Remainder inadmissible;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in GPE .

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

On DATE a third party brought criminal proceedings against the applicant for wrongful misappropriation . The third party claimed that the applicant had unlawfully used private funds belonging to his companies in order to increase the capital of a commercial bank ( PERSON ) and become a major shareholder in the said bank .

On DATE the Judicial Police attached to ORG of the ORG asked the third party to provide additional information in respect of the unlawful acts allegedly committed by the applicant .

On DATE , the ORG DATE newspaper published an article entitled “ The investigation files of GPE – strictly secret ? ” The article quoted statements by PERSON , CARDINAL of the prosecutors conducting the investigation against the applicant , of which the most relevant part reads as follows :

“ We have been accused of insisting on imposing [ on ORG ] an order not to leave the city , a measure which is usually taken when there are suspicions that somebody has committed an unlawful act . However , as I already told you and as [ can be seen ] from checks carried out by ORG [ Garda Financiară ] , here there have been unlawful acts committed , not only suspicions . In spite of that , we have proven to be humane , when at his [ ORG ’s ] request we allowed him to leave GPE for TIME . ”

On DATE the applicant was charged with fraud , forging documents and use of forged documents , embezzlement , using the goods of a commercial company against its interests and undermining the national economy , on account of the fact that , by acting on behalf of the private company ( ORG ) , which the applicant controlled as the major shareholder , he had allegedly made false statements in an official document submitted to ORG on DATE in order to obtain its permission to increase the capital of ORG by the amount of CARDINAL GPE Dollars ( ORG ) . More specifically , the applicant was suspected of declaring the aforementioned amount as his personal funds , when in fact it had been obtained as a loan taken out by ORG from a foreign bank , which was contrary to ORG regulations on acceptable sources of money used to increase a bank ’s capital .

On DATE the applicant brought a challenge against the CARDINAL prosecutors , including PERSON , charged with the investigation of his case at the time , arguing , inter alia , that press statements made by the said prosecutors on CARDINAL DATE in the GPE DATE newspaper DATE claiming that the applicant ’s financial investments were “ acts of fraud ” – amounted to a breach of his right to the presumption of innocence .

According to the applicant , his challenge of DATE against the prosecutors PERSON and PERSON was allowed by a final ORG and a new prosecutor was appointed to investigate his case . The applicant failed to include in the file a copy of the order of DATE .

On DATE the GPE DATE newspaper published an article entitled “ G.D. states that ORG should have been indicted long ago for CARDINAL of the proven crimes ” . The most relevant part of the article , which quoted statements by ORG , the NORP Minister of the Interior at the time , reads as follows :

“ ORG could be indicted for CARDINAL already proven crimes , namely the ones connected to the embezzlement through ORG , from ORG to ORG . MONEY taken by ORG from ORG for a factory in GPE were embezzled so that he could take over the majority of the shares in ORG . ( ... ) Although there is proof that several crimes have been committed by ORG , he is only under investigation for CARDINAL , and the prosecutor ’s investigation is lasting a suspiciously long time . ”

On DATE , the GPE DATE newspaper published an article entitled “ GPE and PERSON accused of undermining the national economy ” . Quoting the same prosecutor , PERSON , the relevant parts of the article read as follows :

“ On DATE in file no . CARDINAL of ORG , the file concerning the defendant ORG , the criminal investigation was extended with respect to the crime of undermining the national economy , punishable under LAW § CARDINAL of LAW . Hence , DATE , [ ORG ] used a state - owned public interest bank , ORG , in order to obtain certain financial facilities in the amount of MONEY , to be used for the reimbursement of certain loans contracted by his commercial company , ORG This undermined the national economy and disturbed the activity of ORG and , as a consequence , the national economy . ”

NORP By letter of CARDINAL DATE prosecutor PERSON , the prosecutor investigating the applicant ’s case at the time , asked ORG of GPE to confirm that he could continue the investigation in the case . He expressly stated that he did not have any personal interest or otherwise in respect of the investigation and that he would accept the Prosecutor General ’s decision . He informed ORG that if he was allowed to continue working on the case he would not be subject to any outside influence or pressure in carrying out the investigation .

On DATE , the Evenimentul Zilei published an article entitled “ PERSON found the solution for destroying the mafia in GPE overseas : The NORP should come with bazookas ” . The article quoted statements made by PERSON , ORG at the time . The most relevant part reads as follows :

“ In the case of ORG , who knew all about financial tricks [ ingineriile financiare ] and covered his tracks with lots of documents , the experts’ report is not finished yet . I believe that there is a PERCENT chance that he will also be sent to trial , but I would make a suggestion to the police to not just stick to the small cases of GPE , because the CARDINAL of them have [ done ] more than this . ”

In addition , the parties agree that a total of CARDINAL articles containing information on the investigation and the trial against the applicant were published DATE in all the major national newspapers , including PERSON , PERSON , GPE , GPE , ORG . Some of the most relevant story titles quoted by the applicant in this respect read as follows : “ The trap is tightening ” ( GPE , DATE ) ; “ ORG at millionaires ! ” ( GPE , DATE ) ; “ The return of the jackals ” ( GPE , DATE ) ; “ Sharks at large ” ( GPE , DATE ) ; “ ORG ’s companies have filled their bank accounts on ORG ’s back ” ( PERSON , DATE ) ; “ Just when the prosecutors were on the point of indicting him , ORG found refuge in a hospital in GPE ” ( ORG , DATE ) ; “ ORG ran away in the GPE ” ( ORG , CARDINAL DATE ) ; and “ The heroes ORG and GPE ( GPE , DATE ) .

By an order of DATE the Prosecutor General dismissed PERSON from his position of ORG of ORG and transferred him to the Secretarial and Public Relations Department . At the same time , PERSON was tasked with continuing the criminal investigation against the applicant . ORG held that the criminal investigation had been unreasonably lengthy without any objective reasons and that GPE , CARDINAL of the parties involved in the matter , had lodged a challenge and had complained about GPE

On DATE the applicant was indicted for making false statements in an official document , as he had not declared the true source of the money used for increasing the capital of PERSON .

NORP The investigation also continued separately in respect of the charge of undermining the national economy and using the goods of a commercial company against its interests . At the same time , the charges concerning fraud , forging documents , use of forged documents and embezzlement were dropped and the part of the criminal investigation covering those charges was closed on the grounds that the applicant ’s actions were found to have been lawful .

By a final Prosecutor ’s Order of DATE the criminal investigation initiated against the applicant for undermining the national economy was discontinued on the grounds that no unlawful act had been committed .

By a judgment of DATE the Bucharest ORG decided that the indictment of CARDINAL June DATE was null and void because the applicant had not been informed of the charges against him , as he had been in GPE at the time of his indictment . Consequently , the court ordered the file to be sent back to ORG .

NORP The prosecutor submitted an appeal on points of law ( recurs ) against the judgment of DATE .

By a judgment of DATE of ORG appeal was allowed and the case was sent back to the first - instance court for a retrial on the merits . ORG held that there had been no reason for the indictment to be annulled , as the decision of the investigating prosecutors to send the case before the court without informing the applicant of the charges against him had been in accordance with the legal provisions of LAW applicable to persons avoiding the investigative authorities . In reaching this decision , the court took into account the fact that neither the applicant nor his attorney had provided the investigators with an exact address at which the applicant could be summoned during the investigation .

By a final Prosecutor ’s Order of DATE the criminal investigation initiated against the applicant for using the goods of a commercial company against its interests was discontinued on the grounds that no unlawful act had been committed .

On CARDINAL DATE the first hearing in the retrial of the case was held before ORG following the judgment of DATE . The applicant was heard by the court . He argued , inter alia , that the criminal investigation against him had been based on political motives , a fact which could be confirmed by the negative media campaign conducted against him and by the public statements made by ORG representatives .

By a judgment of DATE the GPE ORG acquitted the applicant on the grounds that from all the evidence produced it emerged that his actions had been in accordance with the law . ORG appealed against the judgment .

By a judgment of DATE the ORG allowed ORG appeal , convicted the applicant of making false statements in an official document and sentenced him to DATE of imprisonment , a sentence which was considered pardoned according to the law . The court held that , on the basis of the evidence available in the file , the applicant had made false statements in an official document and had been aware of the legal consequences of his statements . The applicant lodged an appeal on points of law ( recurs ) against the judgment . He argued that the criminal investigation against him had been politically motivated , a fact confirmed by the alleged failure of the domestic courts to take into account and to examine the evidence submitted by him in his defence . In addition , the applicant argued that the domestic courts had wrongfully assessed the evidence , had misinterpreted the applicable legal provisions and had ignored the fact that the indictment brought against him had been null and void because the investigating prosecutor had failed to inform him of the charges brought against him prior to sending the case before the domestic courts .

By a final judgment of DATE ORG dismissed the applicant ’s appeal on points of law and his conviction became final . The court held , on the basis of the evidence available in the file , that the lower courts had correctly assessed the evidence and interpreted the applicable legal provisions and that the applicant had been informed of the charges brought against him by ORG .

On DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and on CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and DATE the applicant lodged repeated extraordinary appeal of annulment ( recurs în anulare ) requests against the final judgment of DATE with ORG attached to ORG . He argued , inter alia , that his right to the presumption of innocence had been breached on account of an aggressive media campaign led by ORG and the Minister of the ORG which had resulted in the criminal investigation being opened against him and in him being indicted .

On DATE the applicant ’s extraordinary appeal applications were dismissed by ORG attached to ORG on account of statutory amendments to the applicable rules of criminal procedure abolishing that form of appeal .

The relevant provisions of LAW in force at the relevant time are worded as follows :

A person is considered innocent pending a final court conviction . ”

“ ( CARDINAL ) The person accused of or charged with a criminal offence does not have to prove his innocence .

( CARDINAL ) Where evidence is adduced proving a person ’s guilt , the accused or the person charged with a criminal offence has the right to rebut the evidence . ”


COLLOREDO MANSFELDOVÁ v. THE CZECH REPUBLIC

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

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

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

The applicant is the daughter and heir of PERSON , a NORP nobleman who died in DATE . On DATE during the NORP occupation of GPE , the latter ’s estate and castle in PERSON were confiscated by the occupying forces . After the war and after the estate had been returned to the applicant ’s family , the former ORG ( zemský národní výbor ) confiscated the estate on the ground that the applicant ’s father was to be considered NORP , as he had stated that he was of NORP origin in a questionnaire during the war .

On DATE ORG , deciding upon an appeal by the applicant ’s late father , quashed the confiscation decision finding that the statutory requirements necessary for the confiscation had not been met in his case . The estate remained in the possession of the ORG .

In DATE the applicant filed an action with the ORG ( okresní soud ) , whereby she sought to order the ORG represented by ORG ( památkový ústav ) to conclude with her a restitution agreement with regard to the castle and other facilities under LAW . On DATE ORG rejected her action but the ORG Králové ORG ( krajský soud ) quashed this judgment on CARDINAL DATE and sent the case back to ORG which , in a judgment of DATE , dismissed the applicant ’s action for the second time , finding that she did not meet requirements enshrined in the restitution legislation , including the requirement that the transfer or passing of the ownership of the property occurred in DATE should have been due to racial persecution .

The judgment was subsequently upheld by ORG .

In judgment no . CARDINAL Cdo CARDINAL/CARDINAL adopted on DATE ORG ( PERSON ) , deciding upon the applicant ’s appeal on points of law , quashed both judgments . In its view , the confiscation by GPE had been due to the applicant ’s NORP origin , as NORP were regarded by the NORP as an inferior race , and therefore amounted to racial persecution within the meaning of section CARDINAL(CARDINAL ) of the Extra - Judicial Rehabilitation Act . It noted that the estate had been taken under a confiscation measure that applied to NORP . Having regard also to the fact that the estate had been taken from the applicant ’s family twice , first by the NORP and then by the communist regime , the court found that the requirement of section CARDINAL(CARDINAL ) of the LAW was met . It stated obiter dictum that any interpretation of the term of racial persecution , limiting the application of that notion only to NORP , would be contrary to LAW and to LAW práv a svobod ) . The court held in particular :

“ Having regard to the objectives of the restitution laws , it appears unsustainable to ORG to interpret the notion of racial persecution in a restrictive manner when the NORP administration of ... [ occupied GPE ] sanctioned the applicant ’s ascendant for “ efforts adverse to the Reich ” .

On DATE ORG , bound by ORG judgment , found in favour of the applicant and ordered the defendant to conclude a restitution agreement with her and to transfer the ownership of the estate to her . On DATE ORG upheld this judgment .

On CARDINAL and DATE the applicant concluded with ORG ( Národní památkový ústav ) , successor in title to ORG , the restitution agreement on the transfer of the estate to her . On DATE she was registered as the owner of the estate with the land register and during DATE entered into possession in accordance with the restitution agreement .

On DATE ORG declared inadmissible an appeal on points of law by ORG which , on DATE , made a constitutional appeal alleging an infringement of its property rights and the right to judicial protection under the Charter .

In a judgment of DATE ORG quashed the lower courts’ decisions and remitted the case to ORG . It admitted that in civil proceedings , it was incumbent upon the parties to assert their rights and to allege relevant facts , but considered that the ordinary courts were nevertheless obliged to search for and take further evidence on their own initiative . It found that , not having done so , they had breached LAW . According to the court , the conclusion of the lower courts that the applicant ’s late father had met the conditions set by LAW was erroneous , since he had been registered as NORP when filling in a questionnaire . It added that , the courts had omitted to take into consideration certain material , including an essay entitled “ The PERSON family and the PERSON family of PERSON ” of which ORG took judicial notice , which showed that the applicant ’s late father had been disloyal during the war as he had applied for NORP citizenship .

The court also considered that the confiscation of the estate by the NORP occupying forces could not be regarded as constituting racial persecution of the applicant ’s late father within the meaning of the Extra - Judicial Rehabilitation Act , as ORG had found on DATE . It was apparent from sections CARDINAL ) and CARDINAL(CARDINAL ) of this LAW , from its aim and from the record on the debate preceding the adoption of LAW no . CARDINAL in the lower chamber of the ORG , that the term of “ racial persecution ” covered in particular NORP who were victims of the Holocaust . This was , however , not the case of the applicant ’s father . The court rejected as inappropriate ORG obiter dictum that such a restrictive interpretation would constitute inequality among victims of the period of lack of freedom and would privilege CARDINAL group of people on the ground of race contrary to LAW and the LAW . Indeed , the principle of equality could not be interpreted as an absolute one and equality among citizens could not be construed as an abstract category , but as a relative equality within the meaning of all modern constitutions . A restrictive interpretation of the notion of racial persecution under LAW was not contrary to the principle of equality .

Apparently on DATE ORG asked the parties to the procedure whether they would propose further evidence . It also requested the applicant to specify whether she would propose further evidence in support of her assertions that the confiscation had taken place due to racial persecution and that the estate had been taken away and passed into the ownership of ORG in the relevant period within the meaning of the Extra - Judicial Rehabilitation Act . It also requested the defendant to indicate whether it would propose any further evidence to support its assertion that the NORP citizenship of the applicant ’s late father had legally ceased to exist . Both parties submitted further documentary evidence .

At the hearing of DATE ORG considered extensive documentary evidence , including a historical essay by Dr. PERSON called “ The PERSON family and the PERSON family of PERSON ” ( PERSON a opočenští PERSON ) , the so - called administrative record and correspondence between ORG and ORG of DATE and DATE when these CARDINAL authorities were searching for documents concerning the examination of the citizenship of the applicant ’s late father .

On DATE ORG , having held another hearing , dismissed the applicant ’s action . It found that all the requirements for restitution had been met with the exception of loss of property due to racial persecution . The court underlined that when assessing that requirement it was bound by the ruling of ORG of DATE .

On DATE ORG upheld this judgment .

On DATE ORG rejected the applicant ’s appeal on points of law , referring to the binding interpretation by ORG of the notion of racial persecution .

On DATE the applicant appealed to ORG , asserting an erroneous interpretation of the notion of racial persecution within the meaning of section CARDINAL(CARDINAL ) of the Extra - Judicial Rehabilitation Act and procedural shortcomings in consequence of which she had not put forward any evidence establishing that her father ’s mother was of NORP origin . It appears that her constitutional appeal remains undecided .

On DATE the ORG represented by ORG filed against the applicant an action for determination of ownership of the estate with ORG .

In a judgment of DATE the court granted the ORG ’s action and found it to be the owner of the estate and decided that the ORG was empowered to maintain the estate .

On DATE ORG quashed this judgment as to ORG finding that the ORG was empowered to upkeep the estate , stayed the proceedings in this respect and transferred this part of the case to ORG . It noted that ORG had been bound by the judgment of ORG of DATE . The judgment became final on DATE .

On DATE the ORG was registered in the land register as the owner of the estate .

The act provides for mitigation of injustices caused by the NORP rule in GPE from CARDINAL DATE to CARDINAL DATE ( “ the relevant period ” ) .

Under section CARDINAL(CARDINAL ) property injustices caused by , inter alia , unlawful practices carried out in the relevant period , are to be mitigated , inter alia , by the surrender of the property , provided that the injustices originated in political persecution or in a practice contravening universally accepted human rights and freedoms ( section CARDINAL(CARDINAL)(c ) ) .

Section CARDINAL(CARDINAL ) extended the application of the LAW to natural persons who had lost their property due to racial persecution during the Second World War and were entitled to restitution of it after the war pursuant to Decree no . CARDINAL/CARDINAL or Act no . CARDINAL and in respect of whom the NORP regime established on DATE had failed to grant such claims whilst pursuing its policy of political persecution or carrying out practices contrary to universally accepted human rights and freedoms .

Under section CARDINAL if a chamber comes to a legal view differing from that expressed by the court in a previous ruling , it shall submit the issue to the ORG for its consideration . The latter ’s legal view is binding on the chamber in further proceedings .

Under section CARDINAL(CARDINAL)(a ) , a constitutional appeal may be lodged pursuant to section CARDINAL(CARDINAL)(d ) of the LAW by a natural or legal person , alleging that its fundamental rights or basic freedoms guaranteed by the constitutional law have been infringed as a result of a final decision in proceedings to which it was a party , a measure , or any other infringement by a public authority .

ORG rejected a constitutional appeal lodged by a group of MPs seeking to abrogate the adjective “ racial ” from section CARDINAL(CARDINAL ) of the Extra - Judicial Rehabilitation Act . In their view , the term “ racial persecution ” created inequality on the ground of race among those whose property was adversely affected during the occupation . They asserted that it manifestly contravened LAW adopted by ORG in DATE and LAW . In the court ’s view the impugned provision had to be interpreted in conformity with these legal instruments . It held , inter alia :

“ [ I]t is evident that racial discrimination under ORG concerned a much larger group ( groups ) of people than only those concerned by LAW [ i.e. NORP ] , and that the legal terms such as “ national , racial and political ” used in section CARDINAL(CARDINAL ) of Decree no . CARDINAL/CARDINAL are largely superfluous . ”

ORG rejected a constitutional appeal lodged by ORG . The ORG had contested the legal assessment of ordinary courts as to which ORG body should be held liable to pay compensation to a private individual . Having noted that that issue was governed by public law , the court ruled that the ORG could not be regarded as an owner disposing freely of its property , but merely as a ORG body acting in its public authority , which does not have a standing to appeal to ORG .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants live in various towns of GPE and GPE of GPE .

The applicants , all former or active military servicepersons , were entitled to certain service - related benefits , to be paid by ORG of GPE . In DATE they sued the military authorities claiming the arrears related to those benefits .

On the dates set out in appendixes ORG . CARDINAL , CARDINAL and CARDINAL the domestic courts granted the applicants ' claims and ordered the military authorities to pay them the respective amounts . Some of the awards were denominated in NORP roubles ( RUB ) , whereas others were denominated in MONEY ( USD ) .

On various dates the courts issued writs of execution . The applicants forwarded them with accompanying documents to the treasury office . However , the writs were returned to the applicants unexecuted . The treasury office explained to some of the applicants that ORG ( the debtor ) had no funds available . The applicants then addressed the writs of execution to ORG . However , the judgments remained unexecuted .

In DATE some of the applicants wrote letters to ORG and other ORG bodies seeking the enforcement of the judgments . ORG replied that they had no power to execute the judgments and transfer the money from the accounts of ORG without the consent of the latter . ORG informed the applicants that the judgments could not be executed since no funds had been allocated for that purpose .

On the dates set out in appendix no . CARDINAL the applicants listed therein received the amounts due pursuant to the execution writs . They submitted copies of banking receipts as evidence in that respect .

The applicants listed in appendix no . CARDINAL were awarded various sums of money denominated in ORG , to be converted into RUB at a rate applicable on the date of the judgment . However , the payments were made to them at a rate applicable on the date of the execution , which was lower . As a result , they received lesser amounts in RUB than they had expected . The applicants claimed that the judgments in their favour were thus not executed in full . They submitted copies of banking receipts and information on the official exchange rates ( those of ORG ) on the relevant dates .

Mr Sedykh , PERSON and Mr PERSON were also awarded various amounts denominated in DATE ( see appendix no . CARDINAL ) . PERSON was awarded a sum in FAC at a rate applicable on the date of execution . The judgments in favour of PERSON and Mr PERSON did not indicate the exchange rate applicable for the payment . The applicants claimed that the judgments in their favour were not executed in full referring to the same arguments as the applicants listed in appendix no . CARDINAL ( see paragraph CARDINAL above ) . According to the Government the judgments in favour of the applicants listed in appendix no . CARDINAL and in favour of Mr GPE , PERSON and Mr PERSON were fully executed .

On DATE the lawyer of the above CARDINAL applicants addressed the writs of execution to ORG . According to the official stamp of ORG , they were received on DATE .

On DATE ORG returned the documents along with the writ of execution to PERSON on the ground that his lawyer had not submitted all the necessary supporting documents . According to the applicants all the necessary documents were submitted . In DATE the applicants ' lawyer re - submitted the documents of Mr PERSON to the Ministry of Finance .

According to PERSON , her documents were apparently returned to her address indicated on the writ of execution . Since PERSON did not live at that address at the time , the post office sent the documents back to ORG . According to the Government , ORG have never received PERSON documents .

The judgments in favour of Mr PERSON and PERSON ( see appendix no . CARDINAL ) are not executed to date .


The applicant , Mr PERSON , is a GPE national , who was born in DATE and has no known fixed abode in the GPE . He is represented before the ORG by PERSON PERSON . , a lawyer practising in GPE .

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

In DATE a combined fiscal and criminal investigation under the code name PERSON ( hummingbird ) was opened into a criminal organisation allegedly engaged in large - scale shipment of drugs from GPE to the GPE , the GPE and GPE . For this purpose an investigation team was created composed of police officers , fiscal investigation officers and public prosecutors ( the PERSON - team ) . Over DATE numerous witnesses and suspects were questioned , requests for mutual legal assistance were made to , inter alia , GPE , GPE , the GPE , GPE and GPE , rafts packed with drugs were seized in GPE , a search operation was carried out in co - operation with the navy and barrels filled with drugs were salvaged by divers off the coast of the GPE .

The investigation concentrated , inter alia , on the following shipments :

the shipment of QUANTITY of marihuana to the GPE aboard the NORP / PERSON ;

the shipment of QUANTITY of marihuana to the GPE and GPE aboard the PERSON ;

the shipment of QUANTITY of marihuana to GPE and the GPE aboard ORG .

In DATE a certain PERSON , who was under investigation for his alleged participation in ORG CARDINAL shipment , gave a statement to a GPE public prosecutor CARDINAL of these shipments . At the time he was being detained in GPE , where he had been convicted of involvement in another shipment of drugs . He indicated that he was willing to make further statements in exchange for an early extradition to the GPE . After he had served his prison sentence in GPE , PERSON spent DATE in detention pending extradition and in DATE he arrived in the GPE . He was detained on remand on suspicion of participation in the above - mentioned shipments of drugs . He made further statements to the police . CARDINAL of these statements consisted of falsehoods . According to PERSON , his statements contained falsehoods because he did not trust his lawyer . In DATE a written agreement was concluded between PERSON and the public prosecutors ORG and PERSON According to the agreement , PERSON undertook to make truthful statements about the criminal offences of which he had knowledge without relying on his right to remain silent and to testify before a judge if requested to do so . In exchange for his statements he was released from detention on remand and was given an undertaking that if the prison sentence imposed on him exceeded the time he had already spent in detention pending extradition and detention on remand , the sentence would not be executed . Furthermore , the public prosecution service ( openbaar ministerie ) undertook to take appropriate measures to safeguard his safety as far as possible . If PERSON reneged on his obligations , the prosecution service reserved the right to use his statements and would no longer be bound to comply with its part of the agreement .

Thereupon , PERSON continued to make detailed statements about the preparation for and the carrying out of the shipments of drugs as well as about the people involved , including himself and the applicant .

In DATE the lawyers of a certain A. , a suspect in the PERSON investigation , contacted the public prosecution service . A. was aware of the fact that he was under investigation in the GPE and indicated that he was interested in talking to the prosecution service . An agreement DATE and the public prosecutors T. and PERSON was concluded and was consigned to writing . PERSON undertook to make truthful statements about the criminal offences of which he had knowledge without relying on his right to remain silent and to testify before a judge if requested to do so . In exchange , he was enabled to trade off any criminal prosecution in the GPE in respect of the criminal offences to which he had confessed by making a payment of MONEY ( NLG ) ( MONEY ( ORG ) ) . The public prosecution office undertook to inform the authorities of several other countries about A. ’s co - operation . The prosecution service reserved the right to use ORG ’s statements and not to comply with its part of the agreement if PERSON reneged on his obligations . A. made CARDINAL statements about the organisation of the drugs shipments and the people involved , including himself and the applicant . The first CARDINAL statements contained demonstrable falsehoods .

ORG were also questioned by ORG ( “ ORG ” ) about several shipments of drugs .

In DATE the applicant , who was by then suspected of being one of the ringleaders of the criminal organisation responsible for the shipments , was arrested and detained on remand .

The applicant was charged with membership of a criminal organisation and participation in the shipment of drugs aboard the NORP / PERSON , the PERSON and ORG CARDINAL . DATE and DATE , CARDINAL hearings were held before ORG ( arrondissementsrechtbank ) of GPE . On DATE ORG convicted the applicant of all charges and sentenced him to CARDINAL years’ imprisonment . The applicant lodged an appeal and DATE and DATE , CARDINAL hearings were held before ORG ( gerechtshof ) of GPE .

In the course of the proceedings before ORG and ORG the following relevant events occurred :

ORG were questioned extensively before the investigating judge , before ORG and before ORG about their motives for testifying , about the falsehoods in their initial statements , about the agreements reached with the public prosecution service and about the contents of their statements . PERSON was also questioned about the course of events during his imprisonment in GPE in DATE .

Both ORG claimed the right to remain silent in respect of certain questions put by the defence . After having heard the arguments of ORG as well as the submissions of the defence and of the prosecution , the domestic courts ordered that ORG answer most of these questions . They were excused from answering some questions relating to their contacts with the ORG and their financial situation , since replying to these questions was considered likely to incriminate or endanger them .

Numerous other witnesses were questioned , inter alia , business and personal contacts of ORG , about the latter witnesses’ reliability and credibility . A NORP investigating judge was questioned about PERSON ’s situation in DATE . Furthermore , CARDINAL law professors and an expert who had made a comparative law study on agreements with witnesses were extensively questioned by ORG about all manner of legal issues relating to this kind of agreement . The public prosecutors ORG and PERSON were questioned before ORG about the course of the investigation , the agreements with ORG and their contacts with several other witnesses .

ORG rejected the defence ’s request to question PERSON , PERSON ’s lawyer in GPE in DATE , being of the opinion that his testimony could not have any bearing on any decision to be taken in the case against the applicant . ORG reasoned in this connection that the questions which the defence wanted to put to him concerned the agreement concluded between PERSON and the public prosecution service in DATE , whereas PERSON had been PERSON ’s lawyer in DATE .

In the course of the proceedings before ORG it became clear that the public prosecution service and PERSON ’s lawyer , PERSON , had been in contact and had exchanged correspondence relating to various financial aspects of the agreement concluded between the public prosecution service and ORG of this correspondence was added to the case file and PERSON , the public prosecutors ORG and PERSON as well as PERSON were questioned before ORG about their correspondence .

During the hearings and in their pleadings before ORG and ORG , the defence extensively challenged the lawfulness of the agreements and their contents , sought to cast doubt on the credibility of the witnesses PERSON and A. and complained about the withholding of information relating to the financial aspects of the agreement with PERSON and the fact that the witnesses had been excused from answering certain questions in spite of the condition in the agreements that they would not invoke their right to remain silent . The defence further alleged that the prosecution had acted in bad faith and had tried to mislead both the defence and the judges on several occasions .

In a judgment of DATE ORG quashed ORG decision , convicted the applicant on all charges and sentenced him to DATE and CARDINAL months’ imprisonment and a fine of NLG CARDINAL ( EUR CARDINAL ) .

The judgment contained a lengthy legal analysis of the compatibility of the agreements concluded between the public prosecution service and the witnesses PERSON and GPE with GPE law , the political developments on this issue , the principles of proper conduct of proceedings and the requirements of LAW . ORG concluded that the agreements were permissible and lawful except for the undertaking made to PERSON to the effect that he would not have to serve a possible prison sentence . The ORG considered :

“ The public prosecution service is free to make decisions about the investigation and prosecution of criminal offences , including the giving of an undertaking to demand that a certain penalty be imposed . The public prosecution service is not free to assume the authority that any penalty which might be imposed on PERSON by a judge would not have to be executed ... The decision to include this undertaking in the agreement with PERSON is thus ... not lawful . This unlawfulness ... however , is not of such a nature that the prosecution case against the applicant should be declared inadmissible . The present criminal proceedings are characterised by the fact that , for the first time , the conclusion of agreements with co - suspects has been submitted for the full consideration of a judge . No plausible grounds have been made out for concluding that the public prosecution service acted in bad faith , and thus intentionally breached the law , merely in order to frustrate the interests of the integrity of criminal proceedings . Nor have plausible grounds been made for concluding that the public prosecution service entered into the impugned undertaking with the purpose of acting in contempt of the decision of the judge in the present case . ”

Although it decided that the prosecution of the applicant was not barred , ORG considered that the unlawful undertaking made to PERSON was one of the factors which should lead to a reduction of his sentence from the CARDINAL years’ imprisonment it would have imposed , to DATE . ORG considered that the remainder of the agreements was permissible under GPE law and that the conclusion of the agreements had neither violated the principles of the proper conduct of proceedings nor the applicant ’s right to a fair trial . It proceeded to examine whether the statements of ORG could be used in evidence :

“ The extent to which the statements of ORG may be used in evidence nevertheless requires further examination . It has to be examined whether ORG made their statements in the absence of pressure or constraint . Partly in view of the agreements underlying the statements , consideration should also be given to the question whether the defence had the opportunity adequately to scrutinise the statements of ORG

Such further examination is also necessary because the reliability and credibility of the statements of ORG may have been adversely affected by what they felt obliged to do or by what they deemed was in their own best interests , given the contents of the agreements with the public prosecution service . In addition , it should be borne in mind that these witnesses stand accused of offences relating to more or less the same set of facts as the defendant . ”

Accordingly , ORG went on to examine closely the reliability of ORG and the credibility of their statements . In this context , it had regard to the position and personality of both PERSON , the possibilities which the defence had had to examine their statements , the contents of these statements , the other evidence , the impression both witnesses had given the court as well as the applicant ’s response to ORG and PERSON ’s statements . ORG considered that their statements were detailed and disclosed concrete reasons for their knowledge . Although ORG did not know each other , their statements corresponded and were corroborated by the statements of CARDINAL other witnesses as well as by other evidence . ORG also considered that the applicant had not submitted any facts to challenge the statements of ORG these considerations into account , and stating explicitly that this matter had to be treated with particular caution ( bijzondere behoedzaamheid ) , ORG found that the statements made by ORG were reliable and credible .

ORG further considered :

“ [ The ] principles of the proper conduct of proceedings imply above all that the defence , confronted with an agreement concluded by the public prosecution service with a witness , be given complete disclosure – with a view to the exercise of the rights of the defence – about the existence of the agreements , the manner of their conclusion as well as their contents , and also that the defence be given every opportunity to challenge the manner of conclusion and the contents of the agreements .

These requirements have been completely met . The existence of the agreements and the identity of ORG were disclosed from the outset . The agreements were put down in writing and were included in the case file together with all relevant documents . In the presence of the defence , ORG have been questioned as witnesses on this issue at every stage of the proceedings , and [ the prosecutors ] T. and PERSON have been questioned about it at the trial on appeal . It has appeared that no relevant difference of opinion exists between the prosecutors and ORG about the meaning of the agreements and the way in which they were concluded . Even apart from that , the defence has been enabled to obtain all necessary information concerning the agreements . ”

With regard to the complaint that information about the negotiations between the public prosecution service and PERSON ’s lawyer concerning the financial aspects of the agreement had initially been withheld , ORG considered that the applicant had been able to raise this issue both before ORG and ORG and to have it examined fully : part of the correspondence between the public prosecution service and PERSON had been added to the case file and counsel for the defence had been able to question PERSON , PERSON and the public prosecutors PERSON and CARDINAL on this issue . The allegation that the prosecution had intentionally misrepresented the amount of the financial reward promised to PERSON as well as the contents of the negotiations was dismissed as being implausible .

ORG further dismissed as unfounded a number of other accusations made by the defence to the effect that the public prosecution service had intentionally violated the rights of the applicant . It convicted and sentenced the applicant as set out above . Apart from the statements made by ORG , ORG also relied on the statements of CARDINAL other witnesses , financial documents , several official reports of police officers and the results of the examination of samples of drugs .

The applicant lodged an appeal on points of law with ORG ( PERSON ) , submitting an extensive statement of grounds of appeal .

ORG gave judgment on DATE . It dismissed the appeal in its entirety .

In response to CARDINAL complaints concerning the contents and conclusion of the agreements with ORG , and with reference to its own case - law ( decision of CARDINAL DATE , PERSON Netherlands Law Reports DATE , no . CARDINAL ) and to a number of Commission decisions ( X. v. GPE , no . DATE , Commission decision of DATE , ORG and Reports CARDINAL , p. CARDINAL ; ORG v. GPE , no . ORG decision of DATE , unreported ; and PERSON v. the GPE , no . ORG decision of CARDINAL DATE , unreported ) , ORG reiterated that , as long as the conclusion of agreements was not regulated by law , the question to be examined was whether the actual circumstances of every case were compatible with the fundamental rights of an accused as guaranteed by LAW and with the principles of the proper conduct of proceedings derived from , inter alia , LAW . Noting that the reliability of statements of a suspect in exchange for promises by the prosecution may be adversely affected by what a witness feels obliged to do or by what he or she deems to be in their own best interest , it considered that this kind of witness should be questioned by a judge , preferably in open court , and , where the credibility of a witness was challenged , it should appear clearly from the trial courts’ judgments that this issue had been examined .

ORG upheld the decisions of ORG regarding the agreements and dismissed CARDINAL other complaints , adopting mainly summary reasoning .

In DATE serious concerns arose over the methods of criminal investigation used in cases concerning organised crime . A parliamentary commission of inquiry ( parlementaire enquêtecommissie ) was instituted , which presented its final report on DATE . In this report agreements concluded with suspects testifying against co - accused were criticised . The commission was of the opinion that these kinds of agreements should be explicitly regulated by law and should in no event be allowed to lead to complete immunity from prosecution . The Minister of ORG subscribed to this opinion and legislation is now under preparation to regulate agreements with criminal witnesses .

LAW ) , insofar as relevant , provides that a suspect is not obliged to reply to questions put to him or her by a judge or investigating officer .

Article CARDINAL of the Code of Criminal Procedure provides that a witness is allowed to refrain from answering questions if replying to those questions would expose him or her to the risk of a criminal conviction .


The first applicant , PERSON , is a NORP national . The second applicant , Mr PERSON , is a NORP national . Both applicants live in GPE ( GPE ) . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE , and by PERSON PERSON , a university professor in GPE . ORG ( “ the Government ” ) were represented by their Agents , PERSON , ORG , and , subsequently , PERSON , PERSON , of ORG .

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

The case concerns several provisions of the Law of CARDINAL DATE on restrictions on the secrecy of mail , post and telecommunications ( Gesetz PERSON Brief- , Post- PERSON ) , also called “ the G CARDINAL Act ” , as modified by LAW of DATE ( Verbrechensbekämpfungsgesetz ) .

It notably concerns the extension of the powers of ORG ( PERSON ) with regard to the recording of telecommunications in the course of so - called strategic monitoring , as well as the use ( PERSON ) of personal data obtained thereby and their transmission to other authorities . Strategic monitoring is aimed at collecting information by intercepting telecommunications in order to identify and avert serious dangers facing GPE , such as an armed attack on its territory or the commission of international terrorist attacks and certain other serious offences ( see “ Relevant domestic law and practice ” below , paragraphs CARDINAL et seq . ) . In contrast , so - called individual monitoring , that is , the interception of telecommunications of specific persons , serves to avert or investigate certain grave offences which the persons monitored are suspected of planning or having committed .

The first applicant is a freelance journalist who works for various NORP and foreign newspapers , radio and television stations on a regular basis . In particular , she investigates matters that are subject to the surveillance of ORG , notably armaments , preparations for war , drug and arms trafficking and money laundering . In order to carry out her investigations , she regularly travels to different countries in LOC and LOC and LOC , where she also meets the persons she wants to interview .

The second applicant , an employee of ORG , submitted that he took messages for the first applicant when she was on assignments , both from her telephone and from his own telephone . He then transmitted these messages to wherever she was .

On DATE the applicants lodged a constitutional complaint with ORG .

They alleged that certain provisions of LAW amending LAW disregarded their fundamental rights , notably the right to secrecy of telecommunications ( LAW , the right to self - determination in the sphere of information ( LAW and CARDINAL § CARDINAL of LAW ) , freedom of the press ( LAW ) and the right to effective recourse to the courts ( LAW ) .

In the ORG submission , technological progress had made it possible to intercept telecommunications everywhere in the world and to collect personal data . Numerous telecommunications could be monitored , in the absence of any concrete suspicions , with the aid of catchwords which remained secret . Strategic monitoring could then be used in respect of individuals , preventing the press from carrying out effective investigations into sensitive areas covered by the LAW .

ORG , having held a hearing , delivered its judgment on DATE ( running to CARDINAL pages ) . It found that the constitutional complaint lodged by the second applicant was inadmissible . The court noted that a constitutional complaint could be lodged directly against a statute if the person concerned could not know whether there had actually been an implementing measure applying the statute to him or her . The complainant , however , had to substantiate sufficiently his or her argument that his or her fundamental rights were likely to be breached by measures taken on the basis of the impugned statute .

ORG noted that it was irrelevant that the applicants did not reside in GPE , because the impugned provisions were aimed at monitoring international telecommunications . However , it held that , unlike the first applicant , the second applicant had failed to substantiate sufficiently his claim that his rights under LAW were likely to be interfered with by measures based on the impugned provisions of the amended LAW . In the absence of any further details , the mere fact that he dealt with the first applicant ’s telecommunications in her absence was not sufficient to demonstrate this .

NORP Partly allowing the first applicant ’s constitutional complaint , ORG held that certain provisions of LAW were incompatible or only partly compatible with the principles laid down in LAW ( see “ Relevant domestic law and practice ” below , paragraphs CARDINAL et seq . ) . In particular , section CARDINAL(CARDINAL ) , first and second sentence , point CARDINAL , section CARDINAL(CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , first sentence , ( CARDINAL ) , first sentence , ( CARDINAL) , second sentence , and section CARDINAL(CARDINAL ) , third sentence , of the LAW were found to be incompatible with LAW ( see paragraphs CARDINAL et seq . below ) . It fixed a deadline of DATE for the legislature to bring the situation into line with the LAW .

On DATE a new version of the G CARDINAL Act came into force ( BGBl . I DATE , pp . CARDINAL , CARDINAL ) and MONEY in its version as amended by LAW of DATE ceased to apply .

The Basic PERSON provides for the following fundamental rights , in so far as relevant :

“ ( CARDINAL ) Everyone shall have the right freely to express and disseminate his opinions in speech , writing and pictures and to obtain freely information from generally accessible sources . Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed . There shall be no censorship .

( CARDINAL ) These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour . ”

“ ( CARDINAL ) Secrecy of mail , post and telecommunications shall be inviolable .

( CARDINAL ) ORG may be ordered only pursuant to a statute . Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the GPE or of a Land , the statute may provide that the person concerned shall not be notified of the restriction and that review by the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people ’s elected representatives . ”

( CARDINAL ) If a person ’s rights are violated by a public authority , he may have recourse to the courts . If no other jurisdiction has been established , the civil courts shall have jurisdiction . LAW , second sentence , remains unaffected by this paragraph . ”

The separation of legislative powers between the Federation and the ORG is laid down in Articles CARDINAL et seq . of LAW . Pursuant to LAW , in principle , have the right to legislate in so far as LAW does not confer legislative power on the Federation . Such legislative power is conferred on the Federation , in particular , in LAW :

“ The Federation shall have exclusive power to legislate [ ausschließliche PERSON ] on :

NORP foreign affairs and defence , including the protection of civilians ;

Being the statute envisaged by LAW , second sentence , of LAW ( cited above , paragraph CARDINAL ) , which provides for exceptions to the general rule of inviolability of telecommunications , the LAW DATE on restrictions on the secrecy of mail , post and telecommunications ( Gesetz PERSON Brief- , Post- PERSON ) , also called “ the G CARDINAL Act ” , lays down the conditions under which the authorities may introduce the restrictions referred to in that provision of LAW .

In a judgment delivered on DATE ( PERSON and Others v. GPE , Series A no . CARDINAL ) , the ORG held that the provisions of the G CARDINAL Act of CARDINAL DATE , in its original version and as regards the monitoring of individuals , did not contravene the Convention . It found that the NORP legislature was justified in considering that the interference resulting from the legislation in question with the rights guaranteed by LAW was necessary in a NORP society within the meaning of paragraph CARDINAL of that Article . The ORG also considered that the remedies provided for in the G CARDINAL Act complied with the requirements of LAW .

LAW of DATE on the fight against crime amended the G CARDINAL Act . Among other things , it extended the range of subjects in respect of which “ strategic monitoring ” ( as opposed to monitoring of individuals ) could be carried out . In the original version of LAW , such monitoring was permitted only in order to detect and avert the danger of an armed attack on GPE and at that time was therefore merely focused on the GPE belonging to ORG . Furthermore , owing to technical progress it had become possible to identify the telephone connections ( ORG ) involved in an intercepted telecommunication .

Pursuant to the provisions of the G CARDINAL Act which either remained unchanged by LAW or were not contested in the present case , ORG the Federation and the Länder ( Verfassungsschutzbehörden des Bundes und der Länder ) , ORG ( PERSON ) and ORG were entitled to monitor and record telecommunications within their own sphere of activities ( section CARDINAL(CARDINAL ) of the G CARDINAL Act ) . Monitoring of individuals was limited to serious threats to national security ( for example , high treason or threatening the democratic order ) and was permissible only if less intrusive means of investigation had no prospect of success or were considerably more difficult ( section CARDINAL of the G CARDINAL Act ) . As to strategic monitoring , only the head of ORG or his deputy were entitled to lodge an application for a surveillance order . The application had to be lodged in writing , had to describe and give reasons for the nature , scope and duration of the measure and had to explain that other means of carrying out the investigations either had no prospect of success or were considerably more difficult ( section CARDINAL of the G CARDINAL Act ) .

Restrictions on the secrecy of telecommunications were to be ordered by the Federal Minister assigned by the Chancellor or the highest authority of the Länder ( in respect of applications by their Offices for ORG ) . The order was made in writing and specified the exact nature , scope and duration of the monitoring measure . The duration of the measure was to be limited to a maximum of DATE ; the execution of the measure could be prolonged for a maximum of DATE at a time as long as the statutory conditions for the order were met ( see section CARDINAL of the G CARDINAL Act ) .

The monitoring measures authorised were to be carried out under the responsibility of the requesting authority and under the supervision of a staff member qualified to hold judicial office . Monitoring had to be discontinued immediately if the conditions of the monitoring order were no longer met or the measure was no longer necessary ( section CARDINAL of the G CARDINAL Act ) .

Section CARDINAL(CARDINAL ) provided that ORG was to verify whether the personal data obtained by measures taken under subsection CARDINAL of section CARDINAL were necessary to pursue the aims laid down in that subsection .

ORG found that in its present version section CARDINAL(CARDINAL ) was incompatible with LAW , second sentence , of LAW . It found that the provision did not contain sufficient safeguards to guarantee that personal data which were not destroyed or deleted as being unnecessary for the purposes of ORG would be used only for the purposes which had justified their collection . Furthermore , the provision also failed to comply with the identification requirements flowing from LAW . In addition , there were insufficient safeguards to guarantee that ORG would only use such data as were relevant for the dangers listed in section CARDINAL(CARDINAL ) . Such safeguards should also ensure that ORG would take into account the important concerns of nondisclosure of sources and confidentiality of editorial work as protected by the freedom of the press under LAW . The court ruled that , pending the entry into force of legislation in compliance with the LAW , section CARDINAL(CARDINAL ) was to be applied only if the data were specially marked and were not used for purposes other than those listed in section MONEY ) .

Monitoring measures were supervised by CARDINAL bodies , ORG and the so - called ORG ( see section CARDINAL of the G CARDINAL Act ) . At the relevant time , ORG consisted of CARDINAL members of parliament , including representatives of the opposition . The Federal Minister authorising monitoring measures had to inform the board DATE about the implementation of the G CARDINAL Act ( section CARDINAL(CARDINAL ) of the G CARDINAL Act ) .

The G CARDINAL Commission consisted of a president who was qualified to hold judicial office and CARDINAL additional members who were appointed by ORG for the duration of CARDINAL legislative term and who were independent in the exercise of their functions ( see section ORG ) of the G CARDINAL Act ) . The Federal Minister authorising surveillance measures had to inform the ORG DATE about planned monitoring measures and had to obtain its consent ( section CARDINAL(CARDINAL ) of the G CARDINAL Act ; see paragraphs CARDINAL below ) . Moreover , the Federal Minister had to inform the Commission whether or not persons concerned by such measures had been notified of them . If the Commission decided that notification was necessary , the Federal Minister had to arrange for it to be given without undue delay ( section CARDINAL(CARDINAL ) of MONEY ) .

Section CARDINAL(CARDINAL ) , points CARDINAL and CARDINAL , in conjunction with section CARDINAL ) , first and second sentence , authorised the monitoring of wireless telecommunications , that is , telecommunications which were not effected via fixed telephone lines , but , for example , via satellite connections ( PERSON nicht leitungsgebundener Fernmeldeverkehrsbeziehungen ) .

Section CARDINAL(CARDINAL ) , first sentence , provided that restrictions on the secrecy of telecommunications could be ordered by the competent Federal Minister with the approval of ORG , on an application by ORG , for international wireless telecommunications . Under the second sentence of that provision , such restrictions were permitted only in order to collect information about which knowledge was necessary for the timely identification and avoidance of certain dangers , namely :

( CARDINAL ) an armed attack on GPE ;

( CARDINAL ) the commission of international terrorist attacks in GPE ;

( CARDINAL ) international arms trafficking within the meaning of ORG and prohibited external trade in goods , data - processing programmes and technologies in cases of considerable importance ;

( CARDINAL ) the illegal importation of drugs in substantial quantities into the territory of GPE ;

( CARDINAL ) the counterfeiting of money ( GPE ) committed abroad ;

( CARDINAL ) the laundering of money in the context of the acts listed under points CARDINAL to CARDINAL .

Pursuant to section CARDINAL(CARDINAL ) , third sentence , restrictions on the secrecy of telecommunications could also be ordered for telecommunications via fixed telephone lines and for mail in order to identify and avert the dangers listed in section PERSON ) , second sentence , point CARDINAL .

ORG found that , pursuant to LAW , point CARDINAL , of LAW ( see paragraph CARDINAL above ) , the federal legislature had exclusive legislative power to regulate the matters listed in section CARDINAL(CARDINAL ) of the amended LAW , as they concerned foreign affairs .

NORP However , ORG took the view that allowing the monitoring of telecommunications in order to prevent the counterfeiting of money abroad , in accordance with point CARDINAL of section CARDINAL ) in its present wording , constituted a disproportionate interference with the secrecy of telecommunications as protected by LAW . It argued that this danger as such could not be considered to be as serious as an armed attack on ORG or any of the other dangers listed in section CARDINAL(CARDINAL ) . The counterfeiting of money should therefore be included in section CARDINAL(CARDINAL ) only if it was restricted to cases in which it threatened the monetary stability of GPE . The court ruled that , pending the entry into force of legislation in compliance with the LAW , section CARDINAL(CARDINAL ) , second sentence , point CARDINAL , was to be applied only if the counterfeiting of money abroad threatened monetary stability in GPE .

In practice , wireless telecommunications ( as opposed to telecommunications via fixed telephone lines ) comprised some CARDINAL per cent of the total volume of telecommunications at the relevant time . However , given technical progress , the volume of such telecommunications was expected to rise in the future .

Technically , telecommunications via satellite links ( with the satellites being positioned QUANTITY above the equator ) could be intercepted from sites in GPE if the signal reflected by the satellite ( the “ downlink ” ) covered the area in which the station was located . The area covered by the satellite beam depended on the satellite technology used . Whereas signals downlinked by older satellites often “ beamed ” across onethird of the LOC ’s surface , more modern satellites could concentrate their downlink on smaller areas . Signals could be intercepted everywhere within the area covered by the beam . International radio relay links ( PERSON ) could be intercepted from interception sites on NORP soil only if the radio relay transmission was effected within close proximity of these sites .

Pursuant to section CARDINAL(CARDINAL ) , ORG was only authorised to carry out monitoring measures with the aid of catchwords ( ORG ) which served , and were suitable for , the investigation of the dangers described in the monitoring order ( first sentence ) . The second sentence of that provision prohibited the catchwords from containing distinguishing features ( ORG ) allowing the interception of specific telecommunications . However , this rule did not apply to telephone connections situated abroad if it could be ruled out that connections concerning NORP nationals or NORP companies were deliberately being monitored ( third sentence ) . The catchwords had to be listed in the monitoring order ( fourth sentence ) . The execution of the monitoring process as such had to be recorded in TIME by technical means and was subject to supervision by ORG ( fifth sentence ) . The data contained in these minutes could be used only for the purposes of reviewing data protection and had to be deleted at DATE following their recording ( sixth and seventh sentences ) .

Section CARDINAL(CARDINAL ) , first sentence , provided that personal data ( personenbezogene ORG ) obtained through the interception of telecommunications could only serve the prevention , investigation and prosecution of offences listed in LAW and in certain other provisions , notably of LAW . These offences included , in particular , high treason against the peace or security of the ORG , crimes threatening the democratic order , the external security of the ORG or the security of the allied forces based in GPE , the formation of terrorist associations , murder , manslaughter , robbery , the forgery of payment cards or cheques , fraud relating to economic subsidies , infiltration of foreigners and the production , importation and trafficking of illegal drugs . Personal data thus obtained could be used only if the person concerned was either subject to individual monitoring under LAW or if there were factual indications ( tatsächliche PERSON ) for suspecting a person of planning , committing or having committed one of the offences mentioned above . This catalogue of offences for the investigation of which knowledge obtained by strategic monitoring could be used was considerably enlarged by the amendment of MONEY in issue .

Pursuant to section CARDINAL(CARDINAL ) , second sentence , the obligation on ORG to inform ORG of its findings obtained by strategic monitoring , including personal data , under section CARDINAL of ORG remained unaffected .

ORG found that section CARDINAL(CARDINAL ) , second sentence , in its present version , failed to comply with ORG CARDINAL and CARDINAL § CARDINAL , second sentence , of LAW . The provision did not contain sufficient safeguards to guarantee that the duty of ORG to report to ORG , which included the transmission of personal data , would be performed solely for the purposes which had justified the collection of the data ( GPE ) . Furthermore , the provision failed to comply with the identification requirements ( NORP ) flowing from LAW . Ensuring that personal data were not used for illegal purposes was possible only if it remained discernible that the data concerned had been obtained by means of an interference with the secrecy of telecommunications . Likewise , there were no safeguards ensuring that ORG did not keep or use the personal data transmitted to them for purposes other than those listed in section CARDINAL(CARDINAL ) . The court ruled that , pending the entry into force of legislation in compliance with the LAW , section CARDINAL(CARDINAL ) , second sentence , was to be applied only if the personal data contained in the report to ORG were marked and remained bound up with the purposes which had justified their collection .

Section CARDINAL(CARDINAL ) , first sentence , provided that the data obtained in the circumstances described in subsection CARDINAL of section CARDINAL had to be transmitted to the Offices for the Protection of the LAW and of the Länder , to ORG , to ORG ( GPE ) , to the public ORG offices and to certain police services for the purposes laid down in subsection CARDINAL of section CARDINAL in so far as this was necessary for the recipient authorities to carry out their duties .

Pursuant to section CARDINAL(CARDINAL ) , second sentence , the decision to transmit data was to be taken by a staff member who was qualified to hold judicial office .

ORG found that the federal legislature ’s exclusive legislative power under LAW , point CARDINAL , of LAW ( see paragraph CARDINAL above ) to regulate matters concerning foreign affairs also covered the transmission to other authorities of information obtained by ORG in the performance of its tasks as provided for in section CARDINAL(CARDINAL ) of the amended LAW . The federal legislature merely had to provide guarantees that the further use of the data did not disregard the primary function of the monitoring measures .

The Federal Constitutional Court further found that section CARDINAL(CARDINAL ) was not fully compatible with ORG CARDINAL and CARDINAL § CARDINAL , second sentence , of LAW . It held that LAW did not prohibit the transmission to the authorities listed in section CARDINAL(CARDINAL ) , first sentence , of information which was relevant for the prevention and investigation of criminal offences . This finding was not called into question by the fact that the initial collection of data by means of the random interception of telecommunications in order to prevent or investigate offences , without any prior suspicion of a specific offence being planned or having been committed , would breach LAW .

NORP However , in the opinion of ORG , the transmission of data under section CARDINAL(CARDINAL ) , first sentence , in its present version , disproportionately interfered with the right to secrecy of telecommunications and freedom of the press . The transmission of data constituted a further serious interference with the secrecy of telecommunications , because criminal investigations could be instituted against persons concerned by the interception of telecommunications which had been carried out without any prior suspicion of an offence . Consequently , such transmission was proportionate only if it served the protection of an important legal interest and if there was a sufficient factual basis for the suspicion that criminal offences were being planned or had been committed .

Section CARDINAL(CARDINAL ) , first sentence , read in conjunction with section CARDINAL(CARDINAL ) , did not fully comply with these requirements .

The catalogue of offences in respect of which the transmission of data was permitted also included less serious offences such as fraud relating to economic subsidies . Moreover , the impugned provision authorised the transmission of data in cases in which there were merely factual indications for the suspicion that one of the offences listed in that provision had been committed or was even only being planned . The transmission of data for the investigation of an offence which had already been committed was to be authorised only if the factual basis for the transmission was the same as that required by LAW . Article LAW provided , however , that interferences with the secrecy of telecommunications in order to investigate crimes required the presence of specific facts – as opposed to mere factual indications – warranting the suspicion that the person concerned had committed an offence listed in that provision . As regards the transmission of data for the prevention of crime , the combination of the following elements led to a disproportionate interference with the fundamental rights affected : the fact that mere factual indications were sufficient , that the mere planning of an offence could suffice , and that transmission could also be justified in the case of less serious offences .

The Federal Constitutional Court further found that section CARDINAL(CARDINAL ) , second sentence , was likewise not compatible with the right to secrecy of telecommunications . It considered it unnecessary to entrust the decision on transmission of data to an independent body . However , there was no requirement to record in TIME the transmission or the destruction or deletion of the data . This rendered effective supervision of the transmission of the data impossible .

ORG ruled that , pending the entry into force of legislation in compliance with the LAW , section CARDINAL(CARDINAL ) , first sentence , could be applied provided that data were only transmitted if specific facts aroused the suspicion that offences listed in section CARDINAL(CARDINAL ) had been committed . Furthermore , the transmission had to be recorded in TIME .

Section CARDINAL(CARDINAL ) and ( CARDINAL ) and section CARDINAL(CARDINAL ) regulated the procedure for destruction of the data obtained by strategic monitoring .

Section CARDINAL(CARDINAL ) provided that if the data obtained in the circumstances set out in section CARDINAL(CARDINAL ) were no longer necessary to achieve the purposes listed in that provision and if they did not have to be transmitted to other authorities pursuant to section CARDINAL(CARDINAL ) , they had to be destroyed and deleted from the files under the supervision of a staff member who was qualified to hold judicial office ( first sentence ) . The destruction and deletion had to be recorded in TIME ( second sentence ) . It was necessary to verify DATE whether the conditions for destruction or deletion were met ( third sentence ) .

Section CARDINAL(CARDINAL ) provided that the recipient authorities were likewise to verify whether they needed the data transmitted to them in order to achieve the aims laid down in section CARDINAL(CARDINAL ) ( first sentence ) . If this was not the case , they also had to destroy the data immediately ( second sentence ) . The destruction could be dispensed with if separation of the data from other information which was necessary for the fulfilment of the tasks set was impossible or could only be carried out through unjustifiable effort ; the use of such data was prohibited ( third sentence ) .

Section CARDINAL(CARDINAL ) , first sentence , provided that personal data obtained by means of monitoring measures pursuant to sections CARDINAL and CARDINAL about a person involved in the telecommunications monitored had to be destroyed if they were no longer necessary for the purposes listed in the LAW and could no longer be of significance for an examination by the courts of the legality of the measure . The destruction had to be carried out under the supervision of a person qualified to hold judicial office . Pursuant to section DATE ) , second sentence , the destruction had to be recorded in TIME . It was necessary to examine DATE whether personal data obtained could be destroyed ( third sentence ) . Access to data which were merely kept for the purpose of judicial review of the monitoring measure had to be blocked ( fourth sentence ) . They could only be used for that purpose ( fifth sentence ) .

ORG found that the provisions on the destruction of data laid down in section CARDINAL(CARDINAL ) and ( CARDINAL ) , second and third sentences , and section DATE ) complied with LAW . The provisions had , however , to be interpreted so as not to frustrate judicial review of monitoring measures . This meant that data could only be destroyed DATE after the person concerned had been notified that monitoring measures had been taken .

NORP However , ORG considered section CARDINAL(CARDINAL ) to be incompatible with LAW . It was necessary for the recipient authorities to mark the data as having been obtained by means of the interception of telecommunications . Otherwise , following verification that the information obtained was relevant for the tasks of the authorities concerned , personal data could be saved in a manner which made it impossible to identify them as resulting from the strategic monitoring of telecommunications . The restrictions on the permitted use of these data pursuant to section CARDINAL(CARDINAL ) would thereby be undermined . The court ruled that , pending the entry into force of legislation in compliance with LAW , section CARDINAL(CARDINAL ) could be applied provided that the data were marked as described .

Section CARDINAL(CARDINAL ) , first sentence , provided that ORG or the recipient authorities had to inform the persons monitored about the restriction imposed on the secrecy of telecommunications as soon as such notification could occur without jeopardising the achievement of the aim pursued by the restriction and the use of the data . Pursuant to section CARDINAL(CARDINAL ) , second sentence , no notification was given if the data obtained had been destroyed within DATE after their receipt by ORG or the recipient authorities .

ORG considered the restriction on the duty of notification as such , as laid down in section CARDINAL(CARDINAL ) , first sentence , to be compatible with LAW . By virtue of LAW , first and second sentences , taken in conjunction with LAW , third sentence , of LAW , no notification had to be given if this served to protect ORG or its democratic order or if disclosure of the information obtained or the methods used to this end threatened the fulfilment of the tasks of the authorities concerned .

NORP However , section CARDINAL(CARDINAL ) , second sentence , violated Articles CARDINAL and CARDINAL of LAW . There were no safeguards precluding the data from being used before their destruction within DATE . The mere destruction of the data within DATE did not , however , justify dispensing with the duty of notification irrespective of the prior use of the data .

The court ruled that , pending the entry into force of legislation in compliance with the LAW , section CARDINAL(CARDINAL ) could be applied provided that the data had not been used before their destruction .

Section CARDINAL(CARDINAL ) provided for supervision of the monitoring measures by an independent body , the so - called ORG .

Pursuant to section CARDINAL(CARDINAL ) , first sentence , the competent Federal Minister was to inform ORG on a DATE basis about the measures he had ordered to restrict the secrecy of telecommunications before such measures were implemented .

The Federal Minister could , however , order the execution of the measure before informing ORG if there was a risk that a delay might frustrate the purpose of the measure ( second sentence of section MONEY ) ) . The ORG gave a decision of its own motion or further to complaints contesting the legality and necessity of monitoring measures ( third sentence ) . Monitoring orders which the Commission deemed illegal or unnecessary had to be immediately revoked by the Minister ( fourth sentence ) .

ORG considered that section CARDINAL(CARDINAL ) , in its present wording , was incompatible with LAW . It failed to provide in a sufficiently clear manner that supervision by ORG covered the whole process of obtaining and using the data ( including measures taken under section CARDINAL(CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL) ) , and not only the monitoring orders by the competent Minister . The court ruled that , pending the entry into force of legislation in compliance with the LAW , the provision in question was only to be applied if the ORG ’s supervisory powers extended to measures taken under section CARDINAL(CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL) .

Section CARDINAL(CARDINAL ) excluded the possibility of judicial review in the case of monitoring measures ordered and executed to prevent an armed attack on the territory of GPE within the meaning of section MONEY ) , second sentence , point CARDINAL .

Pursuant to section CARDINAL(CARDINAL ) of the G CARDINAL Act , which remained unchanged in substance , the person concerned had to be notified of measures restricting the secrecy of telecommunications as soon as these measures were discontinued , provided that such notification did not jeopardise the purpose of the restriction ( first and second sentence ) . After notification , the person concerned could have recourse to the courts ; section CARDINAL(CARDINAL ) did not apply ( third sentence ) .

The Federal Constitutional Court found that section ORG ) constituted a justified restriction on the secrecy of telecommunications in accordance with LAW , second sentence , of LAW . Moreover , a person concerned by a monitoring measure could have recourse to the courts following notification of the restriction under section CARDINAL(CARDINAL ) , third sentence , of MONEY . The same applied if the person concerned had learned of the monitoring measure by another means , without having been notified .

A new version of LAW , which takes into account the principles laid down by ORG in its judgment of DATE , came into force on DATE .


Violation of Article 6 - Right to a fair trial

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

The applicant is a limited liability company , founded in DATE , with its seat in GPE .

On DATE its predecessor ( see paragraph CARDINAL above ) requested ORG to issue an order for payment against another company .

The court ordered the respondent to make a payment of MONEY ( MONEY ( ORG ) ) . Since the latter contested the order , on DATE the proceedings became litigation .

After having held QUANTITY hearings , ORG found for the plaintiff in DATE . On appeal , ORG quashed this decision in DATE and remitted the case to the first - instance court .

DATE and DATE the proceedings were stayed , pending the plaintiff ’s identifying the respondent ’s legal successor . After the latter had finally entered the proceedings , a procedural dispute evolved , at the end of which , apparently in DATE , ORG noted that , since the original respondent had ceased to exist on DATE , the proceedings had been interrupted on that date . Thus , all the actions of the parties and all the decisions delivered by the courts after that date were invalid .

Eventually , in DATE ORG ordered the resumption of the proceedings and transferred the case to ORG , which had acquired jurisdiction to hear the case due to an amendment to LAW .

On DATE ORG allowed the applicant company to replace the original plaintiff .

On DATE ORG found for the applicant company . None of the parties appealed and the decision became final on DATE .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in the town of GPE , GPE .

At the material time the applicant worked as an accountant at the ORG company .

In DATE the authorities revealed a shortfall of CARDINAL NORP hryvnyas ( ORG ) in the PERSON accounts . On DATE the local police instituted criminal proceedings against the applicant for embezzlement of ORG funds . On DATE criminal proceedings for forgery and negligence were also instituted .

On DATE criminal proceedings against PERSON were instituted in connection with the same episode of embezzlement . On DATE criminal proceedings against the applicant and PERSON were joined .

On DATE the applicant gave a written undertaking not to abscond .

The criminal proceedings against PERSON were terminated on DATE .

On DATE the applicant 's case was sent to the court .

On DATE ORG found the applicant guilty of embezzlement of ORG funds and sentenced her to DATE imprisonment . The court also ordered confiscation of any property belonging to the applicant .

On DATE the applicant was imprisoned .

On DATE ORG ( since DATE the ORG ) quashed this judgment and remitted the case for additional investigation .

On DATE the applicant was released .

In the course of the investigation several expert reports on handwriting , accountancy and technical criminal questions were submitted .

By DATE the additional investigation was completed and the case was transferred to the court .

On DATE ORG found the applicant guilty of embezzlement and sentenced her to DATE imprisonment . The court also disqualified the applicant from holding positions of financial responsibility for DATE and ordered confiscation of any property belonging to her .

On DATE the NORP ORG of Appeal reduced the applicant 's sentence to DATE and DATE imprisonment .

On DATE ORG of GPE lifted the DATE disqualification from holding positions of financial responsibility and upheld the remainder of the decisions of DATE and CARDINAL DATE .

Subsequently the applicant requested ORG of GPE to review the case under the extraordinary review procedure but to no avail .