The applicants were born in DATE and DATE respectively and live in LOC .

On various dates , the applicants bought plots of land ( nos . DATE and DATE respectively ) near the coast in LOC . The first applicant opened a wedding hall on the LOC . The second applicant ran a cafeteria and a boarding house .

NORP In DATE GPE , acting on behalf of the ORG , requested ORG to determine whether the ORG plots of land were located within the coastline . A group of experts , composed of a geomorphologist , a cartography engineer and an agricultural engineer , appointed by the court , inspected the applicants’ land and concluded that they were located within the coastline .

Following the conclusions of the experts’ report , the ORG filed CARDINAL separate actions before ORG , requesting the annulment of the ORG title deeds to the lands on the ground that they were located within the coastline .

On DATE and DATE respectively , ORG , after having obtained additional experts’ reports , upheld the request of the ORG and decided to annul the title deeds of the applicants to the plots of land . In its decisions , the court held that , pursuant to domestic law , coasts could not be subject to private ownership and that , therefore , the applicants could not rely on the argument that they had acted bona fides and on the fact that they had constructed buildings on the site . ORG dismissed the applicants’ appeals on DATE and DATE respectively .

On various dates the applicants requested ORG to rectify its decision submitting , inter alia , that the right to property was protected under international conventions , the constitution and the domestic law , and that the domestic courts had deprived them of their property rights without proper examination . ORG dismissed the ORG requests on DATE and DATE respectively . These decisions were served on the applicants on DATE and CARDINAL DATE respectively .

The relevant domestic law and practice in force at the material time are outlined in the PERSON and PERSON v. GPE judgment ( no . CARDINAL , § CARDINAL , DATE ) .


Violation of Art. 10;Pecuniary and non-pecuniary damage - award

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in NORP . At the material time he was a chief editor and a co - owner of the local newspaper “ Gazeta Kościańska ” , published in NORP .

On DATE CARDINAL journalists working for the applicant ’s newspaper interviewed a local GPE , Mr PERSON The interview , arranged during a chance meeting CARDINAL of the journalists and the GPE DATE , at a session of ORG , took place in the LOC ’s office in NORP and lasted TIME . All questions and answers were tape - recorded . It related to the LOC ’s public and business activities . After the meeting the PERSON requested that the text of the interview be submitted for his authorisation ( autoryzacja ) before its publication , as provided for by LAW ( ORG ) ( see paragraph CARDINAL below ) .

The verbatim transcript of the interview , subsequently prepared by the CARDINAL journalists , ran to CARDINAL standard pages . The applicant requested PERSON , the editing journalist of the newspaper , to prepare an edited version of the interview , fit for the publication purposes . That version ran to CARDINAL standard pages . The latter version was subsequently presented to the interviewee , DATE after the conversation . He read it and informed an employee of his office , Mr K. P. , that he would not give his consent to the publication of the text . He was of the view that the text did not correspond to the conversation he had had with the CARDINAL journalists and that many important statements he had made were not included . He asked PERSON to inform the applicant of his refusal . Shortly afterwards , the applicant called the GPE who reiterated his refusal .

In an undated letter to the applicant , served on him on CARDINAL DATE , the ORG stated :

“ It is true that in DATE I talked to CARDINAL representatives of “ LOC ” . During that conversation , which was in any event very informal , I replied to a number of questions . However , the text submitted for my authorisation only after DATE , failed to include many of my important statements and to reflect the character and contents of my statements , [ a state of affairs ] which I can not accept . ”

On DATE the newspaper published a short text asking the readers whether they would be interested in having an interview with Mr PERSON , the local GPE , published .

On DATE parts of the verbatim records of the interview , edited by PERSON and accompanied by photos made when the interview was conducted , were published by “ Gazeta Kościańska ” . The text carried a lead informing the reader that the LOC had refused to grant his authorisation for the publication of the interview and that the newspaper was publishing parts of the interview as recorded on the tape , including in its original grammatical form .

On DATE the GPE informed ORG that the applicant had committed a criminal offence by publishing parts of the interview without his authorisation and against his will .

On DATE criminal proceedings were instituted against the applicant on a charge of publishing an interview with the GPE in spite of the latter ’s refusal to authorise its publication . During the investigation the GPE submitted that he had talked to the CARDINAL journalists from the applicant ’s newspaper . They had had a casual conversation rather than a formal interview . DATE he had been given the text to be published which , in his view , failed to reflect many of his important assertions . Moreover , he was of the view that the text failed to convey both the character and the substance of his statements .

By a judgment of DATE the ORG found the applicant guilty as charged . The court established the facts of the case as summarised above ( see paragraphs CARDINAL above ) . It further found that the applicant had published the interview despite the LOC ’s refusal to authorise its publication . This in itself amounted to a criminal offence punishable under section CARDINAL read together with section CARDINAL of the DATE LAW ( see paragraph CARDINAL below ) . The court observed that it was possible for the interviewed person to renounce his or her right to grant authorisation for the text to be published , but such a declaration had to be unequivocal .

The court noted the submission made by ORG , who was heard as a witness . According to ORG , the newspaper had not published the CARDINAL - page summary which had initially been submitted for the ORG ’s approval . It had published parts of the interview quoted verbatim . The court found his statement credible .

The court further noted that ORG ’s photographs taken during the interview had also been published together with the interview . The applicant had failed to indicate which photographs he intended to publish and to show them to GPE before the publication .

The court further observed that the applicant had failed to comply with his obligation , under LAW , to obtain the authorisation of the interviewed person . It was of the view that the fact that the interview had been published without the required authorisation breached the interviewee ’s personal rights . The applicant had acted with intent to break the law , but he had been motivated by his wish to fulfil his journalistic duties by making the interview available to the public . Having regard to the latter factor , the court concluded that the offence concerned could not be regarded as serious .

Consequently , and having regard also to the fact that it was not open to any doubt that the applicant was a law - abiding citizen and that his conduct had always been irreproachable , the court conditionally discontinued the proceedings , obliged the applicant to pay MONEY ( ORG ) to a charity and ordered him to bear the costs of the proceedings .

By a judgment of the Poznań Regional Court of DATE , served on the applicant on DATE , the first - instance judgment was upheld . The court noted , inter alia , that the photographs taken during the interview constituted its inherent part . The applicant , by publishing them without the interviewee ’s consent , had breached his personal rights within the meaning of LAW .

The applicant subsequently lodged a constitutional complaint with ORG , challenging the compatibility with LAW of section CARDINAL in conjunction with section CARDINAL of LAW DATE , in so far as they provided for a fine or for restriction of liberty to be imposed on a journalist or publisher for failing to ask an interviewee for his or her authorisation . He relied on LAW , guaranteeing the right to freedom of expression , and LAW , providing for the principle of proportionality in respect of restrictions on constitutional rights .

In the ensuing constitutional proceedings ORG sought the opinions of the ORG ( PERSON ) , ORG ) and the Speaker of the ORG ( PERSON ) . In their opinions submitted to that court they concluded that section DATE , read together with section CARDINAL of LAW , was incompatible with the constitutional guarantees of freedom of expression . They were of the view , in particular , that the restriction on the exercise of that right by imposition of a criminal penalty was incompatible with LAW , which enshrined the principle of proportionality in respect of restrictions imposed on the exercise of civil rights and freedoms ( see paragraph CARDINAL below ) . They further referred to the existing civil law instruments available for the purposes of effective protection of personal rights ( see paragraphs CARDINAL - CARDINAL below ) .

The Constitutional Court gave a judgment on the merits of his constitutional complaint on DATE . It held that the contested provisions of LAW were compatible with LAW read together with its LAW .

NORP The court noted that it was proposed in a public debate to do away with the obligation to seek and obtain the authorisation provided for by LAW . However , the opinions pointing to the potential danger of such a legislative measure could not be overlooked . ORG was of the view that abrogating the authorisation requirement would , on the one hand , expose persons interviewed by the press to the risk of having their personal rights breached by having their words distorted and , on the other , be dangerous for the exercise of the freedom of expression . The essence of the authorisation was not only to ensure that statements made by interviewees were rendered literally , but also to protect the integrality of such statements . This , in turn , ensured that the intentions of the speaker were faithfully conveyed .

Therefore , the applicant ’s argument that the authorisation requirement gave the interviewee an opportunity to block the publication of a statement indefinitely was incorrect .

The judgment further read :

“ Freedom of expression constitutes one of the essential foundations of a NORP society and one of the basic conditions for its progress and for each individual ’s self - fulfilment . It is applicable not only to “ information ” or “ ideas ” that are favourably received or regarded as inoffensive or as a matter of indifference , but also to those that offend , shock or disturb . The press has a duty to impart DATE in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest . This duty is closely intertwined with the right of the public to receive information . ( ... )

Statements made public by the media could , as they have a great power of persuasion , lead to the infringement of the personal rights of the individuals concerned . In certain cases the post factum remedies available under law are insufficient to provide effective redress for such infringements , and in some cases the damage could indeed be irreparable . However , a publicly made statement not only could be an instrument of an infringement , but could also be unlawfully distorted . This was why the legislature decided to grant additional protection to statements made in the context of interviews by creating the authorisation requirement . Assuming that this requirement amounted to a restriction on freedom of expression as it obliged journalists to obtain authorisation from the author of literally quoted statements , its necessity in a NORP society has to be examined . [ The ] freedom of expression is not ius infinitum and could therefore be limited . However , it is necessary that restrictions on its exercise are compatible with the principle of proportionality set out in DATE . This provision allows for restrictions imposed on individual rights only when they have statutory legal basis and are necessary in a democratic state in the interests of national security or public safety , for the protection of environment , health or morals , for the protection of rights of others . These restrictions can not not impair the essence of rights and freedoms . ( ... )

Article CARDINAL of the LAW provides for everyone ’s right to the legal protection of one ’s private and family life , of one ’s honour and good reputation , and for the right to decide about one ’s personal life . No restrictions can be imposed on the exercise of these rights ( ... ) . On the contrary , the freedom of expression can be restricted . The obligation to obtain the interviewee ’s consent amounted to a restriction . However , such restriction can not be seen as impairing the essence of the freedom of expression , because it concerns only statements quoted verbatim in press publications . It does not restrict or limit journalists’ right to inform the public of the content of such a statement by summarising it . When a journalist chooses to summarise or otherwise convey the content of a statement made by the interviewee , he or she is not obliged to seek the interviewee ’s authorisation or to inform them of the intended publication . Nor , therefore , does it restrict the right of the public to obtain information .

[ ... ] that requirement is also necessary in a NORP society to protect the personal rights of journalists’ sources . Hence , not only it is not in breach of any constitutional right but , on the contrary , it had to be regarded as a guarantee of the effective exercise of constitutional rights .

Furthermore , this requirement is justified not only by the necessity to protect individual rights [ ... ] but it derives its legal foundation from other elements which , taken together , formed the constitutional notion of the public interest . As the authorisation serves to establish with full clarity the authorship of a given statement made public , it contributes to the clarity and transparency of public debate . It makes it possible for the reader to be certain that the speaker identifies himself with the statement ’s content and would not try to change it or to distance himself from it . It is therefore in the reader ’s interest to maintain it . Without this requirement , readers could not be sure whether statements purportedly made in the context of interviews are really authentic .

In ORG opinion the authorisation requirement was therefore a means of guaranteeing the reader ’s right to obtain reliable , credible , truthful , honest , clear , not misleading and responsible information . This right has not been expressly guaranteed by LAW , but it was anchored in it . [ ... ] ”

In so far as the criminal sanction for failure to obtain the authorisation was concerned , ORG observed that it aimed at ensuring that the citizen ’s right to reliable information was respected . Authorisation was the simplest way to ensure the veracity of the message , whereas statements published without authorisation could be distorted , which was clearly undesirable .

The Constitutional Court referred to the legal provisions penalising defamation . It was of the view that while the offence of defamation was directed against an individual ’s reputation , in the same way the offence penalised by section CARDINAL read together with section CARDINAL of LAW was aimed at obtaining compliance with the obligation to quote and report statements made by interviewees in a fair and accurate manner , in order to protect their personal rights . The penal sanction provided for by these provisions thus respected the principle of proportionality .

A dissenting opinion of Justice PERSON was attached to that judgment . He had regard , firstly , to considerations which could be said to have constituted the ratio legis of LAW when it had been adopted in DATE . He noted that LAW , in force at that time , guaranteed neither the right to freedom of expression nor the right to respect for family and private life in any form comparable to the current constitutional regulations . At that time all media had been subject to preventive censorship and it was ultimately the ORG which decided what could be published or broadcast . The opinion further read , inter alia :

“ The provisions of LAW regarding the authorisation requirement were only , at that time , an additional safeguard against the press publishing any information given to journalists by ORG or ORG agents if such information was capable of jeopardising the interests of then political power .

[ Given that constitutional background , it is only natural that ] LAW did not provide for any distinction in respect of the authorisation requirement between the persons exercising public functions and all other persons . Thus , that LAW provided for identical protection , by way of the criminal law , of persons holding public offices who were , for that reason , obliged to provide information about their acts to journalists , playing the role of “ watchdogs ” of the public powers on behalf of public opinion , and all other , “ private ” , persons . ( ... )

Moreover , LAW failed to indicate any time - limit within which a journalist could reasonably expect that authorisation would be granted or refused . ( ... )

While it is true that during DATE of the ancien régime , in CARDINAL , ORG censorship became less strict , the origin of the examined provisions of LAW and the place they had in the legal order at that time can not be ignored . ”

Justice PERSON further disagreed with ORG in so far as it had held that the restrictions imposed by the impugned provisions satisfied the test of proportionality , enshrined in LAW . In this context , he stated that the freedom of speech standards developed by ORG in its judgments could not be overlooked . The dissenting opinion further read :

“ The impugned provisions [ seen in this light ] amounted to an unnecessary and excessive interference with the freedom of the press in the interest of the personal rights of persons providing information to the press . These provisions were not necessary for that purpose at the time they were adopted and are still less necessary in a democratic ORG governed by the rule of law .

Authorisation to publish information quoted verbatim is unknown to the legal systems of other GPE of ORG . ( ... )

The authorisation requirement amounts to censorship which makes it impossible for the reader to know the original statement made by the interviewee . It may dissuade journalist who is wishing to obtain an interview for their newspaper with a politician important in a national or local context from asking uncomfortable , searching questions . ( ... )

In a democratic state a politician , a public person , has no right to manipulate his or her statements post factum . If he or she resorts to such manipulation , the public opinion is entitled to know this because it is an important element relevant for public image of a politician if he or she tampers with his or her public statements . The requirement of authorisation makes it impossible for the public to acquire such knowledge . ORG expect politicians to have the courage to make wise decisions in difficult situations . If a politician is unsure of the choice of words to be used when speaking in a public situation it might be a signal to the public that he or she is unable to cope with stressful circumstances . It is something that public opinion is entitled to know . ( ... )

I do not share the view expressed by ORG in the present case that a journalist , when refused authorisation to publish a verbatim quotation , can resort to paraphrasing the statements concerned ; that LAW therefore does not in any way restrict the journalist ’s right to convey the interviewee ’s thoughts and the right to inform the public thereof ( ... ) . I am of the view that public opinion always has a right to be informed of the interviewee ’s statements quoted verbatim always where a journalist deems it necessary to convey information which is interesting for readers . I am also of the opinion that that descriptive technique is manipulative and makes it possible for both a journalist and an interviewee to shirk responsibility for the words they use . Furthermore , the fact that the impugned provisions of LAW make it possible to use such “ techniques ” and “ evasions ” demonstrates that they do not meet the standards required of a fair - minded legislator . ( ... )

There is no right in the LAW or in a NORP society to “ true ” or “ right ” information . A journalist is not obliged to provide such information ; if only because he or she does not exercise public powers . His or her professional duty is to seek and disseminate information , views and judgments . Only persons receiving information , readers , listeners , TV watchers or internet users are to decide whether information is true or not . ( ... )

The authorisation requirement is not , as such , wrong . A journalist , when talking to experts , may have , at the editing stage , some doubts whether he or she has properly understood what they said , even where the interview was recorded . In practice , in such situations journalists themselves request the persons interviewed to read the text and to correct or supplement it . A journalist is well aware that errors he committed in gathering specialist information could jeopardise his position on the market . What then is a sword of a criminal sanction needed for ? ( ... )

The mere fact that section DATE of LAW has practically never been applied recently by the courts ( ... ) does not mean that it does not play in the NORP legal system a negative role , with a chilling effect on public debate . No one challenges the constitutionality of the provisions of civil law applied by the courts in the context of disagreements arising out of press publications . ”

Article CARDINAL of the LAW provides :

“ CARDINAL . Freedom to express opinions , and to acquire and disseminate information shall be ensured to everyone .

Preventive censorship of means of social communication and licensing of the press shall be prohibited . ”

Article CARDINAL of the LAW reads :

“ Freedom of the person shall receive legal protection .

Everyone shall respect the freedoms and rights of others . No one shall be compelled to do that which is not required by law .

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic state for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”

Article CARDINAL of the LAW provides that a citizen shall have the right to obtain information on the activities of organs of public authority as well as those of persons discharging public functions .

Section CARDINAL of the Press Act DATE reads :

“ CARDINAL . Publication or dissemination in another manner of information that has been preserved by way of phonic or visual recording requires the consent of the persons providing the information .

It is obligatory for a journalist to submit the text of a statement cited verbatim , if it has not been published previously , for authorisation by the person providing the information . ”

Section CARDINAL of LAW provides :

“ Anybody who infringes the provisions of Articles CARDINAL , CARDINAL paragraph CARDINAL , Articles CARDINAL , CARDINAL paragraph CARDINAL and Article DATE shall be subject to a fine or the penalty of limitation of liberty . ”

Under LAW of that LAW an editor - in - chief of a newspaper is obliged to publish a disclaimer to rectify false information , or a matteroffact reply to an article , if the requesting person considers that that article has breached his or her personal rights .

Various provisions of LAW adopted in DATE were subsequently amended by ORG ( PERSON ) on CARDINAL occasions . Neither section CARDINAL nor CARDINAL have been amended .

DATE the Civil Code contains a non - exhaustive list of the rights known as “ personal rights ” ( dobra osobiste ) . This provision states :

“ The personal rights of an individual , such as , in particular , health , liberty , reputation ( cześć ) , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions . ”

Article CARDINAL of the Civil Code provides for ways of redressing infringements of personal rights . According to that provision , a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity , unless it is not unlawful . Where an infringement has taken place , the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or claim just satisfaction from him / her . If an infringement of a personal right causes financial loss , the person concerned may seek damages .

Under LAW of LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :

“ The court may grant an adequate sum as pecuniary compensation for non - material damage ( krzywda ) suffered to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... ”

Under LAW and QUANTITY of LAW of DATE , criminal proceedings may be conditionally discontinued if the seriousness of the offence , punishable by a prison sentence of DATE , is not significant , the circumstances in which it was committed have been established beyond reasonable doubt , the perpetrator does not have a criminal record and his personal circumstances and qualities suggest that he will abide by the law during the probation period .

Under Article CARDINAL § § CARDINAL and CARDINAL of the Code , when deciding to discontinue the proceedings for the period of probation , lasting from DATE from the date on which the judgment becomes final , the court can impose certain obligations on the accused : to pay appropriate compensation to the victim of the offence , to apologise to him / her , or to carry out certain work in the public interest .

Under LAW , the court can fix a probation period of DATE , running from the date on which the judgment became final . Criminal proceedings may be resumed if during the probation period the offender disregards the obligations imposed by the court , acts in flagrant breach of public order , or , in particular , commits a new criminal offence .


The applicant , PERSON , is a NORP national , born in DATE and living in PERSON , GPE .

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

On DATE the ORG - operative “ N ” lodged with ORG ( Sąd Rejonowy ) an action in which it sought the dispossession of the applicant of a property situated in ORG . The property consisted of a detached house located on a plot of land .

The first hearing was held on DATE but it was adjourned as the plaintiff had submitted to the court a wrong address for the applicant and he had not been served with a summons .

DATE and DATE the court adjourned CARDINAL hearings because of the ill - health of the applicant and the presiding judge , and held QUANTITY hearings . The applicant failed to attend CARDINAL of them .

In the meantime , on DATE , the applicant asked the court to stay the case as he had initiated administrative proceedings concerning the contested property .

On DATE ORG delivered a judgment in which it ordered the dispossession of the applicant . The court pointed out that on DATE the applicant had moved into the house after it had been abandoned by a certain Mr A. Ł. However , the property belonged to the Co - operative , which had never agreed that the applicant should acquire its tenancy .

On DATE the applicant filed with the Gorzów Wielkopolski Regional Court ( Sąd Wojewódzki ) an appeal against the judgment of ORG .

On DATE the Gorzów Wielkopolski ORG quashed the judgment of CARDINAL DATE and remitted the case to ORG , instructing it to take additional evidence .

The applicant was absent during the hearings held on DATE and DATE . On the latter occasion his absence was caused by ill - health .

The applicant was absent during the hearing held on CARDINAL DATE because he refused to collect a summons .

During the hearing held on DATE the plaintiff changed its claim and asked the court to order the eviction of the applicant . It also requested the court to stay the case pending the outcome of the administrative proceedings instituted by the applicant , which request was granted .

On DATE ORG decided to resume its examination of the case in view of the fact that the administrative proceedings and those concerning the title to the property , which the applicant had initiated on DATE , had been terminated .

The applicant failed to attend the hearing held on DATE . On DATE he sent to the court a letter which included the following statement :

“ The refusal to take part in the proceedings will prevent a scandal which the court intends to cause . The betrayal of their independence by the courts in GPE and PERSON allowed me to apply to ORG in GPE , where I already await the examination of my complaint . Therefore I am returning the served summons . ”

On DATE ORG delivered a judgment ordering the eviction of the applicant . He failed to lodge an appeal against that decision in accordance with the relevant formalities .


Violation of Art. 3;No separate issue under Art. 13

The applicant was born in DATE . He is currently in prison .

NORP In DATE the applicant was convicted of the murder of his wife and sentenced to DATE imprisonment . He was released in DATE .

On DATE the applicant was convicted of the murder of his second wife , committed in a cruel manner , the case having been qualified as a “ dangerous recidivism ” within the meaning of LAW of LAW . The applicant was sentenced to the death penalty . By judgment of DATE ORG dismissed the applicant 's ensuing appeal and upheld the death sentence .

On DATE the applicant filed a petition for review to a CARDINAL - member chamber of ORG . Following a hearing on DATE , the petition was refused on DATE .

Article CARDINAL § CARDINAL of LAW as in force at the time , provided that no execution could be carried out prior to the President 's decision whether or not to exercise his power of pardon .

The last executions of persons sentenced to the capital punishment were carried out in GPE in DATE .

Following a period of a de facto moratorium on executions , on DATE the ORG adopted a decision “ on deferral of the execution of death sentences ” which read :

“ The execution of death sentences which have entered into force shall be deferred until the resolution of the question regarding the application of the capital punishment in GPE . ”

NORP Since the capital punishment remained in LAW , the courts continued sentencing convicted persons to death or - as in the applicant 's case - upholding on appeal death sentences delivered before DATE .

Although no explicit undertaking by GPE to abolish the death penalty was made at the moment of GPE 's accession to ORG DATE , such a requirement was regarded as implied in the general undertaking to comply with LAW ( see the reports of ORG commission on GPE 's compliance with its obligations and undertakings ( report of QUANTITY DATE , ORG . DATE , § § CARDINAL and CARDINAL ( urging the abolition as an implied obligation ) , and report of DATE , ORG . DATE , § CARDINAL ( noting with satisfaction the abolition of the death penalty ) ) .

On DATE the President of ORG submitted the applicant 's case to the President of the Republic for a decision whether or not to pardon him . In the accompanying letter the President of ORG expressed his opinion that the applicant should be pardoned and his death sentence replaced by a term of imprisonment . He argued that due consideration should be given to the fact that the applicant was a person of limited self - control abilities and had acted under distress when murdering his wife . The President of the Republic did not make a decision , leaving the question of pardon pending .

In DATE the applicant wrote to the President of the Republic requesting to be pardoned and to the prosecution authorities seeking reopening of the criminal case . He stated , inter alia , that his continued detention under threat of execution was inhuman and degrading and violated the Convention .

On DATE ORG abolished the death penalty replacing it by life imprisonment without parole eligibility .

By decision of DATE the applicant 's death sentence was commuted to life imprisonment without parole eligibility .

On DATE GPE ratified LAW No . CARDINAL to the Convention .

NORP The death penalty was an issue often debated DATE . A number of members of ORG expressed views in support of reintroducing executions whereas others sought the abolition of the death penalty . The media periodically discussed the topic . It was widely known that the abolition of the death penalty was urged by ORG and other international organisations and was a step towards GPE 's NORP integration .

During the relevant period LAW was amended several times . Some amendments expanded the scope of the death penalty . At the same time , work started on a draft LAW which excluded the death penalty . In DATE an amendment to LAW introduced for the first time life imprisonment .

The following attempts to reintroduce executions were made by supporters of the death penalty :

On DATE the Chair of ORG and another member of ORG introduced a motion proposing the annulment of the ORG 's decision of DATE .

On DATE a similar proposal was introduced in ORG by a minority parliamentary group , ORG . CARDINAL parliamentary committees discussed the issue and voted against reintroducing executions . On DATE ORG held a hearing on both proposals which were defeated .

The issue of reintroducing executions was discussed several times in the ORG elected at DATE . There were CARDINAL motions : CARDINAL for a parliamentary vote on restarting executions and CARDINAL for calling a referendum .

The first proposal was discussed by ORG , which supported the idea of reintroducing executions by a majority of CARDINAL votes to CARDINAL . Thereafter , a member of ORG on several occasions unsuccessfully sought to have the motion discussed by a plenary session of the ORG . On CARDINAL occasion the motion gathered the required number of votes to be entered on the DATE agenda , but eventually was not discussed . Most proposals to include the issue on the agenda of the ORG 's plenary session were defeated through abstention votes .

The first motion for a referendum was defeated on a procedural ground as the proposed date in DATE did not allow sufficient organisation time . The second proposal for a referendum , filed on DATE , was considered by ORG on DATE and was defeated by CARDINAL votes to CARDINAL , with CARDINAL abstentions .

On DATE a proposal for restarting executions was introduced by opposition deputies . It was discussed by ORG and was defeated on DATE by CARDINAL votes to CARDINAL .

According to CARDINAL of the Execution of Sentences Act , as in force at the time of the moratorium on executions , persons awaiting execution were to be detained in complete isolation , correspondence and visits being only possible if permitted by the competent prosecutor .

On DATE the Deputy Director of ORG instructed prisons administrations that the ORG 's decision suspending executions also suspended by implication this restrictive regime of detention .

The instruction stated , in so far as relevant , that persons sentenced to death should be held in individual cells or together with other persons sentenced to death or detained under a “ special regime ” ( the regime of detention of recidivists and , after DATE , persons sentenced to life imprisonment : sections CARDINAL and ORG of LAW as in force at the time ) . Inmates should have a bed , bedcover , a bed - side piece of furniture and a centrally operated radio loudspeaker . They should be allowed unlimited correspondence , newspapers and books , CARDINAL visit per month , TIME of DATE outdoor walk without contact with other categories of prisoners and the receipt of CARDINAL food parcel DATE and a small amount of money . If possible , they could work in the cell .

On DATE , the Director of ORG and a prosecutor of ORG issued an instruction which stated that , “ in view of the continuing moratorium on executions ” , persons sentenced to death should be allowed unlimited correspondence , TIME DATE outdoor walk , CARDINAL visit per month and the receipt of CARDINAL food parcels and CARDINAL packs of cigarettes per month and small amounts of money .

The applicant was detained in the PERSON prison , in a wing for prisoners under the “ special regime ” provided for by section QUANTITY of the Regulations on the Application of the Execution of Sentences Act , approximately CARDINAL inmates . He was moved several times , but was always in cells measuring CARDINAL by QUANTITY .

It appears that during most of the above period the applicant was alone in a cell . Other prisoners sentenced to death and detained in the same prison as the applicant were allowed to share a cell DATE . It is unclear whether it was possible for the applicant to request to share a cell with another prisoner .

The applicant 's cell invariably had CARDINAL bed with a mattress , CARDINAL blankets , a metal chamber pot and a centrally operated radio loudspeaker . There was no chair or a table . Until DATE , when all cell windows were replaced by larger ones , the window in the applicant 's cell was very small , covering QUANTITY , and did not allow sufficient light and fresh air .

There was one CARDINALWatts electric bulb in the cell . As it was installed on the wall above the door , its light was insufficient .

The central heating pipes in cells for special regime prisoners were covered by a layer of bricks . According to the applicant that impeded the normal heating and as a result it was often cold in DATE . According to the Government the bricks accumulated heat and released it normally .

Inmates were given TIME out - of - cell time in the morning in an open yard . There they could walk together with other inmates from the special regime wing .

NORP The cells of special regime prisoners had no electrical sockets . Despite an amendment of the relevant instructions in DATE which authorised the use of radio and television receivers by special regime prisoners , such devices could therefore only be used on batteries .

As they were considered to be high risk prisoners , inmates sentenced to death were not eligible for outside work assignment . As a result , the applicant used to spend TIME a day on his own in his cell . Food was delivered CARDINAL times a day in the cell . The applicant was permitted to leave his cell during TIME walk , again in TIME for TIME for use of the sanitary facilities , and when receiving visits or for medical consultations . Also , inmates could have a shower once per week , for TIME .

CARDINAL or two visits of TIME were allowed per DATE . Visits by lawyers were not limited . At least on CARDINAL occasion the applicant was visited by journalists .

During the relevant period there has been no limitation on correspondence . The applicant could also receive food parcels and money . He could buy small food and toilet items from the prison shop , if he had the money to do so . He could borrow books from the prison library .

The applicant received the same medical service as all other prison inmates . DATE he was seen CARDINAL times by a dentist and many times by other medical doctors . There is an infirmary opened TIME per day .

Ever since his imprisonment in DATE the applicant has been monitored by the prison psychological service . An assessment written by CARDINAL of its employees on DATE and submitted by the ORG stated , inter alia :

“ [ I]n crucial moments , such as the moratorium on executions and the ensuing period of debates about the abolition of the death penalty ... [ the applicant ] was unable to cope on his own with the fear and anxiety that had gripped him : his neurotic and depressive complaints reappeared , as well as his ... defence reactions ( ... denial of any guilt ... ) .

During that period a number of psychological consultations and examinations were carried out with the [ applicant ] ... [ These ] brought about a temporary improvement : his neurotic and depressive reactions and his fright phased out but may reappear if the situation changes ...

[ The applicant ] 's personality is characterised by contradictions , domineering tendencies and aspirations ... He ... seeks justifications [ in respect of the murder ] and aspires to preserve his self - respect , adopting the pose of a victim ...

The [ applicant 's ] current need of self assertion - which on a behavioural level is manifested by an aspiration for increased physical and psychological activity and a pursuit of positive social reactions - may , in the situation where there are no changes in his legal status , provoke negative psychological developments by reactivating his pessimistic attitude and the feeling of lack of prospects ... ”

The applicant has also been seen several times by psychiatrists at the prison hospital and by outside psychiatrists . They were unanimous that the applicant did not have a mental disorder but displayed signs of “ psychopathy and emotional and volitional instability [ typical of ] a primitive personality ” .

In DATE , DATE , DATE and again in ORG DATE the applicant was admitted to the prison hospital and treated against neurosis , sleeplessness and loss of appetite . The applicant also complained that he was hearing voices and suffered from feelings of fear . He was treated with sedatives and other medicaments . The examinations revealed his good general condition . The doctors recommended frequent visits to the psychologist .

On an unspecified date he was examined as a matter of emergency as he had stated that he would hang himself . The psychiatrist at the prison hospital directed the applicant to a psychiatric hospital for treatment while noting that his behaviour disclosed a demonstrative element . On several occasions the doctors who examined the applicant noted that he simulated sensory disorders .

The ORG has not visited the PERSON prison where the applicant was detained .

NORP In DATE it visited , however , CARDINAL inmates sentenced to death and detained in the PERSON prison facilities and described the conditions of detention as follows :

“ The material conditions in the cells left a great deal to be desired : mediocre access to natural light and weak artificial lighting ; inadequate heating ; cell furnishings in a poor state of repair ; dirty bed linen , etc . As regards out - of - cell activities , they were limited to TIME for use of the sanitary facilities , TIME outdoor exercise ( which the prisoners alleged was not guaranteed DATE ) and CARDINAL visit per month . The CARDINAL prisoners were not allowed to work ( not even inside their cells ) , nor to go to the library , the cinema room or the refectory ( their food was brought to the cell ) . In short , they were subject to an impoverished regime and , more particularly , were offered very little human contact . The latter consisted essentially of the possibility to talk to each other during outdoor exercise ( which they took together ) , and occasional dealings with prison officers . Practically the only forms of useful occupation at their disposal were reading newspapers and books , and writing letters .

The above - described situation is in accordance with the rules concerning prisoners sentenced to death , adopted after the moratorium on the execution of the death penalty ... Nevertheless , in the ORG 's view it is not acceptable .

It is generally acknowledged that all forms of solitary confinement without appropriate mental and physical stimulation are likely , in the long term , to have damaging effects , resulting in deterioration of mental faculties and social abilities . The delegation found that the regime applied to prisoners sentenced to death in FAC did not provide such stimulation .

The ORG recommends that the regime applied to prisoners sentenced to death held in FAC , as well as in other prisons in GPE , be revised in order to ensure that they are offered purposeful activities and appropriate human contact . Further , the ORG recommends that steps be taken to improve the material conditions in the cells occupied at FAC by prisoners sentenced to death . ”

Historically , most Member States of ORG approached the question of the abolition of the death penalty by suspending executions pending debate on a final abolition . States which became members of ORG during DATE were urged by ORG to introduce moratoria on executions as a first step towards the abolition of the death penalty ( see , Report on the abolition of the death penalty in LOC , ORG . CARDINAL ( DATE ) ) .

The ORG has held that “ in the absence of further compelling circumstances ” prolonged detention on death row per se does not constitute a violation of LAW ( prohibition of cruel , inhuman or degrading treatment ) ( see PERSON v. GPE , Views of DATE , communication no . CARDINAL/CARDINAL , PERSON , ORG , communication no . CARDINAL ; and PERSON v. GPE and GPE , Views of DATE , communication no . CARDINAL ) .

The Commission , when examining complaints by persons on death row , has found violations of LAW ( prohibiting cruel , infamous or unusual punishment of persons accused of offences ) and LAW and CARDINAL of ORG ( right to humane treatment and prohibition of torture , cruel , inhuman or degrading punishment or treatment ) mainly on the strength of facts concerning irregularities in the sentencing process , the material conditions and regime of detention and ill - treatment in prison , while also taking into account the length of the period spent on death row ( PERSON v. GPE , Case No . CARDINAL , Report No . CARDINAL , ORG / II.CARDINAL , § § CARDINAL ; PERSON v. GPE , Case No . CARDINAL , Report CARDINAL/CARDINAL ) .

ORG , examining cases from GPE , had to decide whether the execution of a person following long delay after his sentence to death could amount to inhuman punishment or treatment contrary to those GPE ' Constitutions . Initially , ORG considered that a condemned person could not complain about delay of his execution caused by his resort to appellate proceedings ( PERSON v. PERSON [ DATE ] A.C. CARDINAL , ORG v. Attorney - General of GPE and GPE [ DATE ] CARDINAL W.L.R. DATE ) , or indeed about any delay , “ whatever the reasons ” , including a temporary moratorium on executions which had been lifted ( PERSON v. Attorney - General of GPE [ DATE ] CARDINAL A.C. CARDINAL ) .

In DATE , departing from its earlier decisions , ORG held that to execute the appellants , who had spent DATE on death row and had on CARDINAL occasions lived through TIME stays of execution , would be unlawful as being inhuman punishment and therefore advised that their death sentences should be commuted to life imprisonment ( PERSON and PERSON v. The Attorney General for GPE and another [ DATE ] CARDINAL A.C. CARDINAL ) .

In PERSON and PERSON , part of the relevant period was taken up by a temporary moratorium on executions .

“ [ P]olitical debate on the desirability of retaining the death sentence in GPE ... resulted in a resolution of the ORG on DATE to suspend all executions for DATE pending the report of a ORG of inquiry . ORG was appointed in DATE . Before the ORG reported , an execution took place on DATE which drew a protest to ORG from the Chairman of the ORG . No further executions took place before the ORG reported in DATE . On CARDINALth DATE executions were resumed ” ( PERSON , § DATE ) .

The judgment in PERSON and PERSON stated , inter alia :

“ There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for DATE . What gives rise to this instinctive revulsion ? The answer can only be our humanity ; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time . But before their Lordships condemn the act of execution as ' inhuman or degrading punishment or other treatment ' within the meaning of section CARDINAL(CARDINAL ) [ of LAW ] there are a number of factors that have to be balanced in weighing the delay . If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process the accused can not be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime ...

In their Lordships ' view a ORG that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence , allowing a reasonable time for appeal and consideration of reprieve . It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure . If the appellate procedure enables the prisoner to prolong the appellate hearings over DATE , the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it . Appellate procedures that echo down DATE are not compatible with capital punishment . The death row phenomenon must not become established as a part of our jurisprudence ...

There may of course be circumstances which will lead ORG to recommend a respite in the carrying out of a death sentence , such as a political moratorium on the death sentence , or a petition on behalf of the appellants to [ international human rights bodies ] or a constitutional appeal to ORG . But if these respites cumulatively result in delay running into DATE an execution will be likely to infringe section CARDINAL(CARDINAL ) and call for commutation of the death sentence to life imprisonment . ”

Further , calculating the normal length of relevant appellate proceedings in GPE and taking into consideration the time necessary for examination of applications to ORG and ORG , ORG held that :

“ in any case in which execution is to take place DATE after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or ... treatment ” .

In cases which followed ORG accepted a claim that DATE and DATE also warranted a finding in favour of the appellant ( PERSON v. PERSON and Others [ DATE ] CARDINAL A.C. CARDINAL ) but dismissed appeals concerning shorter periods ( PERSON v. The Attorney General of the GPE of The GPE [ DATE ] A.C. CARDINAL ; ORG ) v. The Minister of ORG ( GPE ) [ DATE ] A.C. CARDINAL ; and PERSON and PERSON v. The Minister of ORG ( GPE ) [ DATE ] ORG CARDINAL ) and held that save in exceptional circumstances , periods of pre - sentence detention should not be taken into account since , inter alia , “ the state of mind of the person ... during this earlier period is not the agony of mind of a man facing execution , but ... anxiety and concern of the accused”(Fisher , § DATE ) . In PERSON and PERSON , ORG stated , inter alia :

“ If a man has been sentenced to death , it is wrong to add other cruelties to the manner of his death ... In PERSON ... the [ ORG ] held that the execution after excessive delay was an inhuman punishment because it added to the penalty of death the additional torture of a long period of alternating hope and despair . It is not the delay in itself which is a cruel and unusual punishment ... , ' it is the act of hanging the man that is rendered cruel and unusual by the lapse of time ” .

ORG found that execution following inordinate delay after sentence of death violated LAW which provides that “ no one shall be deprived of his life or personal liberty except according to procedure established by law ” and that the reasons for the delay were immaterial ( PERSON v. ORG [ DATE ] CARDINAL S.C.R. CARDINAL , PERSON and Others v. the ORG of ORG [ DATE ] CARDINAL S.C.R. CARDINAL and Smt . PERSON v. State of GPE [ DATE ] CARDINAL S.C.J. CARDINAL ) .

GPE ORG has refused to accept claims that lengthy detention on death row violated the prohibition , contained in LAW to LAW , of cruel and unusual punishment , emphasising that the delay is due to the convicted person 's own decision to make use of all possibilities to appeal ( PERSON v. GPE , CARDINAL US CARDINAL ) .

ORG has held that NORP constitutional standards did not bar extradition to GPE of a defendant facing the death penalty ( PERSON v. GPE ( Minister of ORG ) , [ DATE ] CARDINAL S.C.R. CARDINAL ) . However , in DATE it changed its approach and held that if the person being extradited could face the death penalty , constitutional standards required that in all but exceptional cases assurances must be sought from GPE that the death penalty would not be imposed or , if imposed , would not be carried out ( GPE v. PERSON , [ DATE ] CARDINAL S.C.R. CARDINAL ) .


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

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

In DATE a new concept called “ tax asset stripping cases ” ( selskabstømmersager ) came into existence in GPE . It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous private limited companies within a short period , and for the sake of their own profit , “ stripping ” the companies for assets , including deposits earmarked for payment of corporation tax . The persons involved were usually intricately interconnected and collaborated about their economic criminal activities , which concerned very large amounts .

I.

On DATE ORG reported to ORG ( Statsadvokaten for ORG PERSON ) that allegedly , a person henceforth called ORG , and CARDINAL other persons had participated in the acquisition and stripping of CARDINAL private limited companies ( the ORG case ) . ORG made a reservation to increase the number of persons involved and submitted at the same time a note in which the applicant 's name figured and his role as vendor of private limited companies was described .

In DATE ORG ( PERSON ) issued a warrant of arrest against ORG , who was staying abroad .

On DATE ORG issued a search warrant for the premises of the applicant , who was neither provisionally charged ( sigtet ) nor charged ( tiltalt ) . The search was carried out on DATE and the applicant was interviewed by the police without being charged .

On DATE ORG was remanded in custody , from which he escaped on DATE . He was arrested in GPE in DATE , and served a sentence there before he was surrendered to the NORP police on DATE .

In the meantime ORG had questioned the applicant on DATE . An order for surrender of details on bank accounts in GPE was issued on DATE . Another search warrant against the applicant was issued by ORG on DATE . It was carried out on DATE , and the applicant was formally charged with tax asset stripping allegedly having been committed in CARDINAL cases during DATE with a risk of loss to the ORG of CARDINAL NORP kroner ( DKK ) . PERSON was charged with tax asset stripping in CARDINAL cases . The police also investigated other persons in connection with the case , but their criminal cases were conducted separately . In DATE the applicant gave permission that the police obtain details from his accounts with his bank in GPE . The latter and account details from the bank in GPE were submitted to the police in DATE .

On the prosecutions ' request a hearing was held before ORG on DATE in order to plan the course of the proceedings . Dates for the trial were agreed on . It appears from the court records that the judge asked counsel whether shorter interval between the dates of the hearings could be fixed so that the trial could be concluded faster . Counsel stated that this was not possible since they were occupied by other matters , including hearings already scheduled in other proceedings .

An indictment was issued by the prosecution on DATE and the trial before ORG commenced on DATE . CARDINAL hearings were held altogether . The applicant , ORG and CARDINAL witnesses were heard , including a state - authorised public accountant , who gave evidence over DATE in which he elaborated the audit reports , etc . In addition , a considerable amount of other documentary evidence was presented e.g. about questions such as constructions with NORP and foreign companies and money transaction in NORP and foreign banks ( in GPE , GPE and GPE ) . Each set of exhibits for the case took up CARDINAL ACARDINAL binders , which included CARDINAL audit reports , CARDINAL supplementary reports and CARDINAL statements of transaction prepared for the case by the state - authorised public accountant .

The closing speech of the applicant 's counsel took CARDINAL day , that of the ORG 's counsel a little more than two days , and that of the prosecutor DATE .

ORG , sitting with CARDINAL lay judges , met CARDINAL times and deliberated for altogether DATE . By judgment of DATE , which ran to CARDINAL pages , ORG convicted the applicant of participation in tax assets stripping as to ORG . He was sentenced to DATE imprisonment ; an amount of DKK CARDINAL was seized ; and in addition for an indefinite period , he was deprived of his right to establish or to become manager and/or member of a director 's board in a private limited company , or in a company or an association which would require public approval . ORG was convicted by the same judgment .

ORG rejected the applicant 's complaint that the length of the proceeding had exceeded a reasonable time , stating among other things :

“ ... on the material before it the court can not find it established that the investigation laid unnecessary idle during the periods , on which [ the applicant ] specifically has relied [ i.e. de facto from DATE until DATE ] .

Furthermore , the court notes that the nature and scope of the offences must be taken into account when assessing the total length of the proceedings ... In this connection it should be taken into consideration that the proceedings ... have shown , inter alia , that it has been time - consuming and difficult to procure various details for the case from foreign authorities and banks in general , i.e. also during the investigation , not least concerning [ the applicant ] . The length of the proceedings is not due only to the affairs of [ ORG ] , but also due to the need [ during the investigation and the trial ] of illuminating the role of [ the applicant ] Moreover , the investigation concerning both [ ORG and the applicant ] was rendered difficult by the fact that [ ORG ] had left GPE and stayed abroad without notifying the NORP authorities of his residence in the period from DATE until DATE escaped from custody and fled abroad in the period from DATE until DATE , whereupon he was furthermore remanded in custody and served a sentence in GPE from DATE until DATE . ”

On DATE the applicant lodged an appeal against the judgment to ORG ( PERSON ) , before which QUANTITY hearings were held . By judgment of DATE ORG upheld ORG judgment . The appeal court also rejected the applicant 's complaint that the length of the proceeding had exceeded a reasonable time . It stated inter alia :

“ The High Court finds that there are no major periods of time during the proceedings with the police , the prosecutor , ORG or ORG when the case has not been duly expedited . It should be noted that it is solely due to the circumstances of [ the applicant ] and his counsel that the case could not be tried by ORG in DATE . Accordingly , and in view of the nature and the scope of the crime , which has necessitated comprehensive investigation , the total length of the proceedings does not involve any violation of LAW . ” ORG

On DATE the applicant requested leave to appeal against the High Court judgment to ORG ( Højesteret ) . His request was refused by the Leave to Appeal Board ( Procesbevillingsnævnet ) on DATE .

II .

In DATE the Police in ORG with the assistance from a special crime squad carried out investigation of several tax assets stripping cases , which resulted inter alia in CARDINAL persons being indicted in DATE . As part of the investigations accountants had been asked to draw up statements of accounts . Those were submitted on DATE and led the police 's attention to other persons involved . On DATE the applicant was provisionally charged with participation in tax assets stripping having been committed in DATE and by indictment of CARDINAL DATE prosecution was initiated against him and DATE coaccused ( the NORP case ) . On DATE the indictment was forwarded to ORG ) although the investigation had not been completed .

It emerges from the court records of DATE that the parties discussed the scheduling of the trial . The applicant 's counsel was not able to attend the trial until after DATE and some of the other counsel were unable to appear until after DATE .

By request of counsel for CARDINAL co - accused , on CARDINAL DATE ORG decided to transfer the case to ORG being the proper venue . The public prosecution appealed in vain against this decision . Thus , ORG found against the public prosecution on DATE , and the latter 's request for leave to appeal to ORG was refused by the Leave to Appeal Board on DATE .

ORG received the case on DATE .

On DATE an audit “ liquidity statement ” requested by the prosecution was completed and included in the case file .

At a court session held on DATE the trial was scheduled to commence in DATE . From the court records of CARDINAL DATE it emerges that the trial was to take place in another building rented for the purpose of trying a number of major cases before ORG , and that therefore the trial could not start until DATE . CARDINAL hearings already scheduled for DATE were maintained and reserved for various requests made by counsel . It appears , however , that the said CARDINAL hearings were subsequently cancelled . A supplementary indictment was issued on DATE .

In the period DATE and DATE altogether CARDINAL court sessions were held before ORG . The applicant , the co - accused , and CARDINAL witnesses were heard . In addition , the above “ liquidity statement ” and a considerable amount of other documentary evidence were presented , thus CARDINAL ACARDINAL binders were read out during the trial .

On DATE the case was set down for judgment , which was pronounced on DATE and ran to CARDINAL pages , and by which the applicant and the co - accused were convicted . As to the metering out the applicant 's sentence , the court found that the sentence previously imposed on the applicant , upheld by ORG on DATE ( see under PERSON ) , would not have been increased , had the CARDINAL trials against him been joined . Thus , no additional sentence was imposed on the applicant . He was , however , deprived of his right to establish or to become manager and/or member of a director 's board in a private limited company , or in a company or an association which would require public approval .

“ The [ crimes ] were committed in the period from DATE until DATE . Prosecution was initiated by the indictment of DATE and the supplementary indictment of DATE . The defendants were originally indicted before ORG , but the case was referred to ORG by order of CARDINAL DATE passed by ORG . This order was appealed against to ORG , which dismissed the appeal by order of DATE . On CARDINAL DATE the Leave to ORG refused to grant the prosecutor leave to appeal to ORG . ORG received the case on DATE , and during a court session held on DATE dates were fixed for the trial . [ The court sessions scheduled to take place in DATE ] were later cancelled , and the trial took place as from CARDINAL DATE and onwards .

According to the information available , the time spent on investigation and initiation of prosecution by the prosecutor can not be blamed the latter . In this connection , importance has been attached to the not uncomplicated nature of the case and to the need for investigation abroad . Accordingly , LAW has not been breached ”

The applicant did not appeal against the judgment .


Violation of Article 8 - Right to respect for private and family life;Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicant was born in DATE and lives in GPE .

The applicant claimed that until DATE he and his family used to live in GPE ( GPE ) in a detached house with a yard ( area : CARDINAL sq . m ) . This property was registered in the name of the applicant ’s wife under plot no . CARDINAL , sheet / plan CARDINAL . On CARDINAL DATE , as the NORP forces were advancing , the applicant and his family fled their home leaving behind all its contents , including precious personal belongings .

The applicant also claimed that he was the owner of the following plots of land in northern GPE :

( a ) GPE / GPE , plot no . CARDINAL , sheet / plan CARDINAL , field , area : CARDINAL sq . m ;

( b ) ORG , plot no . CARDINAL/CARDINAL , sheet / plan CARDINAL , field , area : CARDINAL sq . m ;

( c ) Kyrenia / Livera , plot no . DATE , sheet / plan CARDINAL , field , area : CARDINAL sq . m ;

( d ) Kyrenia / Livera , plot no . DATE , sheet / plan CARDINAL/CARDINALWCARDINAL , field , area : CARDINAL sq . m ;

( e ) Kyrenia / Livera , plot no . DATE , sheet / plan CARDINAL/CARDINALWCARDINAL , field , area : CARDINAL sq . m.

In support of his claim of ownership the applicant produced the relevant certificates of registration and affirmations of ownership issued by GPE .

The applicant alleged that from DATE he had not been able to return to his house and had been continuously prevented from exercising his property rights and enjoying his properties .


The applicant , Mr E. Strömblad , is a NORP national , born in DATE and living in GPE , GPE . He is represented before the ORG by Mr O. GPE , a lawyer practising in ORG .

The respondent Government are represented by their Agent , Mr PERSON of ORG .

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

The applicant is the father of CARDINAL children born in DATE , DATE and DATE respectively . The children live permanently with their mother from whom the applicant is divorced . Since they did not live with both their parents , each of his children were entitled under LAW ( lagen om underhållsstöd , lag CARDINAL:CARDINAL -hereinafter “ the LAW ” , which entered into force on DATE ) to a DATE maintenance allowance ( underhållsbidrag ) of SEK CARDINAL,CARDINAL from ORG . LAW obliged the parent who under civil law was liable for maintenance to repay , in whole or in part , the community ’s costs for the maintenance support provided to the children . The amount to be repaid was determined as a percentage of the income of the person liable for maintenance . If the liable parent had CARDINAL children , as was the applicant ’s case , he should repay PERCENT of his income for each child .

On DATE ORG ( försäkringskassan -hereinafter “ the Office ” ) of GPE decided that the applicant should repay a total sum of SEK CARDINAL,CARDINAL every month for the community ’s costs for the maintenance support with respect to his CARDINAL children . In other words , the applicant should repay SEK CARDINAL per month for each child . In accordance with section CARDINAL of LAW ( as in force at the relevant time ) , the ORG determined the amount of the applicant ’s income as specified in the most recent tax assessment decision .

By letter of DATE the applicant requested the ORG to reconsider its decision . He argued that the ORG had failed to estimate correctly his ability to pay the amount in question and should have based its calculations on his current income , not that indicated in the most recent tax assessment decision . On DATE the ORG found that there was no ground for altering its earlier decision .

The applicant appealed to ORG ( länsrätten ) of GPE . He maintained that his income was insufficient for paying the amount fixed by the ORG . He pointed out that since the calculations regarding his ability to repay maintenance support were based on his income before LAW came into force , the decision had a retroactive effect and was thus incompatible with LAW ( Regeringsformen ) . Furthermore , the ORG had calculated his income erroneously thereby obtaining a result which did not reflect his real ability to repay the maintenance support .

In his appeal the applicant also requested ORG to hold an oral hearing in the case . He wished to participate in person at an oral hearing in order to present arguments on the issue of principle in the case and on the great economic impact a judgment could have on him . He underlined that his main argument in the case was the unconstitutional retroactive application of LAW by the ORG .

On DATE ORG informed the applicant as follows :

“ The proceedings before [ the court ] consist of a written procedure . They may include an oral hearing with regard to a certain issue , when there is reason to assume that such a measure would be to the benefit of the proceedings or that it promotes a speedy determination of the case . An oral hearing shall be held if requested by an individual party to the proceedings , if such a hearing is not unnecessary and there are no particular reasons against it ...

... It appears that you do not wish to submit any new information at the hearing but rather conduct a legal argumentation about the retroactivity of the legislation concerned and on how your deficit from earlier GPE taxation should be taken into account when determining the amount that should be repaid . Having regard to these circumstances [ the court ] finds that the examination of the case is limited to issues concerning the application of the law . Therefore , [ the court ] finds an oral hearing unnecessary .

[ The court ] hereby gives you the opportunity to submit , no later than DATE , your final observations in the case . If no response is submitted to [ the court ] , the case will be determined on the basis of the material available . ”

The applicant made further submissions in the case and reiterated his request for an oral hearing , claiming that the court had failed to give any special reasons for dispensing with an oral hearing .

On DATE ORG delivered its judgment confirming the ORG ’s decision . It found that the calculation of the applicant ’s income was done in accordance with the rules set out in LAW . While it was true that the calculation of the applicant ’s income was based on the most recent tax assessment decision , the amount that he was obliged to repay concerned future maintenance support . Therefore , the court did not consider the decision as retroactive within the meaning of the LAW .

As regards the applicant ’s request for an oral hearing the ORG held :

“ The court can not omit to hold an oral hearing without having found after careful consideration that this is unnecessary or that there are special reasons against doing so . Considering [ the applicant ’s ] arguments in the case , [ the court ] finds that its examination is limited to issues concerning the application of the law . In view of this [ the court ] considers an oral hearing unnecessary . ”

The applicant appealed against the judgment to ORG ( kammarrätten ) in GPE , complaining about the lack of an oral hearing before ORG and maintaining all his other submissions and requests . By decision of CARDINAL DATE ORG refused leave to appeal .

The applicant appealed to ORG ( regeringsrätten ) which , on DATE , also refused leave to appeal .

LAW , which entered into force on DATE , applied in relation to maintenance support and duty of repayment . LAW replaced previous legislation in the relevant area .

According to LAW ( as in force at the relevant time ; DATE ) a child was entitled to maintenance support , at a rate of SEK CARDINAL,CARDINAL per month , if the parents did not live together . The parent who was liable under civil law for maintenance should repay to the ORG , in part or in whole , the amount corresponding to the maintenance support . According to its sections CARDINAL and DATE , the duty of repayment was determined as a certain percentage of the liable parent ’s income according to the most recent tax assessment decision after a deduction of SEK CARDINAL,CARDINAL . If the liable parent had CARDINAL children who received maintenance support , he or she should repay PERCENT of his income for each child . The duty of repayment should be reviewed when a new decision on DATE tax assessment had been taken and when there was a change in the grounds for the applicable percentage .

In the event that the liable parent considered that he or she was unable to to repay the amount fixed , he or she could appeal for respite for discharge of the duty . If there were exceptional reasons relating to the liable parent ’s economic or personal circumstances , ORG could remit the debt , entirely or partially , upon application from the liable parent .

A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and ORG . Appeals to the CARDINAL latter courts are subject to leave to appeal proceedings .

The procedure in the administrative courts is governed by the provisions of ORG ( förvaltningsprocesslagen , lag CARDINAL:CARDINAL -hereinafter “ the DATE LAW ) . Section CARDINAL provides :

“ The proceedings are in writing .

An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .

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

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .

According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .

It was further stated , in respect of the third paragraph of section CARDINAL , that a party ’s request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party ’s understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) .


ZEHNALOVÁ AND ZEHNAL v. THE CZECH REPUBLIC

The applicants , PERSON and her husband , Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in PERSON . They were represented before the Court by PERSON , of ORG . At the hearing on DATE the ORG representative was assisted by Mr PERSON and PERSON , advisers . The respondent Government were represented by PERSON , GPE representative before ORG , assisted by PERSON , PERSON , PERSON , Mr J. Just and PERSON , advisers .

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

The first applicant is physically disabled .

A large number of public buildings and buildings open to the public in the applicants’ home town are not equipped with access facilities for people with disabilities ( people with impaired mobility ) .

On DATE the first applicant applied to ORG ( městský úřad ) under LAW , complaining that a number of public buildings and buildings open to the public in PERSON did not comply with the technical requirements laid down in Decree no . PERSON ( amended by Decree no . CARDINAL ) and in LAW ( Law no . CARDINAL , amended by Law no . CARDINAL ) . On DATE she sent a letter to the same effect to ORG ( okresní úřad ) . On DATE the head of ORG informed her in reply that CARDINAL certificates of approval issued in respect of the buildings concerned would be reviewed . On DATE the Mayor of PERSON informed her that ORG had instructed a committee to contact disabled people ’s organisations in order to take the necessary measures to improve the situation regarding disabled access .

Following delays by ORG in initiating the review procedure provided for in LAW , the first applicant asked ORG ( ministerstvo hospodářství ) to conduct a review of its own motion . On DATE she was informed that her case would be “ dealt with by ORG in accordance with the law ” . Nevertheless , ORG did not set any deadline and ORG dismissed or took no action on most of the complaints . Although some of the obstacles complained of have since been removed , the applicants maintain that that has not been the result of pressure from the authorities . The Government contend that ORG , which had ordered an inspection , was gradually examining the CARDINAL cases before it and that ORG had examined a large number of the first applicant ’s suggestions . In their submission , the situation could not be remedied immediately , regard being had to the technical features of the existing buildings and the considerable cost of renovations . However , the Government point out that some improvements have been made where possible , for example as a result of negotiations with the owners of the buildings .

On DATE the applicants applied to ORG ( krajský soud ) under LAW for exemption from the payment of court fees . They also asked to have a lawyer assigned pursuant to LAW in order to prepare their applications for the review of the certificates of approval for CARDINAL buildings , which they had learned had been issued by ORG ( odbor výstavby městského úřadu ) before DATE . According to the Government , the complaints the applicants were intending to lodge concerned general matters of public interest and were accordingly not admissible in the administrative courts . The applicants dispute that assertion , maintaining that their complaints related solely to obstacles in their home town with which they were confronted on a DATE basis .

On DATE ORG refused the applicants’ application on the ground that it had no prospect of success within the meaning of LAW as it did not satisfy the requirements laid down in LAW and the applicants had not been parties to the proceedings before the administrative authorities which had resulted in the issuing of the certificates of approval .

On DATE the applicants appealed to ORG ( Vrchní soud ) . They again asked to be exempted from the court fees and to have a lawyer assigned , relying , in particular , on LAW základnich práv a svobod ) and on LAW . They also called on ORG to stop discrimination against people with disabilities .

In a decision of DATE the ORG declined jurisdiction on the ground that , pursuant to Article CARDINAL § CARDINAL of LAW , no appeal lay against ORG decision .

On DATE the applicants appealed to ORG . They complained , in particular , that although Decree no . CARDINAL laid down the general technical specifications for public buildings or buildings open to the public with a view to ensuring that people with impaired mobility could have access to and make use of them , many buildings in PERSON did not comply with those requirements and were therefore not accessible to people with disabilities . They mentioned , in particular , the post office , the police stations , the customs office , ORG , the district social - security office , cinemas , ORG , various lawyers’ offices , most specialist ORG surgeries and the town swimming pool . They also submitted that their applications for a review of the certificates of approval had not been dealt with in a competent or satisfactory manner by the administrative authorities . They asked the court to review the constitutionality of section CARDINAL(CARDINAL ) of LAW , by which they were prevented from taking part in proceedings before the administrative authorities at the construction stage , and also to review the decisions by which ORG and ORG had refused to exempt them from the court fees and to assign a lawyer to present their case – decisions which , in their submission , amounted to a violation of LAW . According to the Government , the purpose of their appeal was simply to ascertain whether ORG decision against them had precluded the possibility of judicial review of their case .

On DATE the applicants applied for legal aid and asked to have a lawyer assigned to represent them in ORG . On DATE ORG informed them that they satisfied the requirements for obtaining legal aid but would receive it only if their constitutional appeal was not dismissed on procedural grounds or as being unfounded , as provided in section CARDINAL of LAW .

In a decision of DATE ORG dismissed the ORG appeal . It noted , firstly , that they were not entitled to challenge the constitutionality of LAW of LAW since that provision had not been applied by ORG , and , secondly , that the decisions complained of did not disclose any breach of constitutional law or of any other legal provisions or international treaties .

By section DATE , a constitutional appeal may be lodged by any natural or juristic person who claims that a final decision given in proceedings to which he or she was a party , or a measure or any other action taken by a public authority , has infringed his or her fundamental rights or freedoms as guaranteed by a constitutional law or an international treaty within the meaning of LAW . The appeal must be lodged within DATE of the date on which the final decision was served in respect of the final remedy provided for by law or , if no such remedy exists , of the date of the event forming the subject matter of the constitutional appeal .

By section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL ) , the parties to proceedings relating to building work are the builder and the natural and juristic persons with a right of property or other rights over the land or any adjacent buildings which might be affected by the issuing of a building permit . LAW ) provides that the parties to proceedings relating to the issuing of a certificate of approval are the builder and the user of the building , if his or her identity is already known .

Section CARDINAL(CARDINAL ) provides that the building authority should not issue a certificate of approval in respect of a public building if people with disabilities have no access to the areas open to the public and are therefore unable to use them .

Decree no . CARDINAL/CARDINAL on the general technical specifications for the use of buildings by people with impaired mobility , subsequently replaced by Decree no . CARDINAL of ORG , which came into force on DATE , contains provisions designed to ensure proper disabled access to public buildings and buildings open to the public ( such as : offices used for administrative or management purposes or for the provision of services ; shops ; catering facilities ; sports facilities ; cultural , health and welfare institutions ; public communications facilities ; and hotels and motels ) and the elimination of all architectural barriers .

By LAW , a party to proceedings who satisfies the requirements for exemption from court fees may have a lawyer assigned where this is necessary for the protection of his or her rights .

By LAW , the presiding judge may fully or partly exempt a party to the proceedings from the payment of court fees where this is justified by the party ’s circumstances , provided that the action brought is not arbitrary or manifestly devoid of any prospect of success .

Article CARDINALb § CARDINAL provides that an administrative appeal ( správní žaloba ) against a decision by an administrative authority must be lodged within DATE of the decision in issue , except where the law provides otherwise .

By LAW , an administrative appeal may be lodged by a natural or juristic person who , as a party to proceedings before an administrative authority , claims to have been adversely affected by a decision taken by that authority . An appeal may also be lodged by a natural or juristic person who was not treated as a party to the proceedings before the administrative authority but should have been .

LAW and CARDINAL of LAW provides that a final decision by an administrative authority may be reviewed by a higher administrative authority acting of its own motion or otherwise . The administrative decision in issue must be quashed or varied where it is found to have breached the law .

LAW guarantees the right to social and medical assistance . It provides that , with a view to ensuring the effective exercise of the right to social and medical assistance , the Contracting Parties are to undertake to : ( CARDINAL ) ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources , in particular by benefits under a social - security scheme , is granted adequate assistance , and , in case of sickness , the care necessitated by his condition ; ( CARDINAL ) ensure that persons receiving such assistance do not , for that reason , suffer from a diminution of their political or social rights ; and ( CARDINAL ) to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent , to remove , or to alleviate personal or family want .

Recommendation No . R ( CARDINAL ) CARDINAL of ORG on a coherent policy for people with disabilities , adopted on DATE , defines a handicap as

“ ... a disadvantage , for a given individual , resulting from an impairment or a disability , that limits or prevents the fulfilment of a role that is normal ( depending on age , sex , and social and cultural factors ) for that individual ” .

The Recommendation urges member ORG to “ guarantee the right of people with disabilities to an independent life and full integration into society , and recognise society ’s duty to make this possible ” so as to ensure “ equality of opportunity ” for people with disabilities . The public authorities should aim , inter alia , to enable people with disabilities “ to have as much mobility as possible , and access to buildings and means of transport ” and “ to play a full role in society and take part in economic , social , leisure , recreational and cultural activities ” .

As regards leisure time and cultural activities in particular , the LAW states :

“ All leisure , cultural and holiday activities should be made accessible to people with disabilities . ... Structural , technical , physical and attitudinal obstacles which limit the enjoyment of the above activities should be removed . In particular , access to cinemas , theatres , museums , art galleries , tourist venues and holiday centres should be improved ... Cultural and leisure venues should be planned and equipped so that they are accessible and can be enjoyed by people with disabilities . ”

The ORG also states : “ The exercise of basic legal rights of people with disabilities should be protected , including being free from discrimination . ”

In addition , Recommendation CARDINAL ( DATE ) on rehabilitation policies for the disabled , adopted by ORG of ORG DATE , emphasises : “ ORG has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives . ” In furtherance of that aim , it calls on the governments and agencies concerned “ to strive for and encourage genuine active participation by disabled people ... in the community and society ” and , to that end , to guarantee , amongst other things , “ ease of access to buildings ” .

The revised NORP Social Charter , adopted by ORG on DATE DATE and opened for signature on DATE , provides in DATE , entitled “ The right of persons with disabilities to independence , social integration and participation in the life of the community ” :

“ With a view to ensuring to persons with disabilities , irrespective of age and the nature and origin of their disabilities , the effective exercise of the right to independence , social integration and participation in the life of the community , the Parties undertake , in particular :

NORP to promote their full social integration and participation in the life of the community , in particular through measures , including technical aids , aiming to overcome barriers to communication and mobility and enabling access to transport , housing , cultural activities and leisure . ”