave to address the court ; a number of expert reports ordered by the court had not been completed , and confusion had been created as to the number and names of the victims and their children . ORG concluded that these errors rendered the proceedings null and void . It therefore quashed the judgment of DATE and ordered a new trial of the case .

DATE . The Mureş Regional Court delivered its judgment in the civil case on CARDINAL DATE . The court noted that the victims had requested pecuniary damages for the destruction of houses and their contents ( furniture , etc . ) , as well as non - pecuniary damages . The court further noted that , during the events of DATE , QUANTITY houses belonging to the GPE population in GPE had been totally or partially destroyed and CARDINAL GPE had been killed . As a result of these events , the ORG had granted some money for the reconstruction of the houses .

Basing its decision on an expert report drafted in DATE and updated in DATE , the court ordered the following damages to be paid by the civilians found guilty by the criminal court :

( a ) Iulius NORP was awarded ROL CARDINAL in pecuniary damages in respect of the destroyed house , to be revised to take account of any devaluation in the national currency . The court further heard evidence from witnesses confirming that various assets belonging to the applicant , including furniture , belongings and the proceeds from the sale of CARDINAL sheep , had been destroyed during the fire . However , the court refused to award damages on the ground that it was impossible to assess the loss .

( b ) As regards PERSON , the court noted that her house did not appear on the list of the houses ( totally or partially ) destroyed drawn up by FAC . The court heard testimony confirming the destruction of part of the roof and of the wooden structure of her house , but noted that there was no evidence to evaluate the damage . Therefore , it rejected the request for pecuniary damages .

( c ) ORG ( Gruia ) Lăcătuş was awarded ROL CARDINAL,CARDINAL,CARDINAL in pecuniary damages in respect of the destroyed house . The court noted the applicant 's claim that various assets he had owned had been destroyed during the fire – furniture , CARDINAL cars , jewellery and money – but rejected it as unsubstantiated .

( d ) As regards PERSON , the court awarded LAW for the destroyed house . The court heard evidence from CARDINAL witnesses confirming that the applicant had had various belongings which had been destroyed by the fire , but refused to award damages in that respect , as there was no evidence as to their value .

( e ) PERSON was awarded ROL CARDINAL,CARDINAL for the destroyed house . The court rejected her claim in respect of the destroyed belongings as there was no evidence as to their value .

( f ) ORG ( Dîgăla ) Lăcătuş was awarded , together with PERSON and PERSON , as the brother and sisters of the deceased victims , ROL CARDINAL for the destroyed house , to be revised to take account of any devaluation in the national currency . The court rejected their claim in respect of their destroyed belongings on the ground that the losses had not been substantiated . It also rejected as unsubstantiated the claim for the reimbursement of the money spent on the burial of the victims .

( g ) PERSON , the widow of one of the victims who had died burned alive during the riots , also requested a maintenance allowance for her minor child . The court noted that although the applicant claimed that her husband used to be a manufacturer of woollen coats , she had not submitted any evidence as to his income , and therefore decided to take the statutory minimum wage as the basis for the calculation of the allowance , namely , ROL CARDINAL,CARDINAL,CARDINAL . Moreover , it found that it was impossible to establish how much the applicant 's husband used to spend on his child 's maintenance , and applied the minimum granted by LAW , that is CARDINAL of the minimum wage , which amounted to ROL CARDINAL,CARDINAL . Finally , the court took into account that the deceased victims had provoked the crimes committed and decided to halve the above - mentioned amount . It therefore awarded ROL CARDINAL per month in maintenance allowance for the applicant 's minor child .

Finally , the court rejected all the applicants ' requests for non - pecuniary damages on the ground that they had not substantiated their claim , and that the crimes committed were not of a nature to produce moral damage .

On appeal by the persons convicted and the applicants , the Târgu - Mureş Court of Appeal gave judgment on DATE . The court recalled that , under the combined provisions of LAW and ORG , it was bound by the ruling of the criminal court . Referring to recent publications by NORP authors in the field of civil law and the ORG 's case of ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL ) , the court found that ,

“ By their behaviour , the accused infringed the property rights of the complainants , for which pecuniary damages had already been awarded ; however , some of the civil parties should also be awarded damages from a moral point of view . Some of the civil parties were deprived emotionally , as a result of the damage sustained , of the security which they had felt in the destroyed houses , of the comfort they had enjoyed as a result of the facilities of the houses , all these movable and immovable goods being the result of their work , which guaranteed them a normal standard of living , having regard to their personalities ...

As shown above , the accused committed the crimes in a state of provocation , which led the court to apply the provisions of LAW [ regarding extenuating circumstances ] . For this precise reason , the civil parties enumerated below are entitled to a certain amount of damages , but not the amount requested ... ”

The court awarded the following amounts : ROL CARDINAL,CARDINAL,CARDINAL to PERSON as it found that she had had to leave the village and wander homeless in the country and abroad ; ROL CARDINAL,CARDINAL,CARDINAL to PERSON as he had been profoundly affected by the events , had lost his fortune and his health had deteriorated substantially ; ROL CARDINAL,CARDINAL,CARDINAL to Otilia Rostaş as she had suffered psychological and emotional trauma for the same reasons ; ROL CARDINAL,CARDINAL,CARDINAL to PERSON for the same reasons as PERSON ; ROL CARDINAL,CARDINAL,CARDINAL to PERSON for the psychological trauma suffered as a result of the partial destruction of her house ; and ROL CARDINAL,CARDINAL,CARDINAL to Petru ( ORG since he had sustained deep emotional damage and felt insecure as a result of the burning of his parents ' house . No award was made in respect of Petru ( Gruia ) Lăcătuş .

The civil parties filed an appeal against this judgment , which was rejected by a final decision of ORG , on DATE .

Article CARDINAL of the Code of Civil Procedure , as amended by Government Order no . CARDINAL/CARDINAL , provides that a court examining a civil action can suspend the proceedings :

“ ... CARDINAL . NORP if criminal proceedings have been instituted in relation to a crime , the determination of which is decisive for the outcome of the civil dispute . ”

“ Criminal proceedings can not be instituted and , if instituted , can not be continued if ...

c ) the act was not committed by the defendant ; ... ”

“ The person who has suffered civil damage can join the criminal proceedings ...

He or she can do so either during the criminal investigation ... or before the court ... ”

“ The findings contained in a final judgment of the criminal court concerning the issue whether the act in question has been committed , and the identification of the perpetrator and his guilt , are binding on the civil court when it examines the civil consequences of the criminal act . ”

“ In case of a conviction or an acquittal , or the termination of the criminal trial , the court shall deliver a judgment in which it also decides on the civil action .

Civil damages can not be awarded if an acquittal was decided on the ground that the impugned act did not exist or was not committed by the accused . ”

Articles CARDINAL of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has negligently caused it .

Article CARDINAL of the Civil Code provides that , where CARDINAL person has committed an intentional tort , they shall be jointly and severally liable .

The Government submitted a number of cases in which domestic courts had decided that the prosecutor 's decision , based on LAW b ) of LAW , not to open a criminal investigation on account of the absence of intention – as an element of DATE did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question .

The Government submitted CARDINAL case , dating back to DATE , in which ORG had decided that the prosecutor 's decision , based on LAW , not to open a criminal investigation having regard to the fact that the acts were not committed at all or were not committed by the defendant , should not prevent civil courts from examining a civil claim arising out of the commission of the same act by the person in question . ORG decision dealt solely with the competence issue and did not specify whether there was a legal provision offering a chance of success for such an action .

The common view of the criminal - procedure specialists is that a civil court can not examine a civil action filed against a person against whom the prosecutor has refused to open a criminal investigation on the grounds provided for in LAW ) of LAW that the acts were not committed at all or were not committed by the defendant ( see LAW , PERSON and Others , p. CARDINAL , GPE DATE , and LAW , PERSON , pp . CARDINAL - CARDINAL , GPE DATE ) .

The common view of the civil - procedure specialists and of some criminal - procedure specialists is that the prosecutor 's decision refusing to open a criminal investigation on the grounds mentioned in the previous paragraph , does not prevent a civil court from examining a civil action brought against the defendant . In such a case , civil courts are entitled to decide whether the acts were committed and by whom , but have to rely on the findings of the prosecutor set out in the decision refusing to open a criminal investigation ( see ORG and the Criminal Trial , PERSON , RRD no . CARDINAL/CARDINAL , and Criminal Procedural Law , PERSON ORG , p. CARDINAL , GPE DATE ) .


The applicant , PERSON , is a NORP national , who was born on DATE in GPE and lives in GPE , the LOC . He is a retired officer of the prosecution service of GPE . The respondent Government were represented by their Agents , PERSON , succeded by PERSON .

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

In DATE the applicant commenced work in the prosecution service . On DATE the applicant retired from the position of prosecutor - criminologist in ORG . However , he was re - appointed and continued working there until DATE . On DATE he voluntarily retired . As from DATE he started to receive his pension , calculated on the basis of LAW and his DATE of service .

As from DATE , the Decree of the President of DATE provided for a pay rise for the prosecution service employees in accordance with their respective ranks . The pay rise was given effect by CARDINAL resolutions of ORG of DATE and DATE .

In DATE the applicant applied to have his pension recalculated . On DATE ORG refused to re - calculate the applicant 's pension with reference to the applicant 's period of work DATE . It based its decision on a letter , dated DATE , of ORG ( No . CARDINAL - CARDINAL/CARDINAL - CARDINAL - CARDINAL ) , which provided inter alia that the PERSON on ORG did not envisage the recalculation of pensions following a pay rise . The decision stated that there was no specific resolution of the Cabinet of Ministers dealing with the recalculation of pensions in the event of an intervening pay rise .

The applicant complained about this decision to ORG ( “ the Ministry ” ) in the LOC . On DATE the ORG rejected the applicant 's complaint , maintaining that the law did not provide for a recalculation of his pension . It also referred to a recommendation by ORG in a letter dated DATE ( No . DATE ) . ORG recommended to the lower courts that LAW DATE and ORG on pension recalculations were not applicable to persons who had became pensioners under LAW .

On DATE , the applicant instituted proceedings in ORG against the decision of ORG refusing him a higher pension . On DATE , ORG rejected his claims as being unsubstantiated , referring to the letter - recommendations of ORG of DATE and DATE . In particular it held that :

“ ... The court has established that , ORG , a former employee of the prosecution service , being a pensioner , applied to ORG to have his pension recalculated . He maintained that , since the salaries of the prosecution service employees were to be increased in accordance with the Decree of the President of GPE , his pension should thereby be recalculated . ORG refused to recalculate his pension , grounding its decision on the absence of a special resolution of ORG in this connection . GPE on ORG does not provide for a recalculation of a pension because of a raise in salaries . Since ORG acted in accordance with the explanations of the judicial bodies , the complaint of GPE against its actions is therefore unsubstantiated .... ”

On DATE the applicant lodged a cassation appeal against this decision . On DATE , ORG of the LOC upheld it . In particular , it stated that :

“ Having considered the case file , and having discussed the applicant 's complaints set out in his cassation appeal and heard the explanations of ORG , the judicial chamber holds that it has no basis on which to allow his claims . The decision is in conformity with the legislation and evidence established in the course of the proceedings in the case .

In adopting its judgment , the court took into account that the applicable legislation , including the PERSON on ORG , does not provide for a recalculation of pensions on account of changes to the salaries of prosecution service employees who retired from the service .

The applicant 's complaints that the court decision was adopted on the basis of non - established factual circumstances and did not conform to legislation are unsubstantiated . The evidence was assessed in accordance with LAW and there is no basis on which to declare the judgment erroneous .

The court 's judgment is correct and substantiated . There are no grounds to annul this judgment .

As to the recommendations of the judicial bodies , the judicial chamber considers it necessary to exclude from the judgment of the court the reference to ... the letter of ORG of GPE with regard to this issue ... as not being based on the law .

Resolves

To leave the decision of ORG of DATE unchanged , and reject the complaints of ORG

To exclude from the statement of reasons of the judgment the opinion and the reference of the court , with respect to the claim of ORG , to the recommendations of ORG of GPE to the judicial bodies , ... ”

The applicant complained about this decision to ORG . On DATE it rejected the applicant 's complaint , maintaining that the law did not provide for a recalculation of his pension . It also referred to a recommendation by ORG in a letter dated DATE ( No . DATE ) . ORG recommended to the lower courts that LAW DATE and ORG on pension recalculations were not applicable to persons who had became pensioners under LAW . It also referred to the letter - recommendation of CARDINAL DATE .

On DATE the applicant wrote a letter to ORG [ ORG of GPE is responsible for the registration of the legal acts of the bodies of ORG power ] with regard to the legal validity of the recommendations of ORG as to the recalculation of his pension . On DATE ORG responded that letters recommending certain courses of action , issued by ORG institutions , are not registered by ORG , since they are merely legal explanations pertaining to a particular matter .

On DATE the applicant requested ORG of ORG to recalculate his pension since the entry of the LAW GPE “ on the Introduction of changes to the PERSON on the Prosecution Service of DATE ” .

On DATE ORG recalculated his pension . He started to receive an increased pension of UAH CARDINAL,CARDINAL.CARDINAL .

On DATE ORG recalculated the applicant 's pension again due to the entry into force of the Decree of the President of GPE of DATE and the internal normative acts of ORG . His pension was , accordingly , raised to ORG DATE .

“ ORG have the right to social protection that includes the right to a provision in cases of complete , partial or temporary disability , the loss of the principal wage - earner , unemployment due to circumstances beyond their control , and also old age , and in other cases established by law .

This right is guaranteed by general mandatory State social insurance on the basis of the insurance payments of citizens , enterprises , institutions and organisations , and also from budgetary and other sources of social security , by the establishment of a network of ORG , communal and private institutions to care for persons incapable of work .

Pensions and other types of social payments and assistance , that are the principal sources of subsistence , shall ensure a standard of living not lower than the minimum living standard established by law . ”

“ ... the time - in - service pension shall include the relevant postholder 's salary , bonuses for the post occupied , time - in - service , and also other payments in accordance with LAW . ”

“ Prosecutors and investigators with work experience of not DATE , including those with work experience in the position of prosecutors and investigators of not DATE , have the right to a pension for the time - in - service irrespective of their age ...

Pensions assigned to employees of the prosecution service shall be recalculated following any increase in the salary of the relevant categories of prosecution officers and investigators . ... The provisions of this LAW extend to retired employees of the prosecution service who , before the entry into force of this law , were assigned an old age pension , time - in - service pension or disability pension ... , irrespective of the time when they became pensioners , only work experience being taken into account , as required by LAW . ... ” ( This PERSON was amended by LAW , in accordance with LAW . CARDINAL - CARDINAL of CARDINAL , and PERSON No . CARDINAL-III ( CARDINAL - CARDINAL ) of CARDINAL . )

This PERSON provided for the recalculation of pensions if a pay rise intervened ( Article CARDINAL of the PERSON ) .

Both texts envisaged pay rises for employees of the prosecution service as of DATE .

This recommendation , by way of a letter issued to the Presidents of the regional courts , stated that the recalculation of pensions shall not cover former employees of the prosecution service who received pensions in accordance with LAW .

This recommendation , by way of a letter given to ORG , stated that the recalculation of pensions shall not cover former employees of the prosecution service who received pensions in accordance with LAW .

The applicant provided the ORG with decisions in the cases of former prosecution service officers whose pensions were recalculated following judgments in their favour :

– a ruling from ORG of DATE on the claim of PERSON ;

– a ruling from ORG of DATE on the claim of GPE ;

– a decision from ORG of DATE on the claim of PERSON ;

– a decision from the ORG of GPE of DATE and the ruling of ORG of DATE upon the claim of Pleskach V.G ; and

– a decision from ORG of DATE upon the claim of ORG ( This judgment was quashed by ORG DATE ) .

The applicant alleged that , in all of these cases , the claimants requested the recalculation of their pensions in view of the changes to the legislation concerning the salaries of prosecution service employees . He further maintained that their claims were allowed .

The Government provided the ORG with decisions in cases of former prosecution service employees whose claims for recalculated pensions were rejected as the legislation did not provide for such adjustments :

– a ruling from ORG of DATE given by a chamber of CARDINAL judges on the claim of Tyurin PERSON ;

– a judgment of DATE from LOC of GPE on the claims of PERSON ;

– judgments of DATE from ORG and the GPE ORG of Chernigiv of DATE on the claims of PERSON ;

– a judgment of DATE from the Darnytsky ORG of GPE on the claims of PERSON ;

– judgments of DATE and DATE from ORG and ORG of L'viv on the claims of ORG ;

– a judgment of CARDINAL DATE from the GPE ORG of Kirovograd on the claims of PERSON ;

– a judgment of DATE from the ORG of GPE on the claims of ORG ;

– a ruling of DATE from ORG and the judgment of DATE from ORG of PERSON on the claims of PERSON ;

– a ruling of DATE from ORG and the judgment from the GPE ORG of Donetsk Region on the claims of Lobayev A.A. ;

– a ruling of DATE from ORG and the judgment from ORG of DATE on the claims of PERSON ;

– a ruling of DATE from ORG of the LOC , rejecting the claims of ORG for the recalculation of his pension , and quashing the judgment from ORG of DATE ;

– a judgment of DATE from the GPE ORG of PERSON on the claims of PERSON ;

– a ruling of CARDINAL DATE from ORG of the LOC on the claims of GPE ; and

– a ruling of CARDINAL DATE from ORG and the judgment of DATE from ORG of GPE on the claims of PERSON


No violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient

Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested by the customs authorities in GPE after QUANTITY of heroin had been found in her car . On DATE the ORG convicted the applicant of drug - trafficking and sentenced her to DATE imprisonment . On DATE she was released from a prison in GPE .

On DATE ORG instituted an investigation concerning drug - trafficking from GPE to GPE by the applicant and other persons , acting in connection with a request for legal assistance submitted by the NORP and NORP prosecution authorities .

On DATE the applicant was arrested in GPE . On DATE ORG served on her the statement of charges . The applicant was charged with supplying significant amounts of heroin to the market DATE in GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . She was also charged with acting in an organised criminal group of drug traffickers . During her questioning by the prosecutor , she confessed that she had attempted to smuggle heroin to GPE and responded to all questions put by the prosecutor .

On DATE the GPE ORG remanded the applicant in custody until DATE on reasonable suspicion that she had committed the offences referred to above . It held that there was a risk that the applicant would obstruct the proceedings by influencing witnesses since she had not confessed . The court also took into account that the applicant had been charged with acting in an organised criminal gang and had regard to the severity of the anticipated penalty .

On DATE the GPE ORG prolonged the applicant 's detention until DATE . It found that there was a reasonable risk that the applicant might tamper with evidence , having regard to the number of suspects involved . It also relied on the severity of the anticipated penalty , given the organised character of the criminal activities , their scale and the amount of drugs involved . Lastly , it referred to the need to continue the process of gathering evidence .

In her appeal the applicant submitted that her continued detention was not necessary to secure the proper conduct of the investigation . She argued that she had already given evidence and that she had had no contacts with the witnesses or other suspects , so the risk of tampering with evidence did not exist in her case . Her appeal was dismissed on DATE .

On DATE ORG lodged with ORG a motion for the prolongation of the applicant 's detention until DATE .

On DATE ORG notified the applicant 's counsel of the hearing scheduled for DATE at which the prosecution 's motion would be examined .

On DATE ORG held a hearing ( posiedzenie ) on the prolongation of the applicant 's detention .

According to the Government , before the hearing had begun the applicant 's counsel consulted the prosecution 's motion without authorisation from the judge .

During the hearing the applicant 's counsel applied for access to the investigation file . ORG stated that his motion for prolongation of the detention constituted an integral part of the file and that access to it required his permission . The prosecutor also stated that the counsel had not applied earlier for leave to consult the file . Counsel unsuccessfully requested the court to adjourn the hearing until she had been granted access to the file . ORG , having regard to LAW , held that it could not decide on the counsel 's request for access to the file since such decision was within the exclusive competence of the authority conducting the investigation . The judge informed both parties that the counsel 's request would be transmitted without undue delay to ORG for examination .

The applicant 's counsel requested the court to dismiss the motion for prolongation because the prosecutor had simply stated that he maintained it without giving specific reasons for it .

The GPE ORG granted the prosecution 's motion and extended the applicant 's detention until DATE . In the reasons for its decision , the court noted that the applicant had pleaded not guilty and had denied that she had taken part in an organised criminal group trafficking in heroin . Having regard to the applicant 's statements and the number of suspects involved , the court considered that there was a reasonable risk that the applicant might tamper with evidence . In this connection , it had regard to the fact that several other potential suspects were still being sought .

The applicant 's counsel appealed . She alleged , relying on LAW , that ORG had violated the principle of adversarial proceedings . In this connection , she submitted that ORG motion for prolongation of detention had been received at ORG on DATE . However , it was only in the TIME of DATE that the applicant 's counsel had been notified by telephone that the court 's hearing would be held on DATE at TIME Having further regard to the fact that counsel had not been served with a copy of the prosecutor 's motion , she argued that she could not properly defend the interests of the applicant . Counsel further submitted that the prosecutor had not read out the grounds of his application during the hearing .

On DATE ORG dismissed the applicant 's appeal . It noted that the applicant had been charged with participation in an organised criminal group which operated in a number of NORP countries . In this context , it considered that there was a risk that the applicant might obstruct the proceedings if released . ORG further relied on the severity of the anticipated penalty and emphasised the danger to society posed by the drug trafficking . Furthermore , ORG dismissed the applicant 's allegations regarding access to the file and the belated summoning of her lawyer to the hearing . It held , in so far as relevant :

“ The limitation on the lawyer 's access to the investigation file results from the binding procedural rules .

The court 's hearing on the matter of detention is ancillary to the main proceedings and thus notification of this hearing can be effected shortly before the date for which it has been fixed . The lawyer was notified of the hearing at TIME on DATE the hearing . Thus , it can not be said that the court was at fault in this respect . ”

It appears that the request of the applicant 's counsel for leave to consult the file made during the hearing held on DATE was received by ORG only on DATE . On DATE the ORG refused that request , invoking the interests of the investigation ( ważny interes postępowania ) . The prosecutor observed that the investigation was at its early stages and still in progress . Furthermore , he found that for reasons which had not been attributable to the prosecution a number of important witnesses had not yet been heard . The applicant appealed against that decision , relying on the principle of equality of arms . On DATE ORG upheld the refusal of CARDINAL DATE . He observed that the restrictions on access to the file had been temporary and justified by the interests of the investigation . In the latter respect , ORG referred to the organised character of the criminal activities at issue and the number of suspects involved . He considered that in those circumstances , the interests of the investigation weighed against the applicant 's right to be acquainted with all the evidence obtained so far in the case .

On DATE ORG lodged with ORG a motion for prolongation of the applicant 's detention until DATE .

On DATE the applicant 's counsel was informed about the hearing scheduled for DATE regarding prolongation of detention . On ORG CARDINAL the applicant 's counsel requested LOC to adjourn the hearing until she had received a copy of the prosecutor 's motion . The court refused that request .

On DATE the applicant 's counsel requested ORG to provide her with a copy of his motion for the prolongation of the applicant 's detention with a view to preparing for the court 's hearing .

On DATE the ORG granted the prosecution 's motion and ordered that the applicant be held in custody until DATE . It relied on the same grounds as in its earlier decisions . During the hearing ORG indicated that his motion for prolongation referred to , inter alia , the need to question one person whose details could not be disclosed . The counsel stated that the prosecutor simply referred to the relevant provisions of LAW but did not provide any specific grounds justifying the prolongation of the applicant 's detention .

On DATE ORG refused to grant the applicant 's counsel access to the file following her application of DATE , having regard to the interests of the investigation . He considered that the lawyer 's request was tantamount to a request for access to the entire contents of the investigation file . Consequently , it refused the request on the same grounds as in the decision given on DATE . The applicant appealed . On DATE ORG upheld the refusal on the same grounds as in his earlier decision .

The applicant 's counsel appealed against the decision of DATE prolonging the applicant 's detention . She argued that she had not been provided with a copy of the prosecution 's motion and that she had not been notified in good time of the hearing . She submitted that consequently she had been prevented from properly discharging her obligations as the applicant 's counsel .

On DATE ORG dismissed the appeal . As regards the refusal to provide the applicant with a copy of the prosecution 's application for prolongation of detention , ORG found that the prosecutor was the only authority competent to decide on the issue of access to the file at the investigation stage and that any decision in this respect might be reviewed by a higher prosecutor . In respect of the notification of the hearing to the lawyer , the court found the applicant 's complaint unfounded . It considered that in cases of detention , such notification could be made by telephone .

On DATE the applicant 's counsel was notified by telephone about the hearing scheduled for DATE . On DATE counsel unsuccessfully requested ORG to adjourn the hearing since she had not been provided with a copy of the prosecutor 's application for prolongation of detention and thus could not prepare for the hearing fixed for DATE . On DATE the counsel applied to the prosecutor for leave to obtain a copy of the application for prolongation of the applicant 's detention . On DATE the ORG refused that request , having regard to the interests of the investigation and to the fact that it was still in progress .

On DATE ORG held a hearing . It granted the prosecution 's motion and ordered that the applicant be remanded in custody until DATE . It had regard to the reasonable suspicion that the applicant had committed the offences with which she had been charged . It relied in this respect on the evidence gathered to date , including evidence given by the applicant and her co - suspect , and the documentary evidence obtained from abroad . It also considered that there was a reasonable risk that the applicant might tamper with evidence , given that some of the co - suspects were still at large and that the case concerned an organised criminal group . It also had regard to the need to take further measures in the investigation as indicated in the prosecution 's application for prolongation of detention .

On DATE the statutory time - limit of DATE for the applicant 's detention pending the investigation expired . Consequently , any further prolongation of the applicant 's detention was to be decided by ORG .

On an unspecified date the Katowice Appellate Prosecutor lodged with ORG a motion for prolongation of the applicant 's detention until DATE . On DATE ORG notified the counsel about the hearing scheduled for DATE .

On DATE ORG held a hearing . It appears that during the hearing ORG agreed to provide counsel with a copy of his motion for prolongation of the detention . ORG granted the prosecution 's motion and extended the applicant 's detention until DATE . It noted that the investigation in the present case , which concerned trafficking in substantial amounts of drugs in a number of NORP countries , had been very time - consuming . It was further complicated by the need to obtain evidence from abroad and to hold a confrontation between the suspects and a certain GPE who had been recently transferred to GPE from GPE to serve his sentence . The court noted that another important suspect GPE , who had lived abroad , had been arrested in DATE . It thus considered that the investigation was being conducted without undue delays , and that the extension of the detention pending the investigation beyond the statutory time - limit was due to the exceptional circumstances . ORG also had regard to the scale of the alleged criminal activities and the severity of the anticipated penalty . The applicant appealed against that decision .

On DATE ORG upheld the impugned decision . It referred , inter alia , to the presumption established by LAW to the effect that the likelihood of a severe penalty being imposed on the applicant might induce her to obstruct the proceedings . In view of the said presumption , ORG underlined that it was not required to consider the imposition of other preventive measures .

On DATE the applicant 's counsel requested ORG to release the applicant subject to certain guarantees .

On DATE ORG ordered the applicant 's release , having obtained a bail deposit and an additional personal guarantee from a local councillor that the applicant would not obstruct the proceedings . The applicant 's passport was seized and she was ordered not to leave the country . The prosecutor noted that despite the fact that DATE had elapsed since the applicant 's arrest , the investigation had not been concluded . He observed that the prosecution was endeavouring to obtain evidence from abroad , however it could not be predicted when that evidence would be made available . The prosecutor considered that the applicant should not be prejudiced by those delays and that other preventive measures would be sufficient to secure the proper conduct of the proceedings .

On DATE the applicant 's lawyer was informed by ORG that she could apply for access to the investigation file pursuant to LAW as the investigation was coming to an end . On DATE the applicant 's counsel was allowed to consult the file .

On DATE the prosecution filed a bill of indictment with ORG . The applicant was charged with drug - trafficking and acting in an organised criminal group .

On DATE the applicant made a plea and requested the trial court to sentence her to DATE imprisonment and a fine . The prosecution did not object . On DATE the ORG convicted the applicant as charged and sentenced her to DATE imprisonment and a fine .

The applicant appealed . She argued that the trial court had not taken into account her conviction in GPE . ORG dismissed her appeal on DATE .

The relevant domestic law and practice regarding the imposition of detention on remand ( tymczasowe aresztowanie ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) at the material time are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .

Access to the file in the course of investigation is governed by Article CARDINAL § CARDINAL of LAW , which provides , in so far as relevant , that leave to consult the file and to make copies of the documents in the file is granted only with the consent of the authority conducting the investigation .

On DATE the ORG lodged an application with ORG seeking constitutional review of LAW CARDINAL of LAW .

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

Article CARDINAL of the LAW , insofar as relevant , provides as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . ”


Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

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

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

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

NORP The applicant requested asylum in GPE on DATE under a false name , giving a false date of birth . He claimed that he had fled GPE after a violent conflict between CARDINAL neighbouring villages over land . His mother had been killed in a hospital and he had no family left in GPE .

On DATE ORG ( PERSON für PERSON ) convicted the applicant of drug trafficking and attempted drug trafficking , finding that the trafficking had been repeated and large scale in nature , and sentenced him to CARDINAL months’ imprisonment .

Thereupon , an exclusion order ( ORG ) was issued against the applicant on DATE , which became final .

On DATE ORG ( Bundesasylamt ) dismissed the applicant ’s asylum request and ordered his expulsion to GPE . ORG found the applicant ’s reasons for having fled GPE to be vague , lacking substantiation and thus not credible .

The applicant appealed against that decision and notified ORG ( PERSON ) on DATE of his real name and date of birth .

After having served DATE of his prison sentence , the applicant was conditionally released from prison on CARDINAL DATE .

On DATE the applicant married an NORP citizen .

On DATE ORG held a hearing , during which the applicant explained that he had given a false name to the NORP authorities to protect himself , but that he now wanted to disclose the real reasons for his having fled GPE . He continued by stating that he had been a driver for a regional minister who had accused him of having been involved in a plot to kill him in DATE . After the failed assassination attempt , corrupt police officers and soldiers had started to round people up and to arrest them . The applicant himself had gone to a friend ’s house and had hidden there for DATE until he had heard that his mother had been shot by the minister ’s guards because she would not tell them the applicant ’s whereabouts . Thereupon , the applicant had left for GPE , but it had not been safe there either and he had been shot at .

On DATE ORG dismissed the applicant ’s appeal , holding that his story was not credible , as what he had told the ORG was entirely different to what he had told ORG . Furthermore , his “ new ” reasons for having fled were again very vague , lacking important details and unconvincing . ORG made some observations concerning the general situation in GPE and with regard to Decree no . CARDINAL , a law penalising “ harming the reputation of GPE abroad ” . It held that while NORP citizens who were expelled from another country for having committed a drug - related crime were in principle liable to be punished under Decree no . CARDINAL with a prison sentence , no incident in which an expelled asylum seeker had been arrested at the airport for political motives upon returning to GPE had been recorded according to a country information report produced by ORG . With regard to LAW , ORG held that the applicant ’s expulsion was justified under the second paragraph of that provision in view of his criminal conviction under LAW .

The applicant complained to ORG ) and ORG ( Verwaltungsgerichtshof ) , applying for his complaint to have suspensive effect and for legal aid .

On DATE ORG granted suspensive effect to the applicant ’s complaint .

On DATE ORG refused to grant the applicant legal aid due to the complaint ’s lack of prospects of success .

Finally , on DATE ORG refused to deal with the applicant ’s complaint due to the lack of an important legal issue . That decision was served on the applicant ’s counsel on CARDINAL DATE .

The Asylum Act DATE ( Asylgesetz CARDINAL ) , applicable at the relevant time , governed the conditions under which asylum could be granted to asylum seekers and asylum proceedings . Its Article CARDINAL § CARDINAL provided that after the asylum authority had dismissed an asylum request and had declared expulsion to the asylum seeker ’s country of origin permissible , it should combine the dismissal of the request with an expulsion order .

Current information on NORP Decree no . DATE is scarce . ORG ( “ NDLEA ” ) , established by the Decree no . CARDINAL in DATE , points to ORG ( Amendment ) Decree no . CARDINAL as another measure adopted in dealing with the problem of illegal drugs . As stated on the ORG ’s website ( www.ndlea.gov.ng ) , Decree no . CARDINAL prescribes a prison term of DATE for persons convicted of trafficking in drugs abroad , and by so doing bringing GPE into disrepute .

GPE on GPE of DATE ( “ the COI Report ” ) referred to a ORG fact - finding mission in DATE and DATE , during which senior officials of the PERSON were interviewed about the enforcement of Decree no . DATE . The ORG officials had stated that Decree no . DATE had been enforced from DATE . DATE , ORG statistical information had shown that CARDINAL NORP had been prosecuted and convicted under the provisions of Decree no . CARDINAL . The ORG officials had further stated that in DATE the ORG had reviewed the enforcement of Decree no . CARDINAL and had suspended prosecutions under LAW . This step had been taken in response to public concern that the ORG had prosecuted people who had been convicted of drug offences abroad twice for the same offence . Consequently , since DATE , there had been no prosecutions of returning NORP convicted of drug offences abroad under the provisions of Decree no . CARDINAL . ORG officials had finally explained that immigration officials in GPE were normally informed of a deportation before the individual concerned was deported . Once a deportee arrived in GPE , PERSON officers monitored the activities of the individual , but did not take any action to arrest him or her ( see page CARDINAL of ORG , at paragraphs CARDINAL and CARDINAL ) .


Violation of Article 1 of Protocol No. 1 - Protection of property

Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicants are brothers , who were born in DATE and DATE respectively and live in GPE and GPE ( GPE ) respectively .

In DATE the ORG parents bought a QUANTITY . m plot of land with a QUANTITY building on it . In DATE they built a QUANTITY building , linked to the existing CARDINAL . The property is situated in GPE , at the crossroad of CARDINAL streets , GPE no . CARDINAL and GPE din DATE no . CARDINAL .

In DATE the property of the applicants’ parents was seized by the ORG under Decrees nos . PERSON and CARDINAL/CARDINAL .

NORP In DATE CARDINAL of the then tenants bought CARDINAL of the flats .

On DATE and DATE respectively , ORG Instance declared the CARDINAL sales null and void on the ground that they had ignored the legal provisions . However , on DATE and CARDINAL DATE respectively the CARDINAL sales were deemed valid by court decisions .

On DATE the first applicant brought an action for the recovery of possession of immovable property , requesting the court to declare the nationalisation of her property unlawful and to order its return to her . The second applicant and the former tenants intervened in the proceedings . The former tenants claimed to be the owners of the CARDINAL flats bought in DATE and sought a declaration that they had acquired a right of property through acquisitive prescription , being in good faith .

On DATE the applicants lodged an application with the administrative authorities for restitution in kind of the property under Law no . CARDINAL/CARDINAL governing immovable property wrongfully seized by the ORG . So far they have not received any answer .

On DATE ORG , in the operative part of a final decision , allowed in part the applicants’ action for recovery of possession , excepting the CARDINAL flats bought by the former tenants , who were considered as being their owners . In the reasoning of the judgment the court stated that the seizure had been unlawful , that the ORG had no title to property since the CARDINAL decrees had been contrary to the Constitutions of DATE and DATE respectively , and that the entire property belonged to the applicants’ parents , the applicants being their sole heirs . However , it considered that the former tenants , although buying from a non - owner , the ORG , had been in good faith and had acquired a right of property through acquisitive prescription . It would have been exaggerated and manifestly unfair to have requested the former tenants to question the validity of the ORG ’s title at that moment .

NORP The relevant legal provisions and jurisprudence are described in the judgments GPE v. GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINALVII ) ; PERSON and Others v. GPE ( no . MONEY , § § DATE , ORG CARDINALVII ) ; ORG v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINAL-XII ( extracts ) ) ; and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .


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

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

In DATE criminal proceedings were instituted against the applicant and his accomplices . They were charged with lethal bodily assault . After ORG had preferred a bill of indictment in the case , at TIME on DATE ORG held a hearing and prolonged the applicant ’s pre - trial detention until the delivery of the first - instance decision on the merits . The applicant ’s lawyer appealed .

At TIME on DATE the court held another hearing ( a ‘ session on LANGUAGE ( óvadéki ülés ) ) in the presence of inter alia the applicant , his lawyer and the public prosecutor , concerning the applicant ’s request for release on bail with a surety of MONEY . In its decision rejecting the request , ORG stated that it had held a ‘ session on NORP and found that the applicant ’s appearance for trial could only be secured if his detention was maintained . The applicant and his lawyer immediately appealed .

In the subsequent reasoning of his appeal to ORG , the applicant ’s lawyer argued that the applicant ’s detention was unjustified and that the request for release on bail had been dismissed in unlawful proceedings . He alleged that ORG had not actually held a session on bail as required by section CARDINAL(CARDINAL ) of LAW , or if it had done so , it had failed to hear the prosecutor , the defendant , the lawyer or the person proposing the bail .

On DATE ORG dismissed the applicant ’s appeal , both in respect of the prolongation of the detention and the dismissal of the request for release on bail .

Section CARDINAL ) of Act XIX of DATE on LAW provides :

“ ... The court shall decide on the proposed bail and its acceptance during a session at which it shall hear the public prosecutor , the defendant , the defence attorney and the person who has proposed to put up the bail surety . If , despite notification , the defence attorney fails to appear for the session , the court may hold the session in his absence . ”