CASE OF ISLAMIC REPUBLIC OF IRAN SHIPPING LINES v. TURKEY

Preliminary objections dismissed (locus standi - six-month period);Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lefèvre

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

By a charter of CARDINAL DATE , the applicant company chartered a NORP - owned vessel called the Cape Maleas ( “ the vessel ” ) . The charter party was on an amended ORG time - charter form , and was for a time - charter voyage to the south NORP ports . The duration of the voyage was stated to be DATE and the purpose to carry general cargo , steels and commercial containers .

By agreement between the parties , namely the applicant company and the owner of the vessel , ORG , on DATE the charter party became subject to “ Addendum No . CARDINAL ” . This provided that the applicant charterer could load QUANTITY of “ FAC cargo . “ FAC denotes cargo which falls within the “ Class DATE Explosives ” category of the International Maritime Dangerous Goods Code .

The applicant company ordered the vessel to proceed to the port of GPE in GPE and , on DATE , further cargo commenced loading . This consisted of general cargo but also arms , ammunition and military spare parts which fell within the “ IMCO Class CARDINAL ” category ( “ the arms cargo ” ) .

The applicant company ’s agent in GPE drew up bills of lading in respect of the cargo , including the arms cargo ( “ the bills of lading ” ) . These bills of lading described the arms cargo as “ special equipment ” , followed by a reference to a numbered contract . The port of discharge for the “ special equipment ” was specified as Tartus in GPE . The shipper was stated to be “ NORP ” and the consignee as “ to order ” .

The applicant company ’s agent in GPE also prepared a manifest of cargo . Like the bills of lading , this described the arms cargo as “ special equipment ” , and gave the port of discharge as Tartus . The applicant company at all times intended that the arms cargo should be discharged at the port of PERSON in GPE . The vessel sailed from GPE at TIME on DATE and was ordered to proceed to GPE in GPE in order to load further cargo . In order to reach GPE from GPE , the vessel had to transit through the LOC .

On DATE , at TIME , the vessel was about to commence transit through the LOC . Before entering the LOC the master of the vessel requested the assistance of a pilot for navigation through the LOC . The vessel was flying the international signal flag to indicate that it carried dangerous cargo .

As a result of information received by the NORP customs authorities from a NORP vessel which had recently arrived from GPE , the NORP authorities believed that the arms cargo on board the vessel was bound for GPE , from where it would be smuggled into GPE .

According to the NORP authorities , the vessel was first sighted when it was QUANTITY outside the LOC . After the vessel had entered the LOC , a pilot went on board and invited the master to declare any hazardous materials which were on board . The master duly did so , and the vessel proceeded for TIME through the LOC before the pilot instructed the master to stop the engines .

The NORP coastguard and other NORP authorities boarded and seized the vessel . Since the waters were rough at the point where the vessel was stopped , it was towed by a military boat to the NORP port of Büyükdere . All parties to the case subsequently proceeded on the basis that the seizure of the vessel had taken place in the LOC , governed by LAW of DATE .

At Büyükdere the vessel was searched and the bills of lading and manifest of cargo examined . The NORP authorities discovered the arms cargo and questioned the master of the vessel . The statement entitled “ LAW of Facts ” , in which the NORP authorities summarised their allegations and the actions which they had taken in respect of the vessel , was prepared and signed by all the officials who were present at the seizure and search of the vessel . The master , the first officer and the radio operator of the vessel were taken into custody by the NORP authorities .

On DATE statements were taken from the master and first officer in the form of affidavits . These formed part of the file which was submitted by the public prosecutor to a single judge of ORG .

On DATE , having examined the file and citing , inter alia , Articles CARDINAL and CARDINAL of LAW , a single judge of ORG approved the arrest of the vessel and the detention of its crew , namely the master , the first officer and the radio operator . The judge referred in his decision to “ systematic weapon smuggling ” and stated that the “ evidence confirmed that the above - mentioned smuggled weapons could be used against the security of GPE ” .

On DATE that decision was served on the lawyer instructed on behalf of the vessel and the master . The following day , the lawyer filed an objection against the decision , setting out the relevant provisions of LAW and noting that GPE was not in a state of war with any country within the meaning of the provisions of its LAW and that there was neither a threat nor a risk of war .

On DATE ORG dismissed that objection .

On DATE ORG at ORG indicted the master , the first officer and the radio officer of the vessel , charging them with organised transportation of firearms and ammunition . In the public prosecutor ’s view , GPE was at war with GPE . He cited various decrees of the NORP parliament which had authorised the sending of troops to GPE , and stated that :

“ ... notwithstanding the ceasefire achieved through the efforts of ORG putting an end to the armed conflict , no treaty having yet been signed , the state of war is ongoing from a legal point of view . Consequently , it has become necessary to enforce LAW . ...

Pursuant to [ LAW ] , the commercial vessels of countries at war with GPE do not enjoy free passage through the LOC . Therefore , there being no right of unrestricted passage through the LOC of a ship flying the NORP flag and laden with weapons , ORG may exercise , for its own security and based on its sovereign rights and LAW , control over that ship and the weapons contained therein . ”

NORP Since the vessel was registered as a NORP ship and flew the NORP flag , the NORP authorities concluded that they had been entitled under LAW to seize the vessel and to launch proceedings for arms smuggling .

During DATE and DATE the government of GPE sought the release of the vessel and its cargo through high - level diplomatic meetings . The issue was raised at presidential level and , on CARDINAL DATE , the NORP ambassador to GPE visited the Deputy Minister for ORG to deliver copies of CARDINAL of the bills of lading and of LAW . This was intended to establish that the arms cargo was in fact being carried on behalf of ORG .

On DATE the NORP Minister for ORG wrote to ORG , giving an account of the meetings which had taken place , enclosing copies of the bill of lading and LAW and offering to obtain further information on the “ special equipment ” listed on the bill of lading .

On CARDINAL DATE the lawyer acting on behalf of the owners and the master of the vessel pointed out to ORG that the assumption that GPE and GPE were at war with each other was the “ crucial point ” of the case . He requested ORG to enquire immediately of ORG whether a state of war existed . He also submitted that the Presidency of the ORG should be asked whether there had been a declaration of war .

On DATE the lawyer filed another application with the court reiterating that GPE was not at war with any country ( GPE included ) and seeking the release of the master on bail .

On DATE the lawyer submitted a petition to ORG asking the court to rephrase the question which it had put to ORG . He objected to the question which had been put , namely “ whether the peace operations in GPE have ended with a treaty of peace ... ” , and submitted that the proper question to be asked was “ whether GPE is in a state of war or not with ORG .

In another communication , dated CARDINAL DATE , the applicant company ’s lawyer sent ORG translations of the charter party and the bills of lading . He explained that the nature of a time charter was similar to a lease , and that charterers had control over the cargo and its documentation .

ORG responded to the questions posed by ORG in CARDINAL letters of CARDINAL and CARDINAL DATE . The letters stated :

“ ... as there is no ‘ state of war’ between GPE and any other country , including ORG , it is obvious that the seizure of the ship can not be based on Articles CARDINAL and CARDINAL of LAW . In fact , ships carrying the flag of ORG have always traversed the LOC freely .

NORP In the Note sent to our Ministry by the NORP embassy in GPE , it was stated that the arms found on the ship belonged to GPE . This had been certified by the NORP authorities on several occasions .

On the other hand , the NORP authorities stated that the said arms had officially been sold to GPE by an agreement signed between GPE and GPE in DATE and that the arms had been loaded in GPE .

Except for the limitations set out in ORG CARDINAL and CARDINAL of LAW in ‘ time of war’ , commercial ships flying foreign flags enjoy full freedom of transit passage at times of peace , whatever their flag and cargo may be . As stated above , it is impossible to invoke the ‘ time of war’ provisions of LAW in this case because no state of war with ORG exists . Moreover , in accordance with customary international and treaty laws , ships have the ‘ right of innocent PERSON through the territorial waters of other countries ... ”

On DATE ORG issued a decision for the release of the master on bail , but ordered the seizure and confiscation of the vessel and its cargo on suspicion of their being intended for use for the commission or preparation of a crime .

On DATE the public prosecutor filed his observations on the merits . He maintained his earlier position , relying upon LAW , contending that the vessel and the arms cargo should be seized and the master imprisoned .

By DATE the applicant company had concluded that attempts to secure the release of the vessel and its cargo through diplomatic negotiations were unlikely to succeed . The applicant company applied through its NORP lawyer , PERSON , to intervene in the proceedings before ORG . In its application , the applicant company set out its interest in the case as the owner of the cargo and stressed that the arms cargo was being carried as part of a normal and legal commercial transaction and that GPE was not at war with any country . It therefore asked for the unconditional release of the vessel and its cargo . The court ordered that the applicant company be joined as an intervening party in the proceedings .

On DATE the then Prime Minister of GPE , PERSON PERSON , issued a certificate which stated :

“ GPE is not in a state of war with any country , LOC included ... ”

By a judgment of CARDINAL DATE , ORG acquitted the first officer and the radio operator , but convicted the master of the vessel of importing arms into GPE without official permission and sentenced him to DATE imprisonment and a fine of MONEY ( TRL ) . The court ordered that the arms cargo and the vessel be confiscated pursuant to the final paragraph of CARDINAL of PERSON no . DATE , that all the cargo other than the arms be returned to the applicant company and that the master bear the costs of the court hearing . With reference to a judgment of ORG in a similar case , ORG held that in the present case there was bad faith on the part of the applicant company since the bill of lading gave inaccurate information as to the contents of the cargo and the route of the vessel . It noted that there was no justification for not informing the NORP authorities of NORP weapons passing through the LOC . The court further considered the following in relation to LAW :

“ The second question is whether the NORP authorities were entitled to seize the munitions and weapons . Pursuant to the relevant LAW , the passage of ships carrying firearms and owned by any ORG with which GPE is in a state of war is forbidden .

The other important issue is whether GPE is in a state of war with ORG , or in other words , whether a peace agreement has been reached after the war . It is known that GPE has engaged in war with ORG , as a result of which GPE has been divided into CARDINAL sections , that GPE has been established , that ORG has not recognised GPE and until now no agreement has been reached , and that inter - State negotiations are in progress .

Therefore , the letter of ORG ... and the letter of the Prime Minister ... were disregarded . ”

The judgment went on to refer to the PERSON case , concerning another vessel , and concluded that “ the existence of a state of war has been confirmed ” .

Following the judgment of ORG , the applicant company paid the hire charge and expenses due to the owner and the charter party in the sum of CARDINAL,CARDINAL,CARDINAL.CARDINAL United States dollars ( ORG ) . Although the judgment of ORG had ordered the return of the non - arms cargo to the applicant company , it was not returned and , by an order of CARDINAL DATE , ORG granted an injunction to the owner of the vessel which imposed a lien of GPE MONEY over the cargo to secure the unpaid hire . The owner of the vessel , ORG , then commenced enforcement proceedings for encashment of the lien over the cargo which belonged to the applicant company .

On DATE the applicant company appealed against the judgment of ORG . The applicant company disputed the court ’s conclusion that a state of war existed between GPE and GPE . The ground of appeal also questioned the legitimacy of the court ’s reliance on the earlier GPE case , and pointed out that the arms cargo had only been in transit through the LOC .

By a decision of DATE , ORG quashed ORG judgment . It held that there was no material evidence in the file indicating that the arms would be discharged from the vessel in GPE . As regards the applicability of the provisions of LAW , ORG held :

“ ... that the state of war mentioned in LAW did not exist as also evidenced by the letters of ORG and the Prime Minister which explicitly state that ‘ GPE is not at war with any country , including ORG ... and that there is no room for application of LAW of LAW . ... ”

The case was remitted to ORG for retrial .

In an application of CARDINAL DATE , pending the retrial of the master of the vessel before ORG , the applicant company sought removal of the lien which had been imposed by ORG over the cargo .

On DATE ORG refused the applicant company ’s request , so on DATE the applicant company agreed to pay the owner some of the hire charges , without prejudice as to liability . In return , the owner agreed to relinquish its lien on the non - arms cargo . Under that agreement the applicant company had to pay PERCENT of the hire charge in respect of the period from DATE to CARDINAL DATE inclusive ( GPE CARDINAL,CARDINAL,CARDINAL.CARDINAL ) . The applicant company also agreed to pay PERCENT of future charges , as and when the payments fell due . The owner provided the applicant company with a guarantee to repay the sum of GPE CARDINAL,CARDINAL,CARDINAL.CARDINAL . The applicant company considered that it was obliged to pay the hire charges due , otherwise ORG and the owner would not have released the vessel and its cargo .

On DATE ORG acquitted the master on retrial . An appeal by the public prosecutor against that judgment was dismissed by ORG in a decision of CARDINAL DATE , which was approved on CARDINAL DATE .

On DATE ORG ordered the release of the vessel and the arms cargo . The vessel left GPE on DATE and was returned to the owner by the applicant company under the terms of the charter party on DATE .

In a written application of DATE , the applicant company brought an action before ORG claiming TRL CARDINAL ( equivalent to ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ) plus interest against ORG and ORG , with reference to ORG and ORG . The applicant company based its claim on LAW and submitted that the seizure and detention of the vessel and its cargo had been unjustified . It argued in this connection that the arms and ammunition had belonged to GPE , that the vessel had been wrongfully impounded for DATE , TIME and , as a result , it had had to pay ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL to the owner , ORG CARDINAL,CARDINAL.CARDINAL in fuel charges and ORG ORG in harbour fees .

The application went on to distinguish this case from the PERSON case , and to explain the circumstances in which the applicant company had been forced to pay the hire charges and other expenses to the owner of the vessel .

On DATE a first expert report was submitted to ORG following its interlocutory order of CARDINAL DATE . The experts advised that the applicant company ’s claim should be declared inadmissible , principally on the basis that the applicant company had chosen voluntarily and without legal compulsion to pay the hire charges under the charter party .

The applicant company objected to the first report and ORG ordered the preparation of a second expert report on CARDINAL DATE .

On DATE the second expert report was submitted to the court with the conclusion that the applicant company ’s claim should be dismissed . This second panel of experts considered that the owner of the vessel , but not the applicant company , might in appropriate circumstances claim compensation from ORG . They expressed the opinion that the applicant company ’s claim might succeed in relation to dock and fuel expenses incurred , as well as supplementary losses LAW CARDINAL of LAW , but that the claim in respect of hire charges should fail .

On DATE the applicant company filed an objection against the second report and requested the court to rule on the case without obtaining a further report , or alternatively to order a third expert report .

By a decision of DATE , ORG dismissed the applicant company ’s claim for compensation , holding that the vessel was not a merchant vessel since it was carrying , in part , a cargo of arms . It considered that the security authorities had merely carried out their statutory duty to investigate serious allegations of arms smuggling . The court therefore ruled that there had been no breach of LAW or of NORP law , in particular LAW .

On DATE the applicant company appealed .

On DATE ORG dismissed the appeal and upheld the judgment of ORG . A request by the applicant company for rectification of that decision was rejected by a new decision of ORG of DATE , served on the applicant company on DATE .

The charter party provided , inter alia , that any dispute arising under it should be referred to arbitration in GPE . As a result of the seizure and subsequent detention of the vessel and its cargo by the respondent government , a dispute arose between the applicant company and the owner of the vessel concerning the hire charges and other expenses paid by the applicant company .

Following arbitration proceedings in GPE , on DATE the arbitration panel decided that the charter party had been frustrated by ORG decision of CARDINAL DATE . The applicant company therefore recovered from the owner of the vessel the hire charges and other expenses which had been paid in respect of the period after DATE , but was unable to recover CARDINAL which it had paid or which it thereupon had to pay to the owner in respect of the period between the seizure on CARDINAL DATE and CARDINAL DATE .

Meanwhile , the owner of the vessel , ORG , brought an action in ORG in GPE seeking a lien on the cargo for the hire charges . In a decision of CARDINAL DATE ORG accepted the owner ’s claim on the ground that it was owed freight charges .

The cargo receiver , ORG , also brought an action in the ORG claiming CARDINAL in damages from ORG on behalf of ORG and ORG . It submitted that it had lost revenue as a result of the detention of its merchandise carried on the vessel and that new commercial goods had been purchased in order to replace the seized merchandise .

In a judgment of DATE , ORG dismissed that claim on the grounds that the seizure of the vessel had been lawful since the arms cargo was not clearly indicated on the bill of lading . On appeal by the plaintiff , ORG quashed the judgment . Relying on the outcome of the criminal proceedings , ORG noted that the goods in question were not contraband or of a kind requiring them to be confiscated . It accordingly held that the defendant must be liable for the damage resulting from the wrongful confiscation of the goods .

In a judgment of DATE , the ORG confirmed its earlier judgment and held that the plaintiff ’s claim must be dismissed on the grounds that the seizure and detention of the vessel had been in compliance with domestic law and LAW governing the LOC . Taking into account the fact that the vessel had been sailing under the NORP flag , and the inconsistency between the cargo and the documents , the court considered that the seizure of the vessel had been lawful . The court further noted that ORG had acted with the aim of preventing activities designed to undermine it . The plaintiff again appealed against that judgment .

On DATE ORG sitting as a full civil court upheld the judgment of ORG and dismissed the action . It considered that while under LAW merchant ships were entitled to innocent passage , this did not outweigh GPE ’s sovereign rights . That being so , any arms trafficking would adversely affect GPE and would thus mean that the passage was no longer innocent . It further stated the following :

“ ... On the other hand , the bill of lading described the CARDINAL boxes opened as containing ‘ Special Equipment’ . LAW specifies in Articles DATE and CARDINAL the points to be included in the bill of lading . The cargo received or loaded onto the vessel for transportation must be described on the bill of lading in order for the acknowledgment of receipt and the delivery contract to be complete ... This description , which is an essential element of the bill of lading , must be such as to allow the cargo to be distinguished at all times from the other cargoes on the vessel and must be complete . The carrier is obliged to indicate on the bill of lading the amount , brand and external appearance as well as the characteristics of the cargo ... Clearly , as is apparent from the bills of lading in the case file , these indications , some of which are mandatory , were not included on the bill of lading and invited suspicion .

A country may purchase the arms it needs for its defence from another country , or may secure them by means such as aid or donations . In other words , arms trading between GPE is a normal and lawful procedure . Transportation of these arms is also normal and lawful . Arms purchased and transported must be indicated clearly as such on the bill of lading and other documents , in accordance with international rules . There should be no need to conceal them or make use of other channels . The file did not include a sales contract to the effect that the party sending these arms had purchased them lawfully , nor did it include any evidence to the effect that a letter of credit had been opened by banks . Given the manner in which the arms were loaded onto the vessel , it was essential from the point of view of GPE ’s security to inspect the vessel . In the matter of innocent passage , the coastal ORG has the right to impose sanctions on the vessel and cargo in accordance with the rule on the prevention of non - innocent passage which stems from customary law and LAW . LAW , customary law and the principle of ex aequo et bono do not prevent GPE from exercising this right . For these reasons , the trial court ’s decision to dismiss the action must be upheld on the grounds that it is in conformity with the law and with statutory procedure . ”

The former signatories to LAW ( DATE ) , together with GPE and GPE , met at GPE , GPE , in DATE and abolished ORG , returning the LOC zone to NORP military control . GPE was authorised to close the LOC to warships of all countries when it was at war or threatened by aggression . Merchant ships were to be allowed free passage during peacetime and , except for countries at war with GPE , during wartime . The convention was ratified by GPE , GPE , GPE , the GPE , GPE , GPE , GPE and GPE , and DATE with reservations DATE by GPE . The preamble to the convention stated that the desire of the parties was “ to regulate transit and navigation in the LOC of the GPE , LOC and the LOC , comprised under the general term ‘ Straits’ , in such manner as to safeguard , within the framework of NORP security and of the security , in LOC , of the riparian GPE , the principle enshrined in LAW signed at GPE on DATE , DATE ” .

The relevant provisions of the convention read as follows :

“ The High Contracting Parties recognise and affirm the principle of freedom of transit and navigation by sea in the LOC .

The exercise of this freedom shall henceforth be regulated by the provisions of the present Convention . ”

“ In time of peace , merchant vessels shall enjoy complete freedom of transit and navigation in the LOC , by DATE and by TIME , under any flag and with any kind of cargo , without any formalities , except as provided in LAW below . No taxes or charges other than those authorised by ORG I to the present Convention shall be levied by the NORP authorities on these vessels when passing in transit without calling at a port in the LOC .

In order to facilitate the collection of these taxes or charges merchant vessels passing through the LOC shall communicate to the officials at the stations referred to in LAW their name , nationality , tonnage , destination and last port of call ( provenance ) .

“ All ships entering the LOC by LOC or by LOC shall stop at a sanitary station near the entrance to the LOC for the purposes of the sanitary control prescribed by NORP law within the framework of international sanitary regulations . This control , in the case of ships possessing a clean bill of health or presenting a declaration of health testifying that they do not fall within the scope of the provisions of the second paragraph of the present Article , shall be carried out by day and by TIME with all possible speed , and the vessels in question shall not be required to make any other stop during their passage through the LOC .

Vessels which have on board cases of plague , cholera , yellow fever exanthemic typhus or smallpox , or which have had such cases on board during DATE , and vessels which have left an infected port within CARDINAL times TIME shall stop at the sanitary stations indicated in the preceding paragraph in order to embark such sanitary guards as the NORP authorities may direct . No tax or charge shall be levied in respect of these sanitary guards and they shall be disembarked at a sanitary station on departure from the LOC . ”

“ In time of war , GPE not being belligerent , merchant vessels , under any flag or with any kind of cargo , shall enjoy freedom of transit and navigation in the LOC subject to the provisions of LAW and CARDINAL .

“ In time of war , GPE being belligerent , merchant vessels not belonging to a country at war with GPE shall enjoy freedom of transit and navigation in the LOC on condition that they do not in any way assist the enemy .

“ Should GPE consider herself to be threatened with imminent danger of war , the provisions of LAW shall nevertheless continue to be applied except that vessels must enter the LOC by day and their transit must be effected by the route which shall , in each case , be indicated by the NORP authorities .

“ The functions of ORG set up under LAW relating to the regime of the LOC of the DATE , are hereby transferred to ORG .

ORG undertake to collect statistics and to furnish information concerning the application of LAW , CARDINAL , DATE and DATE of the present Convention .

They will supervise the execution of all the provisions of the present Convention relating to the passage of vessels of war through the LOC .

As soon as they have been notified of the intended passage through the LOC of a foreign naval force ORG shall inform the representatives at ORG of the High Contracting Parties of the composition of that force , its tonnage , the date fixed for its entry into the LOC , and , if necessary , the probable date of its return .

ORG shall address to the Secretary - General of ORG and to the High Contracting Parties an annual report giving details regarding the movements of foreign vessels of war through the LOC and furnishing all information which may be of service to commerce and navigation , both by sea and by air , for which provision is made in the present Convention . ”

“ Nothing in the present Convention shall prejudice the rights and obligations of GPE , or of any of the other High Contracting Parties members of ORG , arising out of LAW . ”

The relevant provisions provide as follows :

“ Nothing in this Part affects :

( a ) any areas of internal waters within a strait , except where the establishment of a straight baseline in accordance with the method set forth in LAW has the effect of enclosing as internal waters areas which had not previously been considered as such ;

( b ) the legal status of the waters beyond the territorial seas of GPE bordering straits as exclusive economic zones or high seas ; or

( c ) NORP the legal regime in straits in which passage is regulated in whole or in part by long - standing international conventions in force specifically relating to such straits . ”

“ This section applies to straits which are used for international navigation between CARDINAL part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone . ”

“ CARDINAL . NORP In straits referred to in LAW , all ships and aircraft enjoy the right of transit passage , which shall not be impeded ; except that , if the strait is formed by an island of a State bordering the strait and its mainland , transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics .

Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between CARDINAL part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone . However , the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering , leaving or returning from a State bordering the strait , subject to the conditions of entry to that ORG .

Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention . ”

“ CARDINAL . Ships and aircraft , while exercising the right of transit passage , shall :

( a ) proceed without delay through or over the strait ;

( b ) refrain from any threat or use of force against the sovereignty , territorial integrity or political independence of GPE bordering the strait , or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations ;

( c ) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress ;

( d ) comply with other relevant provisions of this Part .

Ships in transit passage shall :

( a ) comply with generally accepted international regulations , procedures and practices for safety at sea , including LAW at Sea ;

( b ) comply with generally accepted international regulations , procedures and practices for the prevention , reduction and control of pollution from ships .

This provides as relevant :

“ Any person who causes damage to another in an unjust manner , be it intentionally or negligently , shall afford redress for that damage . ”

The civil courts are not bound by either the findings or the verdict of the criminal court ( LAW ) .

Section CARDINAL makes it an offence to smuggle , to attempt to smuggle or to assist in smuggling firearms or ammunition into the country .

Article CARDINAL of LAW which was in force at the relevant time prescribed the seizure and confiscation of objects which were used for the commission or preparation of a crime .

The relevant parts of LAW provide :

“ International agreements duly put into effect bear the force of law ... In the event of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter , the provisions of international agreements shall prevail . ”


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

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

On CARDINAL DATE the applicant was taken into police custody on account of an unnamed intelligence report according to which he was accused of aiding and abetting the ORG .

On DATE ORG requested from the local health clinic in ORG that the applicant be examined by a doctor .

On an unspecified date the applicant was seen by a doctor in ORG who noted in his medical report that there existed no bruises on the applicant ’s body resulting from the use of force . It is further noted in the medical report that the applicant complained of health problems that were only indicated with the initials “ ORG ” and “ PIS ” .

On CARDINAL DATE the applicant was interrogated by police officers . During the interrogation he was forced to sign a statement without knowing the contents of it .

In the meantime , on CARDINAL DATE PERSON , a former ORG activist , was interrogated by police officers . He alleged that the applicant had aided and abetted the members of the ORG DATE and that he had been together with the applicant ’s son PERSON in the “ mountain team ” of the ORG . PERSON added that the applicant ’s son had fled to GPE using the ORG ’s money . He concluded that the applicant ’s other son PERSON had died during an armed clash between the ORG and the security forces in DATE or in DATE .

On DATE the applicant was brought before the public prosecutor . He gave a statement with the help of a translator , as he was unable to speak LANGUAGE . The applicant rejected the allegations against him and stated that he had sent his son PERSON to GPE when he had become aware of his son ’s involvement in the ORG . He further stated that his son PERSON had died while he was working in GPE but not during an armed clash .

On DATE the applicant was brought before the İdil Magistrate ’s Court . He gave a statement with the help of a translator . He reiterated that he had no involvement in the activities of the ORG . The judge ordered his detention on remand .

At a hearing held before ORG on DATE the applicant denied the allegations against him . The court rejected the applicant ’s request of release pending trial because of the serious nature of the alleged offences and the state of the evidence .

In a letter addressed to ORG and dated DATE PERSON stated that he had erroneously accused the applicant and that he regretted having done so .

On DATE ORG convicted the applicant of aiding and abetting members of the ORG . The court further sentenced him to DATE and QUANTITY months’ imprisonment under LAW of ORG and LAW .

On DATE ORG quashed the decision of ORG on the grounds that the latter had not established whether or not the applicant ’s son PERSON had died in an armed clash and the applicant ’s other son PERSON had still been in GPE . Furthermore , ORG should have clarified whether or not the person accused of aiding and abetting the ORG in GPE ’s statement of CARDINAL DATE had been the applicant .

At a hearing held on DATE ORG decided to release the applicant pending trial .

On DATE ORG acquitted the applicant . The court found that there existed no evidence to convict the applicant . This decision became final on DATE because the parties did not lodge an appeal with ORG .


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

He is represented before the ORG by Ms. PERSON , a lawyer practising in GPE .

A.

On DATE a boy , J , was born to the applicant and PERSON , an NORP national . The child 's parents were not married and separated towards DATE . The applicant maintained regular contact with J but at no time had a parental responsibility order . J lived with and was cared for by ORG

On DATE the applicant issued an application for a parental responsibility order in ORG . He also requested a contact order , an order prohibiting ORG from taking J to GPE and an order that J be known by his correct name .

On DATE ORG took J to GPE .

On DATE the applicant applied to ORG for a direction that J be returned to the jurisdiction and that the matter be referred to ORG . On DATE ORG transferred the matter to ORG .

On DATE there was an ex parte hearing before ORG . The applicant requested the court to grant him parental responsibility . The court observed that his parental rights had not been breached when PERSON took the child to GPE because the applicant did not have parental responsibility . Even if the court were to grant the applicant parental responsibility at that stage , this would not make the removal of the child unlawful ex post facto .

The applicant also requested the court under LAW DATE to declare that J had been removed from the jurisdiction in breach of LAW of LAW on the Civil Aspects of International Child Abduction , because the applicant 's custody rights had not been respected . He submitted in this connection that the notion of “ custody ” should be interpreted broadly by reference to LAW . However , the court considered that the applicant did not have custody within the meaning of LAW . In particular , the court considered that the applicant did not have any formal rights of custody in LANGUAGE law and LAW had not been incorporated into domestic law .

Finally , the applicant sought a declaration in wardship . This would have enabled the applicant to seek an order that J be returned to GPE and GPE . However , the court declined to make such a declaration on the ground that J had always lived with PERSON and it was inappropriate at that stage to demand that PERSON should return with him to GPE and GPE so that the applicant could visit him . The applicant was treated differently from married fathers because he did not have parental responsibility . The applicant could issue proceedings in wardship or under LAW DATE , serve them on the mother and promptly request the appropriate orders . However , the court stressed that , in the circumstances , it would not make any ex parte orders .

The applicant sought leave to appeal . On DATE ORG refused his application . The applicant renewed his application before ORG .

On DATE ORG refused the applicant leave to appeal reasoning as follows : The purpose of LAW was to ensure the speedy return , without lengthy proceedings or inquiries , of children who had been wrongfully removed from the person having their care . However , J was not cared for by the applicant . The applicant simply had contact with him . The applicant 's case could be also distinguished from cases where wards of court had been removed from the jurisdiction . In CARDINAL such case the court had ordered the return to the jurisdiction of a child that had been made a ward of court on DATE following its removal . Finally , the mere fact that the applicant had instituted proceedings before the NORP courts had not resulted in those courts acquiring custody powers over J. This could have happened only if the courts had made an interim custody order . As a matter of fact , the precedent relied on by the applicant in this connection concerned a case where the child had been removed by a mother in favour of whom the courts had previously made an interim custody order in contested proceedings . As a result of all the above , ORG considered that the applicant 's case was not an appropriate one for an ex parte order . However , the applicant had the possibility of making further applications in the context of contested proceedings .

B. Relevant domestic law and practice

Section CARDINAL of the Children Act DATE provides the following :

“ ( CARDINAL ) Where a child 's father and mother were married to each other at the time of his birth , they shall each have parental responsibility for the child .

( CARDINAL ) Where a child 's father and mother were not married to each other at the time of his birth -

( a ) the mother shall have parental responsibility for the child ;

( b ) the father shall not have parental responsibility for the child , unless he acquires it in accordance with the provisions of this LAW . ”

It is within the inherent jurisdiction of ORG to make children wards of court ( wardship jurisdiction ) . Once a child has been made a ward of court , no important step in its life can be taken without the consent of the court .

Section CARDINAL of ORG DATE provides the following :

“ ORG or Court of Session may , on an application made for the purposes of LAW by any person appearing to the court to have an interest in the matter , make a declaration or declarator that the removal of any child from , or his retention outside , GPE was wrongful within the meaning of LAW . ”

LAW on the Civil Aspects of International Child Abduction provides the following :

Article CARDINAL

“ The removal or the retention of a child is to be considered wrongful where

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph ( a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

Article CARDINAL

“ The judicial or administrative authorities of a Contracting ORG may , prior to the making of an order for the return of the child , request that the applicant obtain from the authorities of the ORG of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of LAW , where such a decision or determination may be obtained in that ORG . ORG shall so far as practicable assist applicants to obtain such a decision or determination . ”


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

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

On DATE the applicant was discharged from his civil service post following his previous criminal conviction by a martial law court . The conviction had been finalised by ORG decision of DATE .

On DATE the applicant brought an action before ORG to annul the discharge order .

On DATE ORG rejected the applicant 's request .

On DATE ORG upheld the judgment of ORG . The written opinions of the public prosecutor and of the judge rapporteur ( “ tetkik hakimi ” ) concerning his appeal request were not communicated to the applicant .

On DATE ORG dismissed the applicant 's request for rectification of its previous decision .

On DATE the applicant was discharged from his civil service post after a disciplinary decision . Criminal proceedings were also commenced against the applicant on the same grounds as those which had led to his discharge .

On DATE ORG acquitted the applicant of the offences with which he had been charged . On DATE ORG upheld the applicant 's acquittal .

NORP In the meantime , on DATE ORG refused the applicant 's request to annul the discharge order . Relying on LAW ( Law no . CARDINAL ) , the administrative court held that the applicant 's acquittal of the criminal charges did not absolve him from the disciplinary sanction .

On DATE ORG upheld the judgment of ORG . The written opinions of the public prosecutor and of the judge rapporteur concerning his appeal request were not communicated to the applicant .

On DATE ORG dismissed the applicant 's rectification request . The final decision was served on the applicant on DATE .

A description of the relevant domestic law can be found in the case of GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .


The applicant , Mr PERSON , is an NORP national , born in DATE and currently detained in FAC . He was represented before the Court by PERSON , of ORG .

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

On DATE the applicant was arrested in flagrante delicto by the GPE police for importing a large quantity ( approximately QUANTITY ) of cocaine .

According to the police report , the drugs had been imported into GPE by an “ infiltrator ” called PERSON ( “ Jürgen ” ) as part of a joint operation by the NORP and NORP police . On DATE PERSON had stayed at FAC in GPE , which was under close police surveillance . On DATE he had telephoned X , a drug trafficker living in GPE ( GPE ) who was interested in buying drugs ; PERSON said that he had discussed the subject with the applicant . On DATE X had informed PERSON that the applicant was now in GPE . The applicant had subsequently attended ORG , contacted PERSON and asked him whether he had the “ merchandise ” ( roba , an expression often used in criminal circles to refer to hard drugs ) . On being told that he had , the applicant had gone up to ORG ’s room where he was shown a suitcase containing QUANTITY of cocaine . He had made a gesture of approval and had immediately been arrested . The scene was recorded with audiovisual devices . Subsequently , X had telephoned ORG and pressed for news of the applicant .

By an order of DATE the LOC investigating judge ruled that the applicant ’s arrest was lawful and ordered his detention pending trial .

On DATE the applicant was committed for trial by ORG on charges of international drug trafficking .

The trial began on DATE . Numerous witnesses , including officers from the NORP police and the NORP federal police ( Bundeskriminalamt – “ the BKA ” ) gave evidence . They provided details of the nature of the police operation that had led to the applicant ’s arrest and of the procedures used .

On DATE ORG , which considered it “ absolutely necessary ” to hear PERSON ’s version of the events , issued a request for evidence on commission in which it asked the NORP authorities to take evidence from PERSON in GPE . The request was transmitted to ORG in GPE . In a memorandum dated DATE the GPE district judge informed ORG that , according to information received from the BKA , it had not proved possible to find PERSON , despite numerous attempts . He had gone on holiday on DATE and had not been in touch since .

On DATE , in view of the fact that PERSON could not be located and that the defence had waived its right to have him examined , ORG withdrew its request of CARDINAL DATE for evidence on commission . At the applicant ’s request , it decided to place in the case file certain statements made by ORG in connected criminal proceedings pending in GPE .

In a judgment of CARDINAL DATE ORG convicted the applicant and sentenced him to fifteen years’ imprisonment and a fine of MONEY ( ITL ) ( MONEY ( ORG ) ) .

It relied in its decision on the circumstances of the applicant ’s arrest ( which had been confirmed by an audiovisual recording ) , the transcripts of telephone conversations PERSON had had with X and other people implicated in drug trafficking , and statements by the NORP police and the BKA . That evidence showed that NORP drug traffickers had asked PERSON , who was well known in drug - trafficking circles , whether he knew anyone who would be interested in buying cocaine . CARDINAL NORP nationals , GPE , Y and the applicant , had contacted PERSON to express their interest , while X and the applicant had subsequently given him money .

ORG did not consider it necessary to examine whether , as an undercover agent , PERSON was liable to prosecution under NORP law . His statements had not been made in GPE , but in connection with the proceedings in GPE and , under the laws of that country , he was immune from prosecution . Furthermore , most of his statements concerned his links with the NORP police and were not relevant to the applicant ’s case . The only document that was of relevance was one in which Jürgen had described his dealings with X and the applicant in order to reach an agreement for the sale of the cocaine and to make arrangements for delivery . In view of the fact that the NORP authorities said that PERSON could not be found , his statements had henceforth to be regarded as “ unrepeatable ” ( irripetibili ) and , consequently , admissible in evidence on the merits of the charges against the applicant . His statements corroborated and confirmed other prosecution evidence against the applicant .

In sentencing the applicant , ORG noted in particular that he had previous convictions ( albeit for less serious offences ) and that other criminal proceedings were pending against him . It also noted that it was apparent from the nature of the offence that he was active in drug - trafficking circles .

Both the prosecution and the applicant appealed .

The applicant submitted , inter alia , that the operation mounted by the police for the simulated sale of drugs was illegal . He argued that while the relevant NORP legislation ( Articles CARDINAL and CARDINAL of Presidential Decree no . CARDINAL of DATE ) authorised operations for the simulated purchase and controlled delivery of drugs in exceptional cases , under no circumstances did it permit the fictitious sale of drugs . In his submission , PERSON and the other police officers who took part in the case should have been examined as co - defendants , not witnesses . The fact that they had not been examined in that capacity meant that their statements should have been excluded . Furthermore , as the true identity of PERSON had not been duly disclosed , admitting his statements in evidence infringed the fundamental principles of the NORP legal system .

Lastly , the applicant argued that he should have been acquitted under LAW of LAW ( see “ Relevant domestic law ” below ) , as , had it not been for the actions of Jürgen and other police officers , the alleged offence would not have been committed .

On DATE ORG , which considered it “ absolutely necessary ” for PERSON to give oral testimony , issued a request for evidence on commission in which it asked the NORP authorities to hear PERSON and to ensure that he was assisted by a lawyer .

ORG arranged for a hearing on DATE for evidence to be taken from Jürgen in accordance with the relevant provisions of NORP law . It indicated that the NORP judges , a representative from the public prosecutor ’s office and the applicant ’s lawyers were entitled to attend .

However , on DATE the BKA informed ORG that PERSON ’s whereabouts remained unknown . The hearing on DATE was cancelled . On DATE the applicant , finding the BKA uncooperative , applied for an order requiring PERSON to appear before the NORP judicial authorities .

The President of ORG granted his application on DATE , ordering PERSON to appear on DATE and inviting him to instruct a lawyer of his choice . The order was forwarded to the NORP authorities , who were requested to serve it on Jürgen in accordance with Articles CARDINAL et seq . of LAW . They were advised that PERSON could remain anonymous .

ORG did not attend the hearing on DATE .

By a judgment of DATE , which was lodged with the registry on CARDINAL DATE , ORG increased the applicant ’s sentence to DATE and QUANTITY months’ imprisonment and a fine of ORG CARDINAL ( approximately EUR CARDINAL ) .

It noted , firstly , that it was possible under LAW for a witness ’s identity not to be disclosed in the record if the witness was in danger . In such cases , the papers certifying the witness ’s identity were retained by the public prosecutor ’s office . It further found that there could be no doubt as to ORG ’s identity , as the case file showed that , on being questioned on DATE by the GPE public prosecutor ’s office , he had produced a passport in the name of PERSON and stated that he had been working as a secret agent for the BKA and the NORP police for DATE . Lastly , several witnesses had said that he was the man responsible for the operation for importing cocaine into LOC .

ORG also said that , although it had made several attempts to obtain oral testimony from PERSON , this had proved impossible . Accordingly , by virtue of LAW of LAW ( “ the ORG ” ) , his statements to the NORP authorities could be placed in the court file and relied on by the court when deciding the case .

As to PERSON ’s status in the NORP proceedings , ORG observed that undercover agents were only entitled to immunity if their role in the criminal conduct concerned was “ indirect and peripheral ” , that is to say limited to surveillance and observing the actions of third parties . In the case before it , since PERSON had played an active role in bringing the cocaine from LOC to GPE and from there to GPE , he should have been treated as a co - defendant in the NORP proceedings . The fact that he had not been meant that his statements could only be relied on to the extent that they did not disclose matters for which he could be held criminally liable . The admissible part of his statements had shed light on the dynamics of the police operation that had led to the applicant ’s arrest .

As regards the applicant ’s objection under LAW , ORG noted that that provision precluded the imposition of a penalty on persons whose acts were wholly incapable of producing dangerous or harmful consequences . Moreover , the intervention of an undercover agent had no effect on a defendant ’s acts if the defendant already had an intention to commit the offence . ORG said that in the case before it the applicant had taken various preparatory steps : he had asked PERSON to transport QUANTITY of cocaine , paid him sums of money , remained in touch with him and attended the rendezvous for the delivery of the drugs .

The applicant appealed to ORG . He relied mainly on the same grounds of appeal , but also pointed out that PERSON ’s identity had not been established with certainty , and argued that his statements were therefore inadmissible ab initio .

In a judgment of DATE , the text of which was lodged with the registry on DATE , ORG held that ORG had dealt with all the issues logically and correctly and dismissed the applicant ’s appeal .

As regards the alleged violation of LAW , it noted that an agreement over the arrangements for the sale of the cocaine had already been made in GPE and that the applicant had decided to perform that agreement of his own free will .

LAW ORG sets out the cases in which records of evidence obtained in other criminal proceedings may be placed in the case file ( and therefore be used in evidence on the merits of the charges ) . Paragraph CARDINAL of that provision lays down , inter alia , that “ depositions which ... can not be repeated ” may in all cases be placed in the case file . Article CARDINAL § CARDINAL of the provisions on execution of the ORG provides : “ depositions which can not be repeated obtained by a foreign police force may be placed in the court file , either with the parties’ agreement or after the maker of the deposition has been heard ... ”

Article CARDINAL § CARDINAL of the Criminal Code prohibits punishment being imposed for acts or omissions which , by their nature or owing to the absence of a subject matter , are incapable of producing dangerous or harmful consequences .


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

DATE and DATE he made CARDINAL requests that a date be set for a hearing .

During the proceedings the court appointed a medical expert .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

At the last hearing the parties settled the case and the court terminated the proceedings .


András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

NORP The applicant , Mr Liborio Garofolo , is an NORP national , who was born in DATE and lives in ORG , GPE of GPE - Landschaft . He was represented before the ORG by PERSON , a lawyer practising in ORG .

ORG ( “ the Government ” ) were represented by their Deputy Agent , Mr A. Scheidegger , of ORG . ORG , who had been informed of their right to intervene under LAW , did not make use of this right .

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

NORP In DATE the Swiss ORG ( Eidgenössische Spielbankenkommission – “ ORG ” ) opened investigations against ORG ( the “ ORG ” ) , a stock corporation under NORP law , on suspicion of having illegally installed gaming machines in establishments other than licensed casinos . On the occasion of a search of the ORG ’s business LOC on DATE , ORG officials seized documents indicating that the gaming machines had been installed in agreement with the operators or tenants of such establishments who had shared the profits resulting from the machines’ illegal operation with the ORG .

It followed from several of the documents seized during the search that CARDINAL illegal gaming machines delivered by the ORG had been operated in a club run by the applicant . For instance , according to CARDINAL letter agreements addressed to the applicant ’s club and dated DATE and DATE respectively it was stipulated that in each case a gaming machine of a type that was not authorised for use outside licensed casinos was to be installed by the ORG at the applicant ’s club . It was further agreed that the proceeds from the operation of the respective machines were to be equally split between the parties . The agreement dated DATE was accompanied by a delivery note ( PERSON ) of the same date stating the type and serial number of the machine supplied to the applicant ’s club . The seized documents further comprised CARDINAL bills dated DATE , DATE and DATE respectively , demonstrating that gaming machines installed at the applicant ’s club by the ORG had generated proceeds which had been divided equally between the ORG and the club ’s tenant . Each of the receipts carried the signature of PERSON who at the time had been an employee of the ORG as well as of a representative of the club ’s tenant or - as regards the receipt of DATE - the applicant ’s own signature . The authorities further seized a list dated CARDINAL DATE setting out commissions collected by PERSON on behalf of the ORG in connection with the operation of gaming machines installed by the ORG at the applicant ’s club . The list referred , inter alia , to machines of the type that had been the subject of the aforementioned agreements of CARDINAL DATE and DATE . In addition , the ORG officials seized several computer - generated reports depicting revenues of the ORG resulting from the operation of the said CARDINAL gaming machines .

On DATE an official of the ORG accompanied by a police officer carried out a control visit at the applicant ’s club , where they discovered an unlicensed gaming machine . The machine carried several stickers indicating that it was for sale . After having verified that the machine , even though switched off , was nevertheless fully operational , the ORG officer ordered that it be confiscated .

On DATE , the applicant was heard as a witness ( Auskunftsperson ) in the administrative criminal proceedings ( Verwaltungsstrafverfahren ) instituted by the ORG against the ORG and its management . While conceding that the ORG had installed gaming machines at his club ’s LOC in the past which had included machines of the type appearing on the documents seized at the ORG ’s premises , the applicant maintained that he had not been aware that the use of such machines outside licensed casinos was prohibited . A machine of the type in question had been operated at his club for DATE but had been disposed of in DATE . By contrast , the gaming machine confiscated by the authorities on DATE had not been installed by the ORG but had been bought by himself DATE back in GPE for private use . The applicant explained that since the machine was no longer functioning he had brought it to the club for the purpose of selling it . The applicant further contended that he did not have any recollection of having been in contact with PERSON in the past .

On an unspecified date , the ORG also commenced an investigation against the applicant without the latter ’s knowledge .

On DATE , PERSON was heard as a witness in the criminal administrative proceedings instituted against PERSON , one the ORG ’s management board members . PERSON specified that as an employee of the ORG at the time of the events at issue it had been his task to empty the cash registers of the gaming machines installed by the ORG at a given establishment and to divide the proceeds between the ORG and the respective tenant in accordance with the previously agreed ratio . PERSON testified in this context that he had also collected proceeds generated by gaming machines installed by the ORG at the club run by the applicant , whom he knew personally . He further confirmed that he had drawn up and signed the aforementioned statements on the division of the related proceeds dated CARDINAL DATE , DATE and DATE at the club ’s premises and in the presence of its tenant but did not have any recollection who had signed the receipts on the tenant ’s behalf . When presented with a photo of an illegal gaming machine of the type allegedly operated at the applicant ’s club , PERSON recalled having seen a similar machine at the club ’s premises . He pointed out that it followed from the information on the receipts dated DATE and DATE that proceeds had also been generated by such gaming machine . This clearly showed that the machine had been in use since otherwise its cash register would have been empty . PERSON further stated that he did not know who had drawn up the remainder of the seized reports on revenues generated by the CARDINAL allegedly illegal gaming machines . In PERSON ’s opinion it was unlikely that the applicant had been aware that the operation of these machines had been illegal .

On DATE the ORG established the final record ( Schlussprotokoll ) of its investigations conducted against the applicant which was served on the latter the following day . The record informed the applicant that he was accused of having illegally organised games of chance in violation of LAW lit . a of LAW pertaining to gambling and gambling houses ( GPE über GPE und ORG – see Relevant domestic law below ) . According to the record , the information obtained in the course of the investigations , in particular the documents seized at the ORG ’s premises , had demonstrated that in the period from DATE until DATE the applicant had operated up to CARDINAL unlicensed gaming machines at his club and that the resulting proceeds had been equally split between him and the ORG . While the applicant when heard as a witness in the proceedings against the ORG had admitted that an illegal gaming machine supplied by the ORG had been operated at his club for DATE , he had denied that the machine seized at his club had been installed by the ORG or operated for commercial purposes . Having regard to the fact that this machine showed the same serial number as indicated on the delivery note dated DATE , the ORG did , however , conclude that it had been delivered by the ORG . It was further specified in the record that according to the documents seized , the profit realised by the applicant in the period at issue as a consequence of the illegal operation of the said machines amounted to a total of MONEY ( CHF MONEY ( ORG ) ) .

The final record further informed the applicant that , within a time - limit of DATE , he had the right to comment on the ORG ’s findings , to apply for the investigations to be complemented and to inspect the investigation files . It was further specified that since the applicant had so far only been heard as a witness in the proceedings against the ORG , he would have the right to request a further hearing in his capacity as accused in respect of the charges brought against him .

As the applicant did not submit any comments within the set time frame the ORG , by an order ( PERSON ) of CARDINAL November CARDINAL , found him guilty as charged and imposed a fine of MONEY ( ORG MONEY ) . It further ordered that the confiscated gaming machine be destroyed and sentenced the applicant to pay compensation to the ORG in the amount of CHF MONEY corresponding to the profits he had generated by the machines’ illegal operation . He was further informed about his right to file an objection ( Einsprache ) against the order within a time - limit of DATE , providing reasons and setting out possible means of evidence in its support .

On DATE the applicant , now represented by counsel , objected to the order after having been granted access to the investigation files . He contended , in particular , that while he had been heard as a witness in the proceedings against the ORG , he had not been informed that investigations had also been commenced with respect to him . He had thus not been granted an opportunity to defend himself . He further contested having exploited illegal gaming machines at his club for commercial purposes . The confiscated machine had not been in use at the club . As regards any other gaming machines installed by the ORG these had been exclusively operated by and for the benefit of the latter .

By a penal order ( Strafverfügung ) of DATE the ORG , endorsing its order of DATE , dismissed the applicant ’s objection . It pointed out that NORP administrative criminal law did not request a formal decision by the authorities on the opening of investigations against an individual but merely required that the initiation of such proceedings was apparent from the official files . In the instant case it followed from the final record of the investigations served on the applicant on DATE that investigations had been opened against him . In accordance with ORG CARDINAL and CARDINAL of LAW ( see Relevant domestic law below ) such final record could be drawn up even before the accused had been questioned . The record had further informed the applicant about his right to submit comments , to apply for further evidence to be taken and to be heard again by the ORG in his capacity as accused . The applicant had , however , not availed himself of these rights . The ORG further pointed out that the applicant ’s allegations that the ORG alone had been entitled to the profits resulting from the machines’ operation and that the gaming machine seized at his club had never been used for commercial purposes were clearly refuted by the content of the documents seized and the veracity of which the ORG had no reason to doubt .

Following the applicant ’s appeal against the ORG ’s penal order , the case was referred at his request to the GPE - Landschaft Criminal Court ( ORG ) for judicial review in accordance with LAW ( see Relevant domestic law below ) .

In his written submissions to ORG the applicant reiterated his allegations that the proceedings before the ORG had disregarded basic rights of the defence on the grounds already set out in his objection of DATE ( see § CARDINAL above ) . He complained that criminal proceedings had never been formally opened against him and he had not been informed in due course of the investigations instituted against him . Furthermore , he had never been heard in his capacity as accused in the course of the investigations but only as a witness in the proceedings against GPE He further invoked that due to his insufficient command of the NORP language he had not understood the content of the ORG ’s final protocol dated DATE . He finally maintained that the charges brought against him were time - barred .

The applicant requested that the originals of the seized documents be produced at trial , that the signatures of the club ’s representative on the receipts dated DATE , DATE and DATE as well as the delivery order of CARDINAL DATE be compared with his own handwriting and that the files in the proceedings against the ORG ’s management be included as evidence in his trial . He further requested that PERSON , PERSON and CARDINAL further employees of the ORG , namely ORG and GPE , who had allegedly supplied gaming machines to his club , be heard as witnesses . He argued that PERSON was a key witness in the proceedings since he was the author of several of the documents that had been used by the ORG as evidence against him and the accuracy of which he contested .

By a decision of CARDINAL DATE ORG granted the applicant ’s request to hear the aforementioned witnesses and to admit the investigation files against the ORG ’s motion on the ground that he had not established why the taking of the requested evidence was relevant for the court ’s finding of facts . On DATE ORG decided to abstain from summoning PERSON The witness had informed the ORG that he was currently residing in GPE and while he was ready to appear at trial against compensation of his travel expenses , he did in any event not know the applicant or have any recollection of events relating to the period at issue . Under the circumstances , the court concluded that his convocation would be disproportionate .

On DATE ORG heard , inter alia , the applicant , who was represented by counsel and assisted by an interpreter , the ORG official who had seized the illegal gaming machine at the applicant ’s club on DATE , PERSON , one of the managing directors of the ORG , as well as ORG , an employee of the ORG who had been involved in the delivery of gaming machines to the applicant ’s club . PERSON did not attend the hearing .

By a judgment of DATE , the vice - president of ORG ) found the applicant guilty as charged . While reducing the fine previously imposed by the ORG from CARDINAL ( EUR CARDINAL,CARDINAL ) ORG upheld the remainder of the sentence imposed by the ORG .

ORG , relying in particular on the contents of the documents seized at the ORG ’s premises , found it established that the illegal gaming machines had been used at the applicant ’s club for commercial purposes . The copy of the letter agreement dated DATE on the supply of an illegal gaming machine by the ORG to the applicant ’s club had provided for the equal splitting of the proceeds resulting from the machine ’s operation between the parties . By agreement dated DATE it had been agreed that a gaming machine of the type that later was confiscated by the ORG at the applicant ’s club was to be delivered by the ORG and that the proceeds from its operation were also to be divided equally between the ORG and the applicant . The related delivery note of DATE showed the serial number of the installed gaming machine which was identical with the serial number on the confiscated machine . Furthermore , the compilation of commissions collected by PERSON on behalf of the ORG dated DATE as well as the further reports on revenues obtained by the ORG demonstrated that proceeds had been generated by both such machines during the period at issue and showed what proportion of such profits had been allocated to the ORG . The related figures corresponded to statements on the amounts of payments credited to the ORG ’s accounts . The court further pointed out that the applicant ’s allegations that the confiscated gaming machine had not been functioning was refuted by the testimony of the ORG official who had been present at the club on the occasion of the control visit on DATE and , when heard as witness at trial , had confirmed that the machine had been accessible to the public and fully operational .

ORG further referred to the witness statement made by PERSON on DATE in the proceedings against PERSON ( see above § CARDINAL ) . The court explained that it had not been possible to hear the witness in person on the ground that the latter , according to information provided by the cantonal police , was hospitalised abroad . The court , while noting that the applicant had not had the opportunity to confront PERSON at any stage of the proceedings against him , held that PERSON ’s statements could nevertheless be admitted as evidence in the instant proceedings since they were not decisive for the applicant ’s conviction and the remaining available evidence was sufficient to prove the applicant ’s guilt .

ORG specified in this context that in addition to the aforementioned documentary evidence , PERSON had testified at trial that as a rule the proceeds from the operation of gaming machines had been equally split between the ORG and the tenants of the enterprises where the machines had been installed . ORG , who at the time had worked as commercial executive for the ORG , had confirmed that the proceeds from the operation of gaming machines installed at the applicant ’s club had also been divided equally . He had further confirmed that he had drawn up the documents dated DATE in relation to the delivery of the machine that had later been confiscated at the applicant ’s club . He had handed the documents over to the chauffeur who had been charged with delivering the machine to the applicant ’s club . ORG had further testified that the conclusion and implementation of agreements on the installation of gaming machines had been within the exclusive competence of GPE and PERSON and it was inconceivable that machines had been delivered also by PERSON whose function had been limited to emptying the cash registers of machines installed by the ORG . PERSON stated in this context that PERSON had been a reliable employee and the commission invoices established by him had always been accurate . In view of these testimonies ORG concluded that the applicant ’s allegations that PERSON had regularly exchanged and replaced the machines installed at his club and that for this reason he had not been aware of the type of machines installed at a given moment , were not credible .

The applicant appealed against the judgment to the Basel - Landschaft Cantonal Court ( PERSON ) and by written submissions dated DATE requested to be acquitted .

He invoked again that the proceedings had disregarded fundamental rights of the defence in violation of LAW reasons already set out on the occasion of his previous appeals . He further argued that while he had been assisted by an interpreter on the occasion of the trial before ORG he had not disposed of such assistance at the pre - trial stage in the proceedings before the ORG . For this reason his statements on the occasion of his hearing as a witness in the proceedings against the ORG on DATE had been contradictory .

The applicant further maintained that neither he nor his counsel had been granted an opportunity to examine PERSON , the main witness against him , at any stage of the proceedings in breach of LAW ( d ) of the LAW . This witness had not only incriminated the applicant on the occasion of his hearing on DATE in the proceedings against PERSON but had also produced several of the documents on which ORG had based his conviction and the veracity of which the applicant contested . In the instant case the national authorities could also not exceptionally dispense with a witness hearing on the ground that PERSON was not in a position to attend the trial due to his hospitalisation . In this context it was relevant that the ORG had failed to provide for a possibility to examine PERSON at the pre - trial stage where such confrontation could have been arranged without problems . The applicant consequently reiterated his request that PERSON be heard as a witness in the proceedings . He further repeated his request for an examination of PERSON at trial .

By a decision of CARDINAL DATE ORG granted the applicant ’s request to hear PERSON and dismissed the remainder of his request for the taking of evidence . On DATE the court was informed by the municipal police that PERSON was currently hospitalised in GPE . This information was confirmed by e - mail messages from PERSON and a representative of the hospital . Furthermore , PERSON ’s brother had explained over the phone that PERSON had undergone surgery and had to remain in hospital for further treatment . By a decision of DATE the court , pointing out that a confrontation between the applicant and PERSON was not so important as to justify the postponement of the hearing scheduled for CARDINAL DATE , ordered that the trial be pursued without PERSON being questioned .

On the occasion of the hearing on DATE counsel for the defence again requested that PERSON be examined at trial . The ORG , acting as joint plaintiff to the prosecution , moved that the application be dismissed since the court disposed of sufficient further means of evidence for a conviction . ORG dismissed the applicant ’s request .

In its judgment rendered on DATE ORG fully endorsed ORG findings at first instance . The court further took the view that the rights of the defence had been fully respected in the proceedings .

As regards the applicant ’s request to hear PERSON as a witness ORG , while noting that the applicant had not been granted an opportunity to confront PERSON at any stage of the proceedings , emphasised that by the ORG ’s final record of CARDINAL DATE , the applicant had been informed of his right to request that the investigations be complemented and could thus have asked already at this point in time for PERSON to be examined . ORG further pointed out that the courts at both instances had made efforts to enable PERSON ’s examination at trial . ORG had summoned PERSON to appear at the hearing . The latter being hospitalised abroad , however , could not attend the trial . The witness had again been summoned to appear at the hearing on DATE in the appellate proceedings . According to information obtained through the competent municipal police on DATE and from the witness ’s brother , the latter was subject to further treatment in a hospital in GPE where he had to remain for some time . His examination had thus been objectively impossible . Another adjournment of the hearing would have further delayed the proceedings that had already lasted a considerable time and would have contravened the principle that criminal proceedings should be conducted expeditiously .

ORG further stated that pursuant to LAW evidence was only to be obtained to the extent this was necessary with a view to establishing the facts relevant for deciding on an appeal . The ORG took the view that in the instant case it disposed of sufficient elements for its findings of fact and that PERSON ’s testimony and the documents produced by him were not of significant importance in this respect . The fact that PERSON had not been examined had thus not violated the rights of the defence . ORG at first instance had based its assessment of the applicant ’s guilt on the applicant ’s submissions , the testimonies of the witnesses heard at trial as well as the agreements and delivery notes of DATE and CARDINAL DATE and the reports on profits allocated to the ORG . The documents issued by PERSON had been taken into account to the extent they were consistent with and had corroborated these available pieces of evidence .

In ORG view , on the basis of the whole body of evidence taken together , and even without taking into account PERSON ’s testimony , it was established that the applicant had operated CARDINAL illegal gaming machines at his bar which had been provided by the ORG and that the latter and the applicant had equally shared the gains from their illegal operation . The applicant ’s submissions to the contrary had all been refuted by the available evidence . The fact that at his hearing before the ORG on DATE the applicant had stated that he did not recall having met PERSON in the past whereas in the proceedings before ORG he had submitted that PERSON had regularly installed and replaced gaming machines at his club and had also been a good client provided a further indication that his testimony was not credible .

As regards the applicant ’s additional complaint regarding the lack of a formal decision by the authorities with respect to the opening of criminal investigations against him and the fact that he had not been heard by the ORG in his capacity as accused , ORG reiterated the related explanations provided in the ORG ’s penal order of DATE ( see § CARDINAL above ) . It recalled that even though in the final record of the investigations established by the ORG the applicant had been informed about his defence rights and had disposed of sufficient time to avail himself of such rights he had failed to do so . The court specified in this context that although the applicant ’s knowledge of the NORP language was limited it could have been expected of him to enquire about the record ’s contents .

By a judgment of DATE ORG ( PERSON ) , endorsing ORG decision , rejected the applicant ’s related appeal lodged on DATE . ORG judgment was posted on DATE and served on the applicant on DATE .

LAW lit . a of LAW pertaining to gambling and gambling houses ( GPE über PERSON und ORG ) stipulates that the organisation or commercial offering of games of chance outside licensed gambling houses is subject to imprisonment or a fine of MONEY . ORG is the competent authority for the prosecution of illegal gambling .

LAW ( Bundesgesetz über das Verwaltungsstrafrecht ) of DATE as amended provides for the procedural rules to be observed in the event the prosecution of an offence falls within the competence of an administrative authority . Pursuant to LAW . of the LAW the relevant administrative authority is competent to rule on breaches of administrative criminal law unless a superior authority holds that the offence committed requires that a prison sentence be imposed , in which case the matter is referred to the criminal courts . Officers of the competent administrative authority who are specifically trained for this purpose may conduct the investigations with the support of the cantonal and municipal police . Article CARDINAL of the LAW requires that the opening of investigations , their conduct and their outcome shall be apparent from the official files . Articles CARDINAL et seq . stipulate that the investigating officers may collect written and oral evidence and hear witnesses . The provisions further specify under which conditions the search of apartments or business LOC and the confiscation of documents or objects be ordered within the scope of ongoing investigations .

According to LAW , once the investigating officer deems the investigations to be complete he or she draws up a final record ( ORG ) , to discontinue the proceedings or to refer the case to the criminal courts . The convict may object to such a decision within DATE from the date it was served on him . The objection has to be made in writing , contain a specific and reasoned request and set out any related means of evidence . The administrative authority , having re - examined the case , then renders a new decision . The convict may , within DATE after the decision has been served on him , request that the case be referred for judicial review to the criminal courts ( Article CARDINAL ) . In this case , the concerned administrative authority transfers the files to the prosecution authorities at the competent cantonal criminal court . Articles CARDINAL to CARDINAL contain rules regarding the ensuing proceedings before the criminal courts . The referral shall constitute the bill of indictment . The accused , the competent public prosecution authorities and the concerned administrative authority are parties to the court proceedings . The evidence gathered within the scope of the administrative criminal proceedings as set out in the investigation file established by the administrative authority shall form an integral part of such court proceedings . The criminal court may on its own motion or at the request of either party order the taking of further evidence . The rules of LAW apply to the proceedings to the extent GPE does not contain specific regulations .

Pursuant to Section CARDINAL of the Code of Criminal Procedure ( Strafprozessordnung ) of the GPE Basel - Landschaft of DATE the parties to proceedings before the criminal court may within a time - limit set by its president file an application for the taking of further evidence . The president may , inter alia , refuse a related request in the event the taking of the requested evidence is obviously not necessary or in the event it is impossible to obtain . As regards the proceedings before ORG


David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

NORP The applicant in the first case , Mr PERSON , is a NORP national , who was born in DATE . He was represented before the ORG by ORG , a firm of solicitors based in GPE .

NORP The applicant in the second case , Mr PERSON , is a NORP national , who was born in DATE . He was represented before the ORG by ORG , a firm of solicitors based in GPE .

Both applicants are in detention following their conviction for various criminal offences .

The applicants complained that , as convicted prisoners , they had been subject to a blanket ban on voting in elections and had been , or would be , prevented from voting in CARDINAL or more of the following : elections to ORG on DATE ; the parliamentary election on DATE ; elections to ORG on CARDINAL DATE ; a nationwide referendum on the alternative vote on CARDINAL DATE ; local government elections on various dates ; and future elections .

Pursuant to sections CARDINAL of the Representation of LAW DATE a convicted person , during the time that he is detained in a penal institution in pursuance of his sentence , is legally incapable of voting at any parliamentary or local election .

Section CARDINAL of the Scotland Act DATE provides that only persons who , on DATE of the poll , would be entitled to vote as electors at a local government election and are registered in the register of local government electors are entitled to vote as electors at an election to ORG .

Section CARDINAL(CARDINAL ) of ORG provides , in so far as relevant , that a person is entitled to vote at an election to ORG if , on DATE of the poll , he would be entitled to vote as an elector at a parliamentary election .

In so far as relevant , section CARDINAL of LAW and LAW provided that only those who , on DATE of the alternative vote referendum , were entitled to vote as electors at a parliamentary election were entitled to vote in the alternative vote referendum of CARDINAL DATE .

Each of the CARDINAL jurisdictions of GPE , GPE , GPE and GPE ) is subdivided into a number of local authorities . The specific system in place varies depending on the jurisdiction in question .

The system of local government was created by statute . Local authorities’ internal organisation and competences are regulated by statutes enacted by ORG and by ORG of the CARDINAL devolved jurisdictions ( GPE , GPE and GPE ) .

The functions and powers of local authorities are of a predominantly administrative nature and generally cover areas such as waste management and collection , housing , local planning , council tax collection , licensing , transport and social services . In respect of these various areas , local authorities carry out their duties in accordance with primary legislation governing the area in question and can only act in so far as they are authorised to do so by statute or by subordinate legislation .

Local authorities have the power to make by - laws , which are essentially laws of local application . By - laws usually have to be confirmed by a Government minister or the ministers of the devolved jurisdictions before they can take effect .

On DATE ORG ) adopted a pilot judgment in NORP and PERSON v. GPE , nos . CARDINAL and CARDINAL/CARDINAL , ORG DATE ( extracts ) . It found a violation of LAW No . CARDINAL in respect of the blanket ban on voting applicable to convicted prisoners as regards parliamentary elections and elections to ORG . It also imposed a deadline for action , indicating that GPE had to introduce legislative proposals to amend the incompatible legislation within DATE on which the judgment became final , with a view to the enactment of the law according to any time - scale determined by ORG .

On DATE the Government published a draft bill on ORG voting eligibility . The draft bill includes CARDINAL proposals : ( CARDINAL ) ban from voting those sentenced to DATE or more ; ( CARDINAL ) ban from voting those sentenced to DATE ; or ( CARDINAL ) ban from voting all prisoners . The proposals cover both local and parliamentary elections . Although the draft bill is currently drafted to extend to GPE and GPE only , the introduction and explanatory notes make it clear that the final bill would extend to the whole of GPE . The devolved jurisdictions are therefore involved in the pre - legislative process .

On DATE ORG , responsible for supervising the execution of the judgment , adopted a decision in which it noted the range of options proposed in the draft bill ; endorsed the view that the third option aimed at retaining the blanket ban was not compatible with the Convention ; invited the Government to keep it regularly informed of the proposed time - scale ; and decided to resume consideration of the case at the latest at its DATE meeting .

On DATE a motion to nominate the CARDINAL members of ORG to serve on a joint committee which will conduct prelegislative scrutiny of the draft bill was agreed . On DATE a motion to nominate the CARDINAL members of ORG to serve on the committee was agreed . The committee held its first meeting on DATE and will report by DATE .

On DATE , there was a hearing before ORG in the case of PERSON v. The Lord President of the ORG and another . The claimant is a serving prisoner who claims that the prohibition on prisoners voting is incompatible with ORG law .


Violation of Art. 10;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

On DATE the applicant , at the material time a member of ORG ) , a registered left - wing political party , was convicted by ORG under section CARDINAL ( CARDINAL ) of LAW of the offence of having displayed a totalitarian symbol in public . The court observed that the applicant had publicly worn a CARDINAL - pointed red star while participating in a demonstration on DATE celebrating GPE ’s accession to ORG and , at the same time , the International Workers’ Day . As a sanction , the court issued a reprimand .

NORP On appeal , on DATE ORG reversed this judgment and acquitted the applicant . In holding that his act had represented in fact no danger to society , ORG made reference inter alia to a judgment of ORG , adopted on DATE , which had been introduced by another individual on account of a conviction similar in nature ( PERSON v. GPE , no . MONEY ) . In that judgment ORG held that prosecution for having worn a red star amounted to a violation of that applicant ’s freedom of expression enshrined in LAW .

In pursuit of the prosecution ’s further appeal , on DATE ORG reversed the second - instance judgment and upheld the applicant ’s conviction . It confirmed the reprimand and ordered the applicant to pay MONEY in criminal costs . ORG held that positive NORP law did not permit the domestic courts to apply the holding of PERSON as such . It pointed out that the conditions of social dangerousness DATE which had been found by ORG to be absent in some , otherwise similar , cases – were indeed present in the instant circumstances . The court argued as follows :

“ The common feature of those cases can be summarised as the absence of identification with the totalitarian symbol , in the first case more emphatically , and in the latter one by virtue of the perpetrator ’s indifference towards the symbol connected to the incriminated conduct .

The situation in the present case , however , was quite the contrary .

PERSON used the CARDINAL - pointed red star in a political context and as a sign of solidarity felt for his fellow party member , that is , because he identified himself with the symbol , with its meaning known and communicated to the outer world . In this context , the defendant ’s concrete political credo is irrelevant : the statutory provision prohibits everyone , irrespective of one ’s conviction , from the use of totalitarian symbols , including the CARDINAL - pointed red star associated with NORP dictatorship . This statement remains true even if the symbol in question has dual meaning referring both to the totalitarian system mentioned above and to the international workers’ movement promoting the ascendance of large groups of society . ...

The entirety of the elements of this offence is defined as the legal hypothesis of a socalled “ conduct ” ( immaterial ) crime . This means that the offence will be committed merely by performing the sanctioned conduct ( dissemination , use in public or public display ) and no further condition or result , let alone actual fear or anxiety caused to those perceiving , is required . ”

The court concluded that the applicant ’s act was indeed dangerous to society .

Act no . DATE on LAW provides :

“ ( CARDINAL ) A criminal offence is an act perpetrated intentionally or DATE if the law also punishes negligent perpetration – by negligence , which represents a danger for society and for which the law orders the infliction of punishment .

( CARDINAL ) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional , social or economic order of GPE , or the person or rights of citizens . ”

“ ( CARDINAL ) Any person who ( a ) disseminates , ( b ) uses in public or ( c ) exhibits a swastika , an ORG - badge , an arrow - cross , a symbol of the sickle - and - hammer or a CARDINAL - pointed red star , or a symbol depicting any of them , commits an offence – unless a more serious crime has been committed – and shall be sentenced to a fine .

( CARDINAL ) The conduct prescribed under paragraph ( CARDINAL ) is not punishable if it is done for the purposes of education , science , art or in order to provide information about history or contemporary events .

( CARDINAL ) Paragraphs ( CARDINAL ) and ( CARDINAL ) do not apply to the insignia of GPE which are in force . ”


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

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

On DATE the applicant lodged a claim for the division of matrimonial property with ORG ( Sąd Rejonowy ) .

The proceedings are pending before the first - instance court .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .