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

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

The applicants are all NORP citizens .

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

The applicants are all former employees of ORG , a bank , which was involved in a large restructuring process of ORG - owned companies in GPE , entailing collective dismissals .

The collective dismissal of employees of PERSON took place in different stages between DATE and DATE . It affected CARDINAL of persons across GPE working either in the central office or in the local branches of the bank as follows : CARDINAL persons dismissed in DATE , QUANTITY persons dismissed in DATE and CARDINAL persons dismissed in DATE . No precise numbers were available for the final stages of the dismissal process . From the case file , it appears that the applicants were dismissed during DATE .

The applicants made several attempts to receive compensatory sums for collective dismissal ( see paragraph CARDINAL below ) before ORG and ORG ( “ the agency ” ) , a ORG agency entrusted with the disbursement of these payments , but did not have any success .

On DATE , they brought an action against the agency , seeking to be granted the compensatory payments . They argued that according to the applicable law , their right had arisen on the date on which their contracts had been terminated . The fact that B. had failed to submit to the agency a list of the persons whose contracts had been terminated could not be imputed to the employees . Moreover , there was established case - law upholding applications submitted by other former employees in a similar situation from the same court of first instance in GPE and in final decisions of higher courts across the country .

By a judgment of DATE , ORG upheld the applicants ' claim . It established that B. had only submitted to the local agency a list of persons dismissed after DATE and had failed to send a list of persons dismissed before that date , even though they were part of the same collective dismissal process . The court considered that this failure gave rise to inequalities among the people dismissed .

Allowing an appeal by the agency , ORG , by a final decision of DATE ( drafted on DATE ) , reversed the first - instance decision and concluded that the applicants did not meet the requirements for receiving the compensatory payments . For the applicants dismissed DATE and DATE , the appellate court referred to another condition provided by the national legislation , namely that ORG ( FPS ) should have mandated its special representatives on the board of shareholders to proceed with the reorganisation , in particular with the collective dismissal . In the case at issue , the appellate court established that such a mandate did not exist on DATE when the applicants were dismissed and therefore they were not entitled to compensatory payments . For the applicants dismissed DATE , the county court established that they did not meet another condition , namely that they did not prove that they had taken part in the pre - dismissal procedures . It concluded that the applicants did not satisfy these specific conditions and dismissed their claims .

The applicants submitted requests to the Procurator General for leave to lodge an extraordinary appeal against the final decision , invoking , inter alia , the existence of conflicting final decisions concerning other former employees in the same situation as them , namely those dismissed before DATE . Their requests were rejected .

Emergency Ordinance no . CARDINAL/CARDINAL , as modified by Emergency Ordinance no . GPE , provided that persons whose employment contracts were terminated due to collective dismissal procedures were entitled to compensatory payments ranging from CARDINAL to CARDINAL times the average net salary nationwide . On DATE the newly adopted Emergency Ordinance no . CARDINAL changed the method for determining the quantum of the compensatory payments , which since then has ranged from CARDINAL times the average net salary in the specific company .

DATE of Emergency Ordinance no . CARDINAL/CARDINAL obliged the employer company to notify , in writing , the competent agencies of the collective dismissal process , as approved in the restructuring programme , and to provide lists of the staff to be dismissed . Based on those lists , the competent agencies were required to provide pre - dismissal services , including counselling and professional guidance . In order to be eligible for compensatory payments , the persons who were part of a collective dismissal had to take part in these pre - dismissal programmes .

NORP In similar cases , former employees of B. , dismissed before DATE , requested recognition of their right to compensatory payments . Following the agency 's refusal to pay compensation , they lodged complaints with the competent domestic courts . By different final decisions rendered by county courts DATE , their right to compensatory payments was recognised . The reasoning varied : some county courts considered that the condition regarding the special mandate of the ORG was satisfied , others did not even take this special condition into account .

The condition regarding participation in the pre - dismissal procedures was indirectly taken into account into some of the decisions . In those decisions reference was made to the fact that the employer had failed to submit to the competent agencies lists of the staff dismissed before DATE .

Some decisions underline the fact that the collective dismissal took place in different stages and that the persons dismissed before DATE had been deprived of the social protection provided by the compensatory payments , even though the dismissal conditions had been identical and there was no objective reason for such discrimination .

Another group of former employees , who were dismissed DATE and DATE and who lost their case by a final decision of ORG of DATE , submitted a request to the Procurator General for leave to lodge an extraordinary appeal ( recurs în anulare ) in their favour . The latter accepted their request and made a request in this respect to ORG .

By a final decision of DATE ORG allowed the extraordinary appeal and quashed the final decision delivered in that particular case . It concluded that the lack of the special mandate of the FPS ( issued in DATE ) did not affect the right of persons whose employment contracts had been terminated in the framework of a collective dismissal to receive compensatory payments . It further explained that in the event of a contrary interpretation , the effects would be unacceptable because it would create discrimination between persons placed in the same or similar positions . It also added that in the event that the former employees were not involved in the collective pre - dismissal procedures because of the negligence of the employer , they were still entitled to receive compensatory payments .

Subsequent final decisions of ORG of DATE and DATE followed the same approach and recognised the right to compensatory payments for former employees dismissed during the same period of time as the applicants .

LAW ( “ the ORG ” ) in force at the time provided in its LAW that ORG , ex officio or upon request of the minister of justice , could lodge an extraordinary appeal ( “ recurs in anulare ” ) against final judicial decisions . This extraordinary appeal was repealed from domestic law by a Government ordinance published on DATE .

Article CARDINAL of the ORG regulates another type of extraordinary appeal ( “ recurs in interesul legii ” ) . The provisions in force at the time provided that in order to ensure uniform interpretation and application of the law , the Prosecutor General , ex officio or at the request of the minister of justice , could request ORG to deliver a decision concerning a legal issue which had received different solutions in the lower courts . The decision thus delivered could not alter the outcome of cases already decided . Amendments were made in DATE and it was made possible to recognise the right of the managerial boards of the courts of appeal to lodge such a request with ORG and ORG .

Article CARDINAL § CARDINAL of the ORG further provides that a case may be reopened in front of the domestic courts if ORG has found that a specific domestic decision violated fundamental rights or liberties .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms A. Bingöl , Ms PERSON PERSON and Mr A. Timur , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent .

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

On DATE the applicant was arrested .

On DATE ORG remanded him in custody .

On DATE the public prosecutor attached to FAC ORG filed a bill of indictment against the applicant , along with other persons , and charged him with membership of the ORG ( Workers’ ORG ) under LAW of the former LAW .

On DATE ORG convicted the applicant as charged .

On DATE ORG quashed the judgment of the first - instance court in respect of some of the accused , including the applicant , and remitted the case to ORG .

Subsequent to the promulgation of PERSON no . CARDINAL on DATE , which abolished the jurisdiction of ORG , in DATE ORG acquired jurisdiction over the case .

On DATE ORG acquitted the applicant , holding that there was insufficient evidence to convict him .

The applicant claimed that the judgment of CARDINAL DATE was never served on him .

According to the documents submitted by the respondent Government to the ORG , on DATE the authorities attempted to notify the applicant of the judgment of CARDINAL DATE . The applicant could not be found at the address he had given and the authorities were not able to locate his new address despite all efforts .

On DATE the applicant applied to the registry of ORG and obtained a copy of the judgment of CARDINAL DATE .


FERNANDEZ-MOLINA GONZALEZ and OTHERS v. SPAIN

In DATE the applicants along with CARDINAL others sustained severe food poisoning that caused an illness known as “ toxic syndrome ” after consuming denatured rapeseed oil . The applicants are represented by Mr Ergec , PERSON , PERSON and PERSON . .... The facts set out below concern the first applicant . The facts in the cases of the other CARDINAL applicants cases are identical , apart from the claims for compensation , which were made and dealt with individually .

The facts of the case , as presented by the parties , can be summarised as follows .

On DATE a criminal investigation was started into suspected breaches of public - health regulations . All the proceedings concerning the breaches were joined and assigned to LAW , which divided the cases into CARDINAL separate groups of criminal proceedings , depending on whether or not the defendants were civil servants .

The individual complainants were represented in the proceedings by various associations , including ORG ( hereafter “ ANASTO - LEGANES ” ” ) , which was formed on CARDINAL DATE with the object of securing full reparation for all damage sustained by victims of toxic syndrome . The first applicant is the president of that association .

The proceedings began in DATE with a criminal complaint by the public prosecutor ’s office . A large number of complaints by victims and associations of victims , and the results of various police and judicial inquiries , were added to the investigation file . The investigation concerned individuals and companies from the private sector and public authorities and their servants . However , in a decision of DATE , the Audiencia Nacional decided to sever the proceedings against the civil servants . It does not appear from the case file that an appeal was lodged against that decision .

In a judgment of CARDINAL DATE , LAW handed down prison sentences to various defendants for breaches of the public - health regulations , fraud arising out of the sale of denatured rapeseed oil , and professional negligence . In addition to imposing criminal penalties , FAC held that one of the defendants was liable in damages , while the codefendants and CARDINAL undertakings implicated in the distribution of the oil incurred secondary liability .

The amounts due in damages by those held liable were assessed as follows :

“ ( i ) to the heirs of each deceased victim : MONEY ;

( ii ) to persons whose injuries lasted DATE : MONEY ;

( iii ) to persons whose injuries lasted DATE : MONEY ;

( iv ) to persons whose injuries lasted DATE : MONEY ;

( v ) to persons whose injuries lasted DATE : MONEY ;

( vi ) to persons whose injuries lasted DATE , but without disability : MONEY ;

( vii ) to persons suffering from permanent disability preventing them from resuming some of their normal duties : MONEY ;

( viii ) to persons suffering from permanent disability preventing them from resuming any of their normal duties : MONEY ;

( ix ) to persons suffering from permanent disability preventing them from doing any work : MONEY ;

The compensation payable to the heirs of the deceased persons listed as victims in Appendix VII shall be assessed in accordance with the classification of the injuries when the judgment is enforced .

( xi ) ... ORG : MONEY . ”

The Audiencia Nacional added :

“ The stated compensation shall be paid to those entitled with DATE interest at the statutory rate plus CARDINAL points accruing from DATE ( DATE ) until payment is made in full . ”

In the event of any deterioration in the victim ’s health , the compensation was to be adjusted depending on the category into which the victim ’s injuries ultimately fell .

The defendants who were convicted , the private complainants and the public prosecutor ’s office appealed on points of law . In a judgment of CARDINAL DATE , ORG upheld the main parts of the impugned judgment and convicted certain defendants of continuing fraud and offences under ORG and CARDINAL of LAW .

The judgment was not executed , owing to the insolvency of the private individuals and companies who had been ordered to pay damages .

Following the ORG decision of DATE , the central investigating judge no . CARDINAL at the Audiencia Nacional started an investigation in order to determine whether certain public authorities and civil servants had any liability . The public prosecutor ’s office and a number of private complainants intervened in the proceedings , which ended on DATE with a judgment of ORG , which held :

“ Those guilty of contaminating the oil have already been tried in proceedings no . CARDINAL/CARDINAL by LAW [ of ORG ] , and the sole purpose of the present proceedings is to establish whether [ those responsible for the contamination ] were able to commit the offences as a result of negligence on the part of the civil servants concerned ... , it being understood that neither the conduct of the persons who have been convicted nor the consequences of that conduct may be re - examined . ”

CARDINAL defendants accused of causing death by negligence and breaches of public - health regulations were acquitted . The Audiencia Nacional noted that ORG judgment of DATE in proceedings no . CARDINAL/CARDINAL was final . It emphasised that the new proceedings concerned different defendants accused of different offences . All but CARDINAL of the civil servants was acquitted . He was found guilty of negligently causing personal injury and ordered to pay a fine of MONEY ( ESP ) and compensation to the victims equal to PERCENT of the amounts specified in LAW judgment dated DATE in case no . CARDINAL , that is to say :

to persons suffering from serious disability : MONEY . ”

The Second Section added :

“ Each victim ’s condition will be assessed on the basis of updated information from the case files .

Since DATE ’s civil liability is less extensive than that of the persons held liable in the judgment of CARDINAL DATE , he shall not be jointly liable for PERCENT of compensation which they were ordered to pay in the aforementioned judgment .

We must and do order the ORG to pay the compensation due by ORG in the event of his defaulting , less , if applicable , any amounts previously paid by the authorities by way of compensation , aid or grants to persons who have suffered damage . ”

CARDINAL of the CARDINAL judges sitting in the ORG dissented , arguing that the civil servant concerned should have been acquitted .

Appeals to ORG were lodged against that judgment . On DATE , ORG reversed and quashed part of the Audiencia Nacional ’s decision . It overruled the impugned decision on quantum , holding :

ORG also ruled that everyone who had suffered from toxic syndrome , whether or not a party to the proceedings , was entitled to compensation at the relevant rate , as the associations of victims were not acting on behalf of their members , but represented the “ wider interests ” of all the victims , whether or not they were represented .

In a second judgment delivered DATE , ORG found CARDINAL of the defendant civil servants guilty of recklessly causing death and injury . It sentenced them to CARDINAL months’ imprisonment each and held them jointly and severally liable to pay damages at twice the levels ordered by ORG in its judgment of DATE , that is to say , the levels set out in the judgment of CARDINAL DATE . The remaining CARDINAL civil ORG acquittals were upheld . The ORG was ordered , as a civil party with secondary liability , to pay all the sums mentioned , less any amounts it had granted by way of aid , other than amounts for medical , social - security or other similar expenses to which the victims had a statutory entitlement . An order was made on DATE for the rectification of that judgment to confirm that the levels of compensation were those set out in the decision of CARDINAL DATE .

Once ORG judgment had become enforceable , the case was remitted to the First Section of the Audiencia Nacional for execution .

In a decision of CARDINAL DATE the Audiencia Nacional laid down the procedure to be followed by individual victims in order to obtain payment of their compensation .

On DATE the Audiencia Nacional declared the civil servants who had been found liable in damages insolvent and ordered execution of ORG judgment against the ORG as the party with secondary civil liability .

On DATE it was decided that , with the exception of additional family allowance , special grants and housing benefit , all aid paid by the ORG to victims of toxic syndrome between the date of the decision to grant such aid and the date the compensation was paid would be deducted from the amount of compensation payable .

On DATE the Audiencia Nacional directed that the payment process had begun and informed the victims of toxic syndrome that they could “ obtain the standard compensation payment request form and complete related software package to assist them in making their claims from ORG Audiencia Nacional ” .

The standard form issued by ORG did not contain a section allowing claims to be made for default interest . Accordingly , ORG drafted a document claiming default interest at the official rate from CARDINAL DATE , DATE Audiencia Nacional ’s judgment in the first set of proceedings , to the date of actual payment . The document was appended to the first request for execution of the judgment ( which was submitted by the first applicant ) and , relying on the official consumer price index published by ORG , stated that prices had increased by PERCENT since the relevant date .

In a decision of CARDINAL DATE the Audiencia Nacional rejected the first applicant ’s claim for default interest accrued since the DATE judgment and assessed his entitlement to compensation at ESP CARDINAL ( after deducting aid received from the ORG ) . That amount was to bear interest at the rate prescribed in DATE , taken together with section CARDINAL , of ORG , which lays down that the authorities must pay interest at the statutory rate if they fail to make payment within DATE after being served with the relevant judicial decision .

The Audienca Nacional gave the following reasons for its decision :

“ ... As to the payment of interest , it will be noted that , in the final judgment in the present proceedings , the authority , on account of its secondary civil liability , was ordered to pay unliquidated damages . The sum is unliquidated because , taking the amounts specified in the judgment for each category of person affected [ by the food - poisoning ] as the starting point , the victims are required to submit for examination any deductible amounts ... , the classification of their injuries and any changes thereto . Accordingly , as has already been pointed out in what are now final decisions in the enforcement proceedings , everyone concerned must set the claims procedure in motion so that the amounts due to him or her can be calculated . ... Consequently , the payment of interest is only conceivable once the quantum has been calculated , that is to say , once the claims procedure has been completed . Since the debtor is a public authority ... it is necessary to apply section CARDINAL of the General Finance Act ( GFA ) , taken together with section CARDINAL of that Act , and not LAW . ... Section CARDINAL ORG allows the authority DATE in which to make payment , as it provides that if the authority does not pay a creditor of the ORG within DATE after service of the relevant court decision or acknowledgement of the obligation , it is to pay interest at the rate stated in section CARDINAL(CARDINAL ) GFA – that is to say , at the statutory rate on the amount due DATE from the date the creditor makes a written request for performance of the obligation . ”

On DATE the first applicant renewed his request for default interest in a súplica appeal to FAC . He argued that the compensation was a liquidated sum , as FAC had itself established in its judgment of CARDINAL DATE . As to the date from which default interest was to run , the applicant said that ORG had already construed section CARDINAL of the General Finance Act , when read in the light of Article CARDINAL of the Code of Civil Procedure , to mean that the judgment at first instance had to be taken into account .

In a decision of DATE , ORG dismissed the súplica appeal and upheld the previous decision in its entirety . It stressed that the first applicant ’s case concerned secondary civil liability in the context of the procedure for processing the claims for compensation . On DATE the Audiencia Nacional issued an order requiring the authority to pay the sum of ESP CARDINAL .

The first applicant and the applicants whose names appear on the appended list then lodged an amparo appeal with ORG , alleging a violation of ORG DATE and CARDINAL § QUANTITY of the LAW . They said that the manner in which ORG had applied section CARDINAL of the General Finance Act constituted unjustified discriminatory treatment , as ORG had previously held that that provision had to be read in the light of LAW . They also insisted that litigants were entitled to have final court decisions executed strictly in accordance with their terms .

ORG dismissed the appeals in a series of decisions ( its decision in the first applicant ’s case being delivered on DATE ) , in which it held :

“ ... There has been no breach of the rule prohibiting discrimination ( LAW ) . The [ ORG ] judgments relied on by the applicant concerned cases in which the court of first instance decided that the authority had an obligation ( to pay or to reimburse certain sums ) ; that was not the position in the instance case , as it was not until , firstly , the FAC Nacional ’s judgment of CARDINAL DATE and , subsequently , ORG judgment of DATE that it was decided that the authority had secondary liability . Accordingly , to allow interest to run from the date of the Audiencia Nacional ’s judgment ( DATE ) would be tantamount to holding [ the authority ] responsible for delay in complying with a non - existent obligation .

The right recognised in LAW to the effective protection of the courts has not been infringed either , as the [ Audiencia Nacional ’s ] classification of the compensation as unliquidated is an issue of law that is reserved to the ordinary courts as part of the judicial duties vested exclusively in them by LAW , provided that they do not act arbitrarily , irrationally or in manifest breach of a procedural rule , which they have not done ... ”

and :

“ ... The applicant has only raised questions of ordinary law , for which the ordinary courts have exclusive jurisdiction by virtue of LAW judgment no . CARDINAL of CARDINAL DATE ) , provided they do not act arbitrarily , irrationally or in manifest breach of a procedural rule , which they have not done ... ”

and further :

“ ... Firstly , as regards the violation of the right to the effective protection of the courts ( LAW ) , the applicant has only raised questions of ordinary law , for which the ordinary courts have exclusive jurisdiction by virtue of Article CARDINAL § CARDINAL of LAW ( Constitutional Court judgment no . CARDINAL of DATE ) , provided they do not act arbitrarily , irrationally or in manifest breach of a procedural rule , which they have not done ... Secondly , as regards the principle of equality before the law ( LAW ) , ORG judgments relied on by the applicant in support of his allegations relate to cases that can not in any way be assimilated to the instant case ... ”

By DATE some CARDINAL victims of toxic syndrome , that is to say CARDINAL of those affected , had received compensation . The first applicant is CARDINAL of them .

Article CARDINAL § CARDINAL of the LAW provides , that in order to assert their rights and freedoms under LAW , all citizens may make an expedited application to the ordinary courts and , if appropriate , lodge an amparo appeal with ORG .

The right of property proclaimed by LAW is not one of the rights for which an amparo appeal to ORG lies .

Article CARDINAL of the Code of Civil Procedure provides that judgment debts shall bear default interest at the statutory rate plus CARDINAL points from DATE after the judgment was delivered until the debt has been paid in full . Article CARDINAL applies only to liquidated awards . The rule applies to all judicial decisions , although exceptions are made in favour of the ORG under LAW .

Sections CARDINAL and CARDINAL of the General Finance Act , which govern ORG receipts and expenditure , provide that creditors of the ORG shall only be entitled to default interest at the statutory rate if the authority concerned fails to discharge the relevant obligation within DATE after service of the judicial decision imposing it . The sections do not , however , indicate whether the relevant decision for this purpose is the decision of the court of first instance or of the appellate court . LAW states that the authority has DATE in which to pay its debt and that a failure to pay within DATE after service of the relevant judicial decision or acknowledgement of debt will entitle the creditor to interest at the rate stated in section CARDINAL(CARDINAL ) of the LAW , that is to say statutory interest on the amount due from the date of a written request by the creditor for performance of the obligation .


Remainder inadmissible;Violation of Art. 6-1;Costs and expenses partial award - Convention proceedings

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

The applicant was born in DATE and , at the time of the introduction of his application , was serving a sentence of life imprisonment in GPE .

In DATE the applicant was living with his family in GPE , where his father was an ORG Corporal serving in ORG of FAC . On DATE the applicant was charged with the murder of a young civilian woman who had been working in ORG and whose body had been found in woods near to the army base .

As a family member residing with a member of ORG , the applicant was subject to military law ( see paragraph CARDINAL below ) . The NORP authorities waived jurisdiction pursuant to ORG DATE ( see paragraph CARDINAL below ) .

On DATE the Commander of ORG was appointed to act as the applicant ’s Commanding Officer . The latter decided to refer the case to ORG with a view to the applicant being tried by general court - martial . ORG submitted the case for trial by general court - martial , and the court - martial was convened by the Commanding Officer ( henceforth , “ the Convening Officer ” ) . The applicant obtained military legal aid on DATE .

In the meantime , the applicant ’s father was posted to GPE and returned there on DATE . Despite his father ’s return , the applicant remained subject to military law as the proceedings had already commenced ( see paragraph CARDINAL below ) . The applicant returned to GPE in DATE where he was detained . His father was discharged from the army in DATE .

The applicant was returned to GPE in time for his court - martial which commenced on DATE . The court - martial board was composed of a President , who was not a permanent president , and CARDINAL ordinary members . CARDINAL of the members were senior officers , all of whom were subordinate in rank to the Convening Officer and the President and CARDINAL of whom was within the Convening Officer ’s chain of command . CARDINAL members were civilian civil servants , who came from GPE solely for the purpose of the trial , and were placed under LAW command while in GPE , although they were not in his reporting chain .

The applicant ’s representative submitted , inter alia , that the trial of a young civilian by court - martial was inherently unfair and oppressive and thus an abuse of process . The atmosphere in a military court would be very different from that of a civilian court and the applicant would not do himself justice . In particular , it was unfair and oppressive that he should be returned to stand trial in GPE after he had spent DATE in detention in GPE and after his father had ceased to be subject to military law . Lastly , if tried by jury , a majority of CARDINAL to CARDINAL votes would be necessary to convict him , whereas a simple majority vote would suffice in a trial by court - martial .

These submissions were considered by the Vice - Judge Advocate General and were rejected , as was an application for an adjournment to allow proceedings for judicial review to commence . The trial ended with the applicant ’s conviction on CARDINAL DATE . In accordance with the provisions of LAW CARDINAL , the verdict of the court - martial was confirmed by a Confirming Officer ( see paragraph CARDINAL below ) .

The applicant appealed to ORG , which had the power to quash the conviction if it considered it unsafe . The Lord Chief Justice , Lord PERSON of PERSON , giving judgment on DATE , held , dismissing the appeal :

“ ... We have some considerable sympathy with the appellant ’s complaint . With the benefit of hindsight , it seems plain that the trial could have been conducted in GPE without undue difficulty . It would in our view have been preferable if this young appellant , whose subjection to military law was purely vicarious and involuntary , had been tried here with all the procedural safeguards which procedure in the ordinary criminal courts affords . We can not , however , stigmatise these proceedings as abusive . They were strictly in accordance with a procedure prescribed by ORG to apply in such cases . There was not , as is accepted , any attempt to over reach or oppress or prejudice the appellant . He had all the safeguards which a defendant in any court - martial is entitled to enjoy . Steps were taken to ensure that all members of the tribunal save CARDINAL were not under the command of the convening officer , and also to ensure that the convening officer and the confirming officer were not the same person . Had the appellant been held in GPE to await trial , as he could have been , his claim to trial in GPE would have appeared weaker . Whether or not it proved necessary in the event to adduce the oral evidence of NORP factual witnesses , the greater availability of such witnesses as a trial in GPE was a legitimate reason for favouring trial there .

We are satisfied that these proceedings were not an abuse of process . ”

The appeal court certified a question of law for ORG as to whether proceedings conducted in accordance with LAW could be considered abusive . On DATE ORG granted leave to appeal . Having heard the applicant ’s legal representatives , on DATE ORG unanimously dismissed the appeal . Lords PERSON of GPE and Hope of PERSON expressed the view that at first sight the decision to prosecute the applicant — a civilian aged DATE at the time of the murder — by court - martial had been inappropriate . However , as Lord Hope explained :

“ It is not difficult to understand the utility of [ section CARDINAL of the Army Act DATE : see paragraph CARDINAL below ] , in view of the greatly increased opportunities which were by then available for families and other civilian personnel to accompany the forces when serving overseas . Had the law not been changed in this respect , civilians and followers would have had to have been brought to trial in the local civil courts in the language and according to the procedures in use in those courts and , if sentenced to imprisonment , to serve the sentence in a local prison . ...

Fundamental to the appellant ’s argument in the present case is the proposition that the purpose of [ the extension of jurisdiction in section CARDINAL of LAW : see paragraph CARDINAL below ] was to extend to murders committed abroad the right of every person in this country who is accused of murder to have his or her guilt declared by means of a jury trial . ... It seems to me that another , and more likely , explanation is that the legislation was enacted to ensure that the grave offences with which it deals should not go unpunished when committed abroad by a NORP citizen . ...

In view of what I have said above I do not believe that the proceedings by way of court - martial in this case can be said in themselves to have been an abuse of process . ... The question to which I now turn is whether there is any basis in the information which is available to us for describing any of the decisions taken by those in authority at the various stages in this case as so unfair and wrong as to show that the conviction in this case was unsafe . ... ”

Lord Hope went on to examine the factors which would have had to have been taken into account when considering whether to prosecute the applicant by court - martial in GPE or by jury trial in GPE :

“ The timing of any consideration of the matter by ORG would , in my view , have been of critical importance to a decision as to whether there was any unfairness in this case which might be said to render the conviction unsafe . It can not be assumed that the Director would have been willing to take proceedings in GPE without knowing more about the factors which he would have wished to take into account . CARDINAL obvious factor , I would have thought , was the availability of witnesses . In his letter of DATE to the Attorney General ORG had stated that many of the witnesses were NORP and that they could not be forced to attend a trial in GPE . Further details were provided at the request of the Attorney General in a letter by ORG dated DATE . In this letter it is stated that there were CARDINAL NORP witnesses who could be divided into CARDINAL categories — those who saw the appellant in the woods near the scene of the murder , those concerned with the finding of the body and police and forensic experts . The defence had not yet indicated what evidence would be agreed . The Director thought that , while some of their evidence might be agreed , it was unlikely that this would include the police and forensic experts . He believed that they were the witnesses who would be most unlikely to cause difficulties if asked to travel to GPE to give evidence . He added that CARDINAL of the forensic scientists who was responsible for examining secretions and bloodstains — a matter which was of crucial importance in this case as there were no eyewitnesses — was being difficult to deal with and would only attend meetings if they were arranged through the NORP public prosecutor in the nearest large town . He explained that these witnesses were NORP because the police investigation was commenced by the NORP civil police as it was initially assumed that a NORP civilian had committed the crime . ...

I have not forgotten that Lord PERSON of PERSON [ see paragraph CARDINAL above ] said in his judgment that it was clear , with the benefit of hindsight , that the trial could have been conducted in GPE without due difficulty . But ORG would have had to have taken his decision well before the trial , in view of the arrangements which would have had to have been made for the appellant to be transferred into the hands of the civil authorities in GPE and for the attendance of the witnesses . In the event , as the respondent has recorded in his written case , no agreement was reached , despite several written requests and reminders , about any of the evidence until the commencement of the trial when the evidence of the witnesses was agreed piecemeal during DATE . This account of what happened strongly suggests that at the stage when ORG would have had to have taken his decision he would have had to assume that the important evidence of the NORP witnesses would not be agreed before the trial and that the attendance of the NORP witnesses would be necessary . ...

Conclusion

... The proceedings were conducted within the rules laid down by ORG . There is no sound basis for thinking that , at the time when a decision about this would have had to have been taken , a prosecution in the NORP courts within a reasonable time would have been seen to be practicable . The alternatives lay between taking proceedings by way of court - martial in GPE , leaving the matter in the hands of the NORP public prosecutor or taking no proceedings at all . ... ”

The DATE agreement , as supplemented by LAW of DATE ( subsequently amended in DATE , DATE and DATE ) provides in Article GPE ) :

“ CARDINAL . Subject to the provisions of this Article ,

the military authorities of the sending State shall have the right to exercise within the receiving ORG all criminal and disciplinary jurisdiction conferred on them by the law of the sending ORG over all persons subject to the military law of that ORG ;

the authorities of the receiving ORG shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving ORG and punishable by the law of that ORG .

Article VII(CARDINAL)(a ) provides :

“ CARDINAL . In cases where the right to exercise jurisdiction is concurrent , the following rules shall apply :

( a ) The military authorities of the sending ORG shall have the primary right to exercise jurisdiction over a member of a force or a civilian component in relation to

( i ) offences solely against property or security of that ORG , or offences solely against the person or property of another member of the force or civilian component of that state or of a dependent ;

( ii ) offences arising out of an act or omission done in the performance of official duty . ”

Section CARDINAL of the CARDINAL Act provides :

“ ( CARDINAL ) Any person subject to military law who commits a civil offence , whether in GPE or elsewhere , shall be guilty of an offence against this section . ...

A person shall not be charged with an offence against this section committed in GPE if the corresponding civil offence is ... murder . ”

Section CARDINAL(CARDINAL ) of the LAW states :

“ Subject to the modifications hereinafter specified , Part II of this Act shall at all times apply to a person of any description specified in the Fifth Schedule to this LAW who is within the limits of the command of any officer commanding a body of the regular forces outside GPE , and is not subject to military law ... apart from this section ... as the said Part II applies to persons subject to military law ... ”

The Act identifies in its Fifth Schedule the civilians outside GPE who are subject to Part II of the Act when not on active service . They include , at paragraph CARDINAL :

“ Persons forming part of the family of members of any of Her Majesty ’s Naval , Military , or ORG and residing with them or about to reside or departing after residing with them . ”

The trial of those who have ceased to be subject to military law is expressly provided for by section CARDINAL of the Act :

“ Subject to the provisions of the next following section , where an offence under LAW triable by ORG has been committed ... by any person while subject to military law , then in relation to that offence he shall be treated , for the purposes of the provisions of the LAW relating to ... trial and punishment by LAW ... as continuing subject to military law and notwithstanding his ceasing at any time to be subject thereto . ”

Since LAW DATE , where a civilian defendant is to be tried , civilian ORG servants can be detailed as members of the court - martial . In practice , most criminal offences allegedly committed by a civilian dependent would be tried by ORG ( similar to a ORG ) , with trial by court - martial reserved for the most serious offences .

The law and procedures which applied generally to the applicant ’s court - martial were contained in the Army Act DATE , LAW ) DATE and LAW ( for which , see PERSON v. GPE , judgment of DATE , Reports of Judgments and ORG , § § DATE ) . From DATE ( after the conclusion of the applicant ’s court - martial ) LAW came into force which modified certain provisions of LAW DATE ( see , generally , PERSON the GPE [ ORG ] , no . CARDINAL , ORG , ORG CARDINAL-XII ; PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINAL-XII ) .

The basic rule of the common law is that the jurisdiction of the criminal courts in GPE is confined to crimes committed within the territory of each court . An exception is provided by LAW , which gives jurisdiction to NORP courts in respect of alleged murders and manslaughters committed by NORP citizens anywhere in the world .


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

The applicants , PERSON , PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively .

The second applicant died on DATE . The other CARDINAL applicants are her sisters and only heirs . The first applicant also died on DATE . However , her daughter and only heir , PERSON , expressed her wish to pursue the application . For practical reasons , PERSON PERSON and PERSON will continue to be referred to as “ applicants ” in this judgment , although their heirs are now to be regarded as such ( see PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ECHR DATE ) .

The third applicant lives in GPE . After the death of the first CARDINAL applicants , their heir was represented by the third applicant . ORG ( “ the Government ” ) were represented by their Agent , Mr Răzvan - Horaţiu Radu .

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

The applicants inherited from their parents a house with annexes and QUANTITY . m of appurtenant land situated at QUANTITY , PERSON . On that land , at no . CARDINAL , the first applicant and her husband built a new house in which they continued to live .

In DATE the applicants sold the old house with annexes and CARDINAL sq . m of appurtenant land inherited from their parents to ORG The sale contract stipulated that , according to the applicable law , the land passed into ORG ownership . The applicants did not receive any compensation . ORG was authorised to use QUANTITY . m of it while the buildings existed .

On DATE ORG gave an enforceable decision allowing an action by the applicants for recovery of possession of QUANTITY . m of land against ORG . The court acknowledged their right of property over the land situated at CARDINAL , FAC , PERSON , and ordered the town council to respect the applicants’ right of property .

On DATE the bailiff certified in an official record that the applicants could take possession of the CARDINAL sq . m of land . According to the documents in the file , that land included the QUANTITY . m mentioned in the DATE sale contract and seized by the ORG .

Although there had been judicial recognition of the applicants’ right of property over the QUANTITY . m plot of land , the local commission in PERSON for the application of PERSON no . CARDINAL/CARDINAL ( “ the local commission ” ) authorised them to recover possession of QUANTITY . m of land .

On DATE the county commission in GPE for the application of Law no . CARDINAL/CARDINAL ( “ the county commission ” ) rejected a complaint brought by the applicants concerning the decision of the local commission . It further authorised ORG to recover possession of QUANTITY m of land .

On DATE ORG gave an enforceable decision upholding the ORG complaint concerning the decision of the county commission and authorised them to recover possession of the CARDINAL sq . m of land in GPE . The court considered that , as certified by the judgment of CARDINAL DATE , the applicants had a right of property over that land in their capacity as their GPE heirs .

On DATE ORG gave a final decision allowing a complaint by ORG in respect of the decision of the county commission and acknowledged her right to acquire title to QUANTITY m of land .

On DATE the ORG informed ORG that the local commission was unable to enforce the judgment in her favour as there was another judgment of CARDINAL DATE that had certified the right of property of the former owners of ORG ’s house over part of the QUANTITY . m of land . Notice of this situation had also been given to ORG of First Instance .

On DATE ORG dismissed as groundless a request by the applicants for revision of contradictory final decisions by which they sought the annulment of the judgment of DATE . The court noted that the legal requirements for this action had not been met , as those decisions had not been given in respect of the same parties or with regard to the same object or the same procedural capacity .

On DATE ORG brought an administrative action against the local commission seeking to take possession of the QUANTITY . m plot of land . She also referred to the judgment of CARDINAL DATE and eventually agreed to take possession of QUANTITY . m of land , as this was the portion of land the applicants had allegedly allowed her to use when she bought the house .

On DATE ORG allowed the action and ordered the local commission to enable ORG to take possession of QUANTITY . m of land , as provided by the judgment of DATE . The court also noted that neither the judgment of CARDINAL DATE nor the judgment of CARDINAL DATE had been modified . A request by the applicants to intervene in the proceedings was dismissed .

That judgment became final . In DATE ORG was authorised to take possession of QUANTITY . m of land and obtained a property title .

On DATE the applicants brought an administrative action against the local and county commissions , seeking to take possession of the CARDINAL sq . m plot of land .

On DATE ORG allowed the action in part and ordered the local commission to enable the applicants to take possession of QUANTITY . m of land situated at CARDINAL Ion Antonescu Street ( formerly QUANTITY Street ) , representing the difference between the land already given to ORG and the CARDINAL sq . m plot of land in respect of which the applicants had title . That judgment became final .

On DATE the applicants brought civil proceedings against ORG seeking to recover possession of QUANTITY . m of land .

On DATE ORG , after comparing the property titles , dismissed the applicants’ action on the ground that their title derived from civil proceedings and could be asserted only against the parties , whereas ORG had title under PERSON no . CARDINAL/CARDINAL . The court found , inter alia , that ORG had owned the QUANTITY . m plot since DATE and that the price stipulated in the sale contract would presumably have included the CARDINAL sq . m plot , not merely QUANTITY . m , because a seller had regard to what came out of his patrimony rather than to what entered into the buyer ’s . It also considered that ORG had not been a party to the proceedings ending with the judgment of CARDINAL DATE and that therefore that judgment was not enforceable against her .

That judgment became final .

On DATE the applicants requested the town council to annul the property title issued to ORG and to award them title to the CARDINAL sq . m of land . The town council considered that there were no legal conditions to justify proceedings for the annulment of ORG ’s title and subsequently dismissed the ORG request to authorise them to recover possession of the QUANTITY . m plot of land , on the ground that that land was not under the town council ’s administration .

On DATE the applicants made a request under PERSON no . CARDINAL governing immovable property wrongfully seized by the ORG , seeking restitution in kind of the QUANTITY . m plot of land .

On DATE the town council rejected their request on the grounds that , on the one hand , the CARDINAL sq . m plot of land had been conveyed to the buyer of the house under PERSON no . CARDINAL/CARDINAL and , on the other hand , the QUANTITY . m plot of land had not been seized by the ORG and was in the ORG ownership .

The applicants contested that decision before the courts and the proceedings are pending .

On DATE the third applicant , together with the heir of the first CARDINAL applicants , made a request under PERSON no . CARDINAL seeking to recover the CARDINAL sq . m of land .

On DATE the county commission dismissed their request on the ground that it had the same object as the request brought under Law no . CARDINAL .

On DATE ORG Instance dismissed an action brought by the third applicant , together with the heir of the first CARDINAL applicants , complaining about the decision of DATE and seeking to recover the land and to have ORG ’s property title declared null and void . The court allowed pleas of inadmissibility raised by the defendant , considering that the principle of res judicata prevailed as the judgment of CARDINAL DATE had recognised ORG ’s right of property over the CARDINAL sq . m plot of land referred to in the DATE sale contract . It held that the disputed land therefore belonged to ORG The court also mentioned , inter alia , that following that sale the difference of CARDINAL sq . m had remained in the applicants’ ownership . That judgment became final .

So far the applicants have not received any title deed .

On DATE the applicants informed the ORG that the town council was allowing them to use QUANTITY m of their land and that they were hoping to be provided with a property title accordingly .

On DATE and QUANTITY DATE the authorities certified that the applicants were paying taxes on the QUANTITY . m plot of land .


Violations of Art. 3;Violation of Art. 5-3;Violations of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award

Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

On DATE a preliminary investigation was opened against the applicant for robbery . On DATE , the applicant was charged with the offence and remanded in custody upon a decision of an investigator which was confirmed by the public prosecutor 's office . It was alleged that the applicant , together with another individual , had robbed an individual of CARDINAL old NORP levs ( ORG ; MONEY ( ORG ) ) and in the process had used force and rendered the victim unconscious . In ordering that the applicant be remanded in custody the investigator referred to , inter alia , the personality of the detainee , the gravity of the offence and , in general terms , the likelihood that he might abscond or re - offend .

The applicant filed an application for release on DATE , which was dismissed by ORG on DATE . The court found , inter alia , that the applicant was charged with a serious intentional offence , which warranted mandatory detention , and that it was likely that he might commit offences against some of the witnesses , thereby obstructing the investigation . In conclusion , no evidence warranting an exception to the requirement of mandatory detention was found to exist .

On DATE the applicant filed another application for release arguing , inter alia , that in the course of the preliminary investigation it had been established that the amount which he had allegedly taken from the victim had been only BGL CARDINAL ( approximately ORG CARDINAL ) because the latter had been robbed on CARDINAL occasion on DATE in question .

The applicant 's application for release was dismissed by ORG on DATE , which found , inter alia , that the applicant was charged with a serious intentional offence , which warranted mandatory detention , that he might obstruct the investigation and that due to his lack of income he was likely to re - offend . In conclusion , no evidence warranting an exception to the requirement of mandatory detention was found to exist .

On DATE the applicant filed his third application for release claiming , inter alia , that there was no evidence that he would abscond , re - offend or obstruct the investigation , that he suffered from jaundice and that his health was deteriorating as a result of his detention .

NORP The applicant 's application for release was dismissed by ORG on DATE , which found , inter alia , that the applicant had been charged with a serious intentional offence , which warranted mandatory detention , that he was in good health and that there were indications that he might commit offences against some of the witnesses , thereby obstructing the investigation . In conclusion , no evidence was established to exist warranting an exception to the requirement of mandatory detention .

The applicant contended that the charges against him were amended on DATE , which the Government did not challenge .

The preliminary investigation against the applicant was partially terminated on DATE . The only outstanding charge against him concerned common robbery of ORG CARDINAL ( approximately ORG CARDINAL ) .

The applicant filed his fourth application for release on DATE , which was examined by ORG on DATE . The court found in favour of the applicant and released him on bail of CARDINAL new NORP levs ( approximately ORG CARDINAL ) . It found , inter alia , that the applicant had no criminal record and had good character references , and that the preliminary investigation had already been completed .

The applicant was released on DATE , DATE .

The preliminary investigation against the applicant was further partially terminated on DATE as a result of its findings pertaining to the amount and currency of the stolen money . The only outstanding charge against the applicant concerned common robbery of MONEY ( approximately ORG CARDINAL,CARDINAL ) .

An indictment against the applicant was filed with ORG on an undetermined date .

In a judgment of an unspecified date ORG acquitted the applicant . That judgment was subsequently upheld , also on an unspecified date , by ORG .

DATE and DATE the applicant was detained at ORG detention facility . From DATE to CARDINAL DATE he was detained at ORG .

NORP The applicant contended , in respect of both detention facilities , that there had been ( a ) insufficient oxygen in the cells ; ( b ) inadequate hygiene , the use of a bucket for the sanitary needs of the detainees and the presence of parasites ( fleas and wood worms ) , skin infections ( scabies ) and rodents ( mice and rats ) ; ( c ) insufficient natural light ; ( d ) no special recreational area ; ( e ) unhealthy food ; ( f ) no access to literature , newspapers , magazines , radio or television ; ( g ) no possibility for the applicant to meet with his attorney in private at his initiative ; and ( h ) no possibility to maintain active correspondence .

The applicant 's contentions in respect of the conditions of detention at the above facilities are corroborated by the signed declarations of CARDINAL other detainees , Mr PERSON and PERSON .

The relevant provisions of LAW ( “ the ORG ” ) and the NORP courts ' practice before DATE are summarised in the ORG 's judgments in several similar cases ( see , among others , PERSON GPE [ ORG ] , no . ORG , § § CARDINAL , ORG CARDINAL-II , PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINAL ( extracts ) ) .

On the basis of the relevant law before DATE , when ruling on applications for release of a person charged with having committed a “ serious ” offence , the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person 's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise ( see decisions of the domestic authorities criticised by ORG in the cases of NORP and PERSON , both cited above , and PERSON v. GPE , no . PERSON , CARDINAL DATE ) .

The State and Municipalities Responsibility for Damage Act DATE ( the “ ORG ” : renamed in DATE ) provided at the relevant time that the ORG was liable for damage caused to private persons by ( a ) the illegal orders , actions or omissions of government bodies and officials acting within the scope of , or in connection with , their administrative duties ; and ( b ) the organs of the investigation , the prosecution and the courts for unlawful pretrial detention , if the detention order has been set aside for lack of lawful grounds ( sections CARDINAL - CARDINAL ) .

In respect of the regime of detention and conditions of detention , the relevant domestic law and practice under sections CARDINAL and CARDINAL of the ORG has been summarised in the cases of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .

The ORG visited GPE in DATE , DATE , DATE , DATE and DATE . All but its most recent visit report have since been made public .

NORP ORG detention facility and ORG were visited in DATE .

The ORG found that most , albeit not all , of the investigation service detention facilities were overcrowded . With the exception of CARDINAL detention facility where conditions were slightly better , the conditions were as follows : cells did not have access to natural light ; the artificial lighting was too weak to read by and was left on permanently ; ventilation was inadequate ; the cleanliness of the bedding and the cells as a whole left much to be desired ; detainees could access a sanitary facility twice a day ( morning and evening ) for TIME and could take a DATE shower ; outside of the CARDINAL daily visits to the toilets , detainees had to satisfy the needs of nature in buckets inside the cells ; although according to the establishments ' internal regulations detainees were entitled to a “ DATE walk ” of TIME , it was often reduced to TIME or not allowed at all ; no other form of out - of - cell activity was provided to persons detained .

The ORG further noted that food was of poor quality and in insufficient quantity . In particular , the DATE 's “ hot meal ” generally consisted of a watery soup ( often lukewarm ) and inadequate quantities of bread . At the other meals , detainees only received bread and a little cheese or halva . Meat and fruit were rarely included on the menu . Detainees had to eat from bowls without cutlery – not even a spoon was provided .

The ORG also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that , as a result , detainees ' contacts with the outside world were very limited . There was no radio or television .

The ORG concluded that the NORP authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “ almost without exception , the conditions in the investigation service detention facilities visited could fairly be described as inhuman and degrading ” . In reaction , the NORP authorities agreed that the ORG delegation 's assessment had been “ objective and correctly presented ” but indicated that the options for improvement were limited by the country 's difficult financial circumstances .

NORP In DATE the ORG recommended to the NORP authorities , inter alia , that sufficient food and drink and safe eating utensils be provided , that mattresses and blankets be cleaned regularly , that detainees be provided with personal hygiene products ( soap , toothpaste , etc . ) , that custodial staff be instructed that detainees should be allowed to leave their cells during DATE for the purpose of using a toilet facility unless overriding security considerations required otherwise , that the regulation providing for TIME exercise per day be fully respected in practice , that cell lighting and ventilation be improved , that the regime of family visits be revised and that pre - trial detainees be more often transferred to prison even before the preliminary investigation was completed . The possibility of offering detainees TIME outdoor exercise per day was to be examined as a matter of urgency .

The ORG established that ORG detention facility had CARDINAL cells , situated in the basement , and at the time of the visit accommodated QUANTITY detainees , including QUANTITY women in a separate cell .

Six cells measuring QUANTITY were designed to accommodate CARDINAL detainees ; the other CARDINAL , intended for CARDINAL occupants , measured CARDINAL - and - QUANTITY . This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the ORG . However , all the remaining shortcomings observed in the other investigation service detention facilities – dirty and tattered bedding , no access to natural light , absence of activities , limited access to sanitary facilities , etc . – also applied there . Even the TIME exercise rule , provided for in the internal regulations and actually posted on cell doors , was not observed .

In this report the ORG found , inter alia , that the prison was seriously overcrowded and that prisoners were obliged to spend most of DATE in their dormitories , mostly confined to their beds because of lack of space . It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities .

The ORG noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements .

In most investigation detention facilities visited in DATE , with the exception of a newly opened detention facility in GPE , conditions of detention were generally the same as those observed during the ORG 's DATE visit , as regards poor hygiene , overcrowding , problematic access to toilet / shower facilities and a total absence of outdoor exercise and outofcell activities . In some places , the situation had even deteriorated .

In ORG detention facility , as well as in CARDINAL other places , detainees “ had to eat with their fingers , not having been provided with appropriate cutlery ” .

During DATE visit some improvements were noted in the country 's investigation service detention facilities , severely criticised in previous reports . However , a great deal remained to be done : most detainees continued to spend DATE on end locked up in overcrowded cells TIME a day .

Concerning prisons , the ORG drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates .


NORP The applicant , Mr PERSON , is an NORP national who lives in PERSON . He is represented before the ORG by Mr PERSON , a lawyer practising in Rijsbergen .

GPE on DATE and requested asylum . In the course of interviews held with immigration officials , he stated that he had been born on DATE . In DATE or DATE he had been taken away from his parents by soldiers of ORG , who had taken him to a military base where he had stayed for DATE and where he had received education . He had not been allowed to leave the LOC . During DATE of his stay at the military base , he had been trained to become a soldier . After having heard that he had to fight against troops of ORG for ORG ( “ ORG ” ) he had managed to escape the base with the help of his uncle , who had also been stationed there .

During the first interview held with the immigration authorities the applicant consented to cooperate in an age - verification examination . This radiographic examination was performed on DATE and disclosed that the applicant was DATE and must thus have been born in DATE rather than in DATE .

On DATE the applicant 's asylum request was rejected by the Deputy Minister of ORG ( staatssecretaris PERSON ) , who found that the applicant 's account could not be considered credible . The applicant lodged appeals , but eventually to no avail . After ORG ( rechtbank ) of GPE had quashed the rejection of the asylum request CARDINAL consecutive times for formal reasons or because it lacked adequate reasoning , the immigration authorities again refused to grant the applicant a residence permit for the purpose of asylum on DATE . The subsequent appeal of the applicant was rejected by ORG of The Hague , sitting in GPE , on DATE . ORG of ORG ( GPE bestuursrechtspraak PERSON , “ the NORP ” ) upheld the judgment of ORG on DATE . No further appeal lay against this decision .

On DATE the applicant applied for a residence permit “ at the discretion of the Deputy Minister ” ( conform beschikking staatssecretaris ) , arguing that he had been residing in the GPE for DATE , during which period he had become integrated into NORP society and had developed personal , social and economic ties as a result of the course in electrical engineering he had been following , his membership of a football club , and his adherence to the GPE 's Witnesses .

The request was denied by the Deputy Minister on DATE for the reason that the applicant did not hold a provisional residence visa ( machtiging tot voorlopig verblijf ) , which was to be applied for at a representation of the GPE in the country of origin and which is a prerequisite for the grant of a residence permit for purposes not related to asylum .

NORP The applicant filed an objection ( bezwaar ) against this decision , arguing that he ought to be exempted from the visa requirement . The Deputy Minister dismissed the objection on DATE , after which the applicant lodged an appeal with ORG of The Hague , sitting in GPE .

NORP In order to be able to await the outcome of the objection and , subsequently , the appeal proceedings in the GPE , the applicant also applied for a provisional measure ( voorlopige voorziening ) . By judgment of DATE , the provisional - measures judge ( voorzieningenrechter ) of ORG of GPE , sitting in GPE , quashed the Deputy Minister 's decision on the objection for lacking adequate reasoning . However , the judge upheld the legal consequences and , at the same time , rejected the request for a provisional measure . The provisional - measures judge reiterated that the ratio of the visa requirement for obtaining a residence permit for purposes not related to asylum lay in preventing the national authorities , prior to a decision on a person 's request for admission having been taken , from being confronted with a fait accompli as a result of that person 's presence in the GPE . Furthermore , the provisional - measures judge considered that the authorities were not under a positive obligation to exempt the applicant from the visa requirement , as the fact that the applicant had been allowed to reside in the GPE for DATE pending the asylum proceedings could not be considered a special circumstance on the basis of which he should be exempted from the visa requirement . No other circumstances had been submitted justifying the conclusion that the decision not to exempt the applicant from the visa requirement constituted an exceptional hardship ( onbillijkheid van overwegende ORG ) and neither had any such circumstances appeared . The provisional - measures judge added that since the obligation to leave the GPE in order to apply for a visa was in principle only temporary in nature , it was only in exceptional cases that the refusal to exempt an alien from the visa requirement would amount to an unjustified interference with that alien 's right to respect for private life .

On DATE the ORG upheld the judgment of the provisional - measures judge . No further appeal lay against this decision . On DATE , the judgment of the ORG was sent to the applicant pursuant to LAW ( PERSON ) .


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

The applicants were born in DATE and DATE respectively and live in GPE , GPE .

On DATE the applicants brought an action in trespass against their neighbours before ORG . The court held CARDINAL hearings between DATE and DATE and obtained an expert opinion . On DATE the court partly accepted the applicants ' claims .

On appeal , on CARDINAL DATE the Borsod - Abaúj - Zemplén County Regional Court gave a partial decision . It upheld part of the first - instance decision , but quashed the remainder and remitted the case to ORG . It appears that the applicants ' repeated efforts to have ORG decision enforced were to no avail .

In the resumed proceedings before ORG , hearings took place on DATE , DATE , DATE , DATE , DATE and DATE . On CARDINAL DATE ORG ordered that the proceedings be stayed under section CARDINAL § CARDINAL ( b ) of the Code on Civil Procedure because the applicants failed to appear at the hearing scheduled for DATE .

On DATE the applicants requested that the proceedings be continued .

Meanwhile , on DATE the applicants filed a petition for the review by ORG of the partial decision of DATE .

ORG appointed a legal - aid lawyer , who subsequently had to be replaced twice at the applicants ' request .

On DATE ORG eventually rejected the petition as inadmissible , without examining it on the merits , since the applicants had , despite warning , failed to contact the legal - aid lawyer and were therefore not properly represented before ORG .

In the pending proceedings before ORG , the applicants were repeatedly requested to clarify their claims at the hearings of CARDINAL and CARDINAL DATE .

At the applicants ' request , on DATE ORG appointed a legal - aid lawyer .

NORP In its order of DATE ORG discontinued the proceedings in respect of the pending claims . On appeal , on DATE the FAC Regional Court quashed the first - instance order and remitted the file to ORG .

In the resumed proceedings , the applicants requested ORG to hold a hearing in their absence because they felt that their presence at the previous hearings had been useless .

At the hearing on DATE ORG dismissed the applicants ' claims . In the absence of an appeal , this decision became final on DATE .

In DATE the representative of the building , in which the applicants lived , brought an action against them claiming overdue charges .

On DATE ORG partly accepted the plaintiff 's claims . On DATE ORG dismissed the applicants ' appeal . On DATE ORG review bench refused to grant leave to appeal .

In similar proceedings , on DATE ORG partly accepted some further claims for overdue charges . On DATE ORG dismissed the applicants ' appeal .


Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture)

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

The applicants are :

( CARDINAL ) PERSON , born in DATE ;

( CARDINAL ) PERSON GPE , born in DATE ;

( CARDINAL ) Mr PERSON , born in DATE ; and

( CARDINAL ) Mr PERSON , born in DATE .

They live in the village of ORG , in GPE .

The first applicant is the mother of Mr PERSON , Mr PERSON and Mr PERSON , who was born in DATE . PERSON was the second applicant 's husband ; they are the parents of the third and fourth applicants .

On DATE the first applicant and her sons , PERSON and PERSON , were working in a field outside the village of ORG . At some point they noticed a helicopter flying in circles above them .

At TIME they rode home in a ZIL-CARDINAL lorry ; PERSON was driving . When they were within QUANTITY of the village of ORG , their vehicle came under heavy gunfire . Apparently the shots were fired from machine guns and came from the nearby forest . The first applicant was wounded in the back , neck and head . PERSON lost control of the lorry , which crashed into a roadside tree . The PERSON brothers took the first applicant , unconscious , out of the vehicle . Then PERSON ran to the village for help ; PERSON stayed with his mother . At some point the lorry exploded . Then the gunfire ceased .

TIME PERSON , accompanied by PERSON , policemen and fellow villagers , arrived at the scene of the incident to find the first applicant lying on the ground and no trace of PERSON . The first applicant was then transported to hospital ; CARDINAL bullets were extracted from her body .

Having heard about PERSON disappearance , the villagers started searching for him . At TIME on DATE CARDINAL of them , Mr NORP and PERSON , met in a forest a group of CARDINAL armed men speaking unaccented NORP . The armed men forced the CARDINAL villagers to the ground and questioned them . Then they contacted someone via a portable radio transmitter , ordered the villagers to lie still for TIME and left .

In TIME of DATE a group of NORP servicemen , under the command of an officer with the rank of major - general , arrived at the scene of the incident . The major - general suggested that the PERSON had been attacked by unknown NORP insurgents and denied any possible involvement of NORP military personnel .

At TIME on DATE PERSON dead body , with gunshot wounds and bruises , was found QUANTITY from the scene of the incident and QUANTITY from the place where Mr NORP and PERSON had met the armed men the night before . The corpse was partly covered with soil .

At TIME on DATE unidentified persons were hiding in the forest on the left side of the road leading from the village of ORG at a distance of QUANTITY from the village of ORG . They fired from machine guns at the ZIL-CARDINAL lorry in which the first applicant , PERSON and PERSON were travelling . As a result of the shooting the first applicant suffered injuries to her neck and back , PERSON received tangential soft - tissue wounds and PERSON went missing .

On DATE the dead body of PERSON was found buried at a distance of QUANTITY from the scene of the incident . The body bore traces of numerous gunshot wounds to the head and body .

On DATE ORG released a paper entitled “ GPE : Abuses Spread Beyond GPE . Neighboring Ingushetia Now Affected ” , which described the PERSON ' case as follows :

“ On DATE , CARDINAL Ingush civilians – sixty - DATE PERSON and CARDINAL of her sons , PERSON and PERSON DATE were returning from their potato field near the village of ORG , when their truck came under heavy machinegun fire , injuring ORG in the back , neck , and head . The brothers took their mother out of the car and PERSON stayed with her while PERSON ran to the village for help .

Local Ingush police who arrived TIME found PERSON unconscious and sent her to the local hospital , but were unable to find PERSON . His body , bearing clear marks of torture and gun shot wounds , was discovered TIME in a nearby forest . The PERSON police said that evidence suggests involvement by federal servicemen , but the military procuracy has refused to take over the case .

While ORG has in the past been the scene of clashes between NORP federal forces and NORP rebel fighters , ORG has no indication that any such activity took place in the area DATE . ”

Later , ORG gave a more detailed description of the PERSON ' case in its article entitled “ Spreading Despair : NORP Abuses in GPE ” , issued in DATE .

In TIME DATE investigators examined the scene of the incident . They found many used cartridges and an empty machine - gun cartridge belt , used bandages , empty water bottles , canned pork and plastic bags bearing ORG logo . The investigators took fingerprints from the bottles and tins . Then PERSON dead body was transported to the morgue .

At TIME on DATE a forensic expert commenced a post - mortem examination of PERSON body . According to the forensic report , there were numerous gunshot wounds to the body , namely CARDINAL perforating wounds to the head ; CARDINAL penetrating , CARDINAL perforating and CARDINAL non - penetrating wounds to the chest ; CARDINAL perforating wounds to an arm ; a wound to a shoulder joint and a wound to a buttock . It was also established that PERSON lower jaw had been broken by a blunt hard item . The expert concluded that PERSON death had been caused by the penetrating and perforating wounds to the head and chest and that the lethal shots had been fired from machine guns aimed at PERSON while he had been either standing or lying down . The death had occurred CARDINAL before the beginning of the autopsy .

On DATE PERSON was buried . His family received MONEY ( RUB ) from the President of ORG as a burial allowance , which was a common practice at the material time .

On an unspecified date the head of the local administration confirmed in writing that there had been no armed clashes between the federal troops and rebel fighters in the area around the village of ORG DATE .

On DATE PERSON wrote to ORG , ORG and the military prosecutor of ORG ( UGA ) , complaining about the military attack on his relatives and the murder of his brother .

On DATE the prosecutor 's office of LOC of GPE ( “ the district prosecutor 's office ” ) informed PERSON that his complaint concerning the events of DATE would be examined within the course of the investigation in case no . DATE .

On DATE ORG informed the second applicant that the investigation into the murder of PERSON in case no . DATE had been commenced by the district prosecutor 's office . It noted , in particular , the following :

“ As a result of the investigative measures taken it was established that the crime had been committed by the servicemen of military intelligence unit no . CARDINAL KTG ( « разведрота CARDINAL КТГ DATE ) with the direct involvement of the head of that unit , [ PERSON ] , nicknamed ' the Snake ' ( « PERSON ) , who is unable to leave the location of the unit in the village of ORG in LOC as the military prosecutor 's office has charged him with another crime and instituted criminal proceedings on that account . ”

On DATE a member of ORG received a letter from ORG stating that the investigation into PERSON killing had been suspended on DATE and resumed on DATE .

On DATE the district prosecutor 's office instituted an investigation into the killing of PERSON under LAW ( murder ) and LAW ( unlawful acquisition and possession of firearms ) of LAW . The case file was assigned the number GPE .

On DATE the crime scene was inspected and a post - mortem examination of PERSON body was ordered .

On DATE the first applicant was granted victim status and questioned . She stated that at TIME on DATE , while she had been travelling with her CARDINAL sons in the QUANTITY lorry , unidentified persons had opened fire . As a result she had suffered wounds to her neck and back . PERSON and PERSON had taken her out of the car and brought her into the forest . PERSON had gone to the village for help , while PERSON had dragged the first applicant to a hill . At some point she had lost consciousness . The first applicant had recovered her senses after the arrival of the police and the villagers of ORG . PERSON had not been seen anywhere around . The first applicant had not heard any voices and did not know who had shot at the car .

On DATE PERSON was granted victim status and questioned . He stated that at TIME on DATE their ZIL-CARDINAL lorry had been fired at from machine guns . The vehicle had hit a tree and stopped . PERSON and PERSON had taken their wounded mother out of the lorry and brought her into the forest . PERSON had asked PERSON to go searching for help , which PERSON had done . Having returned to the scene of the incident , PERSON , the police and the fellow villagers had found the first applicant , who had then been transferred to hospital . PERSON had disappeared ; on DATE his dead body had been found .

On DATE Mr NORP and Mr O. were questioned . They stated that at TIME on DATE PERSON had run towards them and told them that the ORG lorry had been fired at . They had reported the shooting to the police and gone to the scene of the incident . There they had found the first applicant unconscious ; PERSON had disappeared . While searching for PERSON , Mr NORP and PERSON had stumbled across a group of armed men . The men had pointed their firearms at Mr NORP and PERSON , verified whether they had had any weapons and checked their identity papers . Then they had questioned Mr NORP and Mr O. about their reasons for being in the forest and left in the direction of the village of GPE . On the following day PERSON dead body had been found buried CARDINAL from the place where the witnesses had met the armed men .

The investigators verified Mr NORP 's and PERSON statements . Within QUANTITY from PERSON grave they found an area with CARDINAL sleeping berths and the following items : empty plastic mineral water bottles , empty plastic bags , empty tin cans marked “ Boiled Buckwheat ” , “ PERSON ” , “ Liver Pâté with Pork Fat ” and other items bearing the stamp “ Military Supply of Provisions ” ( « Оборонпродкомплект » ) , a pair of worn socks , a piece of bandage with traces of blood and a portable remote - control detonator PM-CARDINAL No . CARDINAL CARDINAL - CARDINAL ( « переносная подрывная машинка ПМCARDINAL ORG ) .

The items found at the scene of the incident , the ZIL-CARDINAL lorry and a bullet extracted from PERSON body were subjected to forensic , ballistic , dactylographic , medical , olfactory and biological expert examinations carried out in DATE and DATE .

The ballistic expert examinations established that the bullet extracted from PERSON dead body had been fired from a PERSON machine gun of CARDINAL PERSON calibre . CARDINAL cartridge cases presented for examination had been parts of cartridges of CARDINAL PERSON calibre produced in GPE according to the DATE standards and suitable for NORP and ORG sniper rifles , as well as for PERSON machine guns . The cartridge cases in question had been fired from CARDINAL firearms . ORG belts presented for examination had been additional parts for a PERSON machine gun of CARDINAL PERSON calibre .

The forensic expert examination established that the ZIL-CARDINAL lorry had had CARDINAL penetrating bullet holes that could have been fired from a firearm of CARDINAL PERSON calibre .

The medical forensic expert examination found no traces of shots fired from short range on PERSON clothes .

On DATE a dactylographic expert examination of servicemen of military intelligence unit no . CARDINAL KTG was ordered .

On DATE the district prosecutor 's office requested the military commander of LOC of PERSON to submit a list of servicemen who had participated in search activities in the vicinity of the villages of ORG and ORG DATE and to carry out investigative measures in respect of them .

The dactylographic expert examinations established that fingerprints left on the items found at the scene of the incident were not identical to those of the servicemen who had been checked regarding their possible involvement in the crime , including ORG

The biological expert examination of saliva left on the cigarette butts found at the crime scene and the olfactory expert examination of the socks and the piece of bandage produced no significant results .

NORP The investigators requested information on the portable remote - control detonator from the UGA . On DATE the head of engineer troops of ORG replied that portable remote - control detonators PM-CARDINAL No . CARDINAL issued in DATE had not been supplied to ORG armouries and had not been sent to its military units .

The medical expert examination of the first applicant established that she had sustained mildly severe bodily injuries inflicted by hand - held firearms .

On an unspecified date an investigation into the infliction of bodily injuries on the first applicant was instituted under LAW of LAW . It is unclear what number the case was assigned and whether any progress was made in the investigation .

On DATE and DATE the district prosecutor 's office sent unspecified orders to ORG of the ORG and to the ORG military prosecutor respectively .

On DATE the district prosecutor 's office sent an unspecified order to ORG of ORG .

On DATE the district prosecutor 's office sent an unspecified order to the prosecutor of ORG .

In DATE and DATE ballistic and dactylographic expert examinations were carried out .

On DATE the fingerprints of GPE and CARDINAL servicemen of military intelligence unit no . CARDINAL KTG were taken and compared with the fingerprints detected on the cans found near the scene of the incident . None of the fingerprints left on the cans corresponded to those of the servicemen in question .

On an unspecified date the firearms used by the servicemen of military intelligence unit no . CARDINAL KTG were subjected to a ballistic expert examination .

DATE . On DATE the district prosecutor 's office sent an unspecified order to ORG of the ORG .

On DATE the district prosecutor 's office sent an unspecified order to the UGA military prosecutor .

On DATE the investigation was suspended .

According to the Government , it follows from the investigation file that on DATE there was an armed confrontation between federal servicemen and a group of around CARDINAL insurgents in the vicinity of the village of ORG , as a result of which CARDINAL insurgents were killed and CARDINAL wounded . An intelligence squad under the command of Lieutenant S.P. participated in the confrontation . In their submissions of DATE the ORG submitted that it had been impossible to either prove or refute the involvement of GPE or other federal servicemen in the killing of PERSON .

Lieutenant - Colonel GPE was questioned as a witness and stated that the information on the armed confrontation of the federal troops with the group of around QUANTITY insurgents , as a result of which CARDINAL insurgents had been killed and CARDINAL wounded , had been based on a report made by a duty officer of the ORG information centre and then issued as a press release . No other sources of that information had been found and its veracity was being checked .

In their submissions of CARDINAL DATE the ORG stated that no reliable evidence had been obtained by that time to prove the involvement of GPE or other federal servicemen in PERSON killing .

The investigation was resumed and suspended a number of times . It failed to find any evidence to support the involvement of the NORP federal military in the crime but was pending . Investigative measures were being taken to solve the murder of PERSON .

NORP Despite specific requests by ORG did not disclose any material from the investigation file in case no . DATE . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings .

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


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

On DATE the applicant was arrested on suspicion of homicide . She was first interviewed by a police officer . On DATE she was charged with murdering PERSON on DATE . On DATE she was questioned by ORG . During the questioning she stated that she had been having alcohol problems for DATE . She and ORG , a former work colleague , used to drink together . On DATE they had drunk QUANTITY of vodka and some wine . She also stated that she did not remember much of what had happened . She further confessed to killing PERSON Nevertheless , she stressed that she had not meant to kill the victim , but he had made her very angry and she had stabbed him with scissors .

During the arrest and subsequent questioning by the police and the prosecution authorities the applicant was not assisted by a lawyer . On DATE the applicant signed the relevant form acknowledging that she had been informed of her rights , including the right to be assisted by a lawyer and the right to refuse to testify .

On DATE the prosecutor ordered an expert report on the applicant ’s mental health at the time when the crime of which she was suspected was committed . The report was submitted on DATE . The applicant was considered to be criminally responsible .

On DATE the applicant asked to be released from detention . ORG refused her motion on DATE . This decision was upheld by ORG on DATE .

On DATE ORG appointed a legal - aid - lawyer for the applicant . On DATE the applicant appointed a lawyer of her own choice .

On DATE ORG filed a bill of indictment with ORG ( PERSON ) . The applicant was indicted on charges of murder .

NORP Throughout the trial the applicant maintained that she suffered from alcoholism . She retracted her confession made during police custody , alleging that she had been questioned under duress and forced by the police officers to make self - incriminating statements .

On DATE ORG , having regard to the fact that the applicant was represented by a lawyer of her own choice , decided to withdraw the services of the legal - aid lawyer .

The trial ended on DATE . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment . The court considered that the applicant ’s testimony during the trial had not been credible and had merely been her line of defence . The conviction was based on the applicant ’s statements made during the initial phase of the investigation and on evidence given by several witnesses .

On DATE the applicant ’s lawyer filed an appeal against the judgment . He stressed , in particular , that there had been a violation of the applicant ’s right to defend herself in view of the deficiencies in the preliminary investigation .

On DATE ORG ( Sąd Apelacyjny ) upheld the firstinstance judgment . The court held that the applicant ’s right to defend herself had not been infringed . It pointed out that as of DATE she had been assisted by a lawyer – first an officially appointed lawyer , then a lawyer of her own choice .

On DATE the applicant ’s lawyer filed a cassation appeal with ORG ( Sąd Najwyższy ) . He maintained that there had been a violation of LAW ( c ) of the LAW in that the applicant had not been assisted by a lawyer at the preliminary stage of the investigation . He relied on the caselaw of ORG .

On DATE ORG dismissed the applicant ’s cassation appeal . That decision did not contain any reasons .

Pursuant to Article CARDINAL § CARDINAL of the DATE LAW , an accused who had proved that he or she could not afford legal assistance ( i.e. that the costs of such assistance “ would entail a substantial reduction in his and his family ’s standard of living ” ) could ask the trial court to appoint him a defence counsel .

Article CARDINAL of the Code lays down the principle known as “ compulsory assistance of an advocate ” ( przymus adwokacki ) . That Article provides , in so far as relevant :

“ An accused must have an officially appointed lawyer when ORG is competent to deal with his case as a court of first instance , a crime is involved within the meaning of LAW , or the individual is remanded in custody . The counsel must take part in the main hearing ; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary . ”

This provision does not apply to the investigative stage of the proceedings but only after the case is sent for trial , as was expressly confirmed by ORG in its resolution of DATE ( III LOC ) .


András Sajó;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE the ORG found that there had been a violation of LAW , following an application lodged by the applicant on DATE ( PERSON v. GPE , no . CARDINAL ) concerning the length of criminal proceedings brought against him for his membership of Dev - Yol ( NORP Way ) . By then the proceedings had lasted for DATE . ORG awarded the applicant MONEY ( MONEY ) in compensation .

At the time of the ORG ’s judgment , the criminal proceedings against the applicant were still pending before ORG .

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

On DATE the applicant attended a hearing before ORG , gave a statement and submitted the ORG ’s judgment of DATE in order to ensure that his case would be heard within a reasonable time .

On DATE ORG sentenced the applicant to death , and then commuted his sentence to life imprisonment . The judgment was subject to appeal .

In the meantime in DATE , LAW was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war , or for acts of terrorism . Subsequently , by PERSON no . CARDINAL , which was published on DATE , ORG resolved , inter alia , to abolish the death penalty in peacetime .

On DATE ORG quashed the judgment of the first - instance court on the ground that the death penalty had been abolished during the course of the proceedings .

On DATE ORG resumed the trial . On DATE it ordered , in absentia , the provisional detention of the applicant in order to secure a statement from him .

On DATE ORG heard a statement from the applicant as regards the state of the case and revoked the detention order as having served its purpose . Subsequently , ORG held DATE more hearings .

On DATE , at its fourteenth hearing , ORG delivered its judgment and sentenced the applicant to life imprisonment pursuant to LAW .

According to the information made available to the ORG by the parties to date , the case is apparently still pending before ORG .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

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

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

On DATE the applicant and her CARDINAL sisters , relying on LAW , invited the Prague - West Land Office ( pozemkový úřad ) to transfer into their ownership CARDINAL plots of land which had been expropriated from their mother in DATE and , some of them , had been transferred to the ownership of natural persons in an assignment procedure .

On DATE the applicant signed an agreement with her CARDINAL sisters , who disclaimed their restitution rights in her favour .

The applicant entered into restitution agreements with the Prague - West District Office ( okresní úřad ) on DATE . ORG gave its approval on DATE .

A certain PERSON and PERSON , PERSON and PERSON and PERSON appealed against ORG approval , alleging that the plots of land had been lawfully assigned to them or that they had bought them in good faith from former assignees . On CARDINAL DATE ORG quashed the approval and sent the case back to ORG .

The restitution proceedings terminated by a decision of ORG ( Ústavní soud ) of DATE .

The relevant domestic law and practice concerning remedies for the length of judicial proceedings are stated in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .