Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in DATE and lives in GPE , “ the former GPE ” .

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

On an unspecified date the applicant , represented by a lawyer , filed a compensation claim against another private person ( “ the debtor ” ) .

On DATE ORG Služba za katastar i imovinsko - pravne poslove Bar ) issued a decision to register a mortgage ( založno pravo ) on the debtor ’s flat in favour of the applicant .

On DATE ORG ( PERSON ) in Bar ruled in favour of the applicant , ordering the debtor to pay MONEY , statutory interest and specified legal costs . This judgment became final on DATE .

On DATE ORG ( PERSON ) in GPE rejected the debtor ’s appeal as having been lodged out of time .

On DATE ORG issued an enforcement order ( rješenje o izvršenju ) ordering the sale of the debtor ’s flat by means of a public auction .

On DATE the same court established the value of the flat at issue .

NORP The public auction , scheduled for DATE , was cancelled on account of the judge ’s absence . No further auctions have been scheduled thereafter .

On DATE ORG Instance stayed the enforcement proceedings ( prekida se postupak izvršenja ) due to the debtor ’s death . On DATE this decision was posted on the applicant ’s door , after a prior written notice ( poslije pismenog obaviještenja rješenje pribijeno na vrata ) .

On DATE the applicant wrote to the President of ORG , urging that the decision at issue be enforced and asking that any relevant information in that regard be sent to him at his address in GPE , “ the former GPE ” .

On DATE the applicant was informed that the enforcement proceedings had been stayed on DATE .

On DATE the applicant wrote again to the President of ORG seeking that the enforcement proceedings be expedited .

On DATE the applicant proposed that the enforcement proceedings be continued in respect of the debtor ’s heirs .

On DATE ORG in Bar invited the applicant to provide the names and the addresses of the debtor ’s heirs within DATE , in default of which his request would be considered withdrawn . It was further specified that no appeal was allowed against this decision .

On DATE the applicant appealed . He submitted that he did not know the names and the addresses of the debtor ’s heirs , and that it was impossible for him to find this out , especially within DATE . He further maintained that the court should have acted pursuant to section DATE of LAW and should have found the debtor ’s heirs , or , alternatively , should have appointed a temporary representative for them without delay ( see paragraph CARDINAL below ) .

On DATE ORG requested ORG ( PERSON , područna jedinica ORG ) to provide a property certificate ( list nepokretnosti ) for the flat at issue .

On DATE ORG provided the requested certificate , which indicated that the new owners of the flat were ORG and ORG , the registered address of the former being in GPE .

On DATE ORG rendered a decision to continue the enforcement proceedings , designating ORG and ORG as the new debtors . On DATE this decision was served on ORG The delivery to ORG failed as he appeared not to live at the provided address in GPE .

On DATE ORG requested the relevant Police Directorate in GPE to inform it if ORG had residence there and , if so , at which address .

On DATE ORG informed ORG of GPE that ORG had a permanent residence in GPE , but that he actually lived in GPE . On DATE this information was forwarded to the court in Bar .

On DATE the court in Bar invited the applicant to pay CARDINAL ORG “ for publishing a notice ( oglas ) in the media , pursuant to CARDINAL paragraph CARDINAL of LAW ” ( see paragraph CARDINAL below ) , in default of which the enforcement would be terminated ( obustaviti ) .

On DATE the applicant ’s objection against the previous decision was rejected as inadmissible . It was specified that , pursuant to section CARDINAL of the Enforcement Act DATE , a notice on sale was to be published in the newspapers ( see paragraph CARDINAL below ) . At the same time , the applicant was informed that on DATE another interim measure prohibiting the sale of the flat at issue had been deleted from the register of ORG , thus creating the conditions for these enforcement proceedings to be concluded ( see paragraph CARDINAL below ) .

There is no information in the case file that the notice on sale was published in the newspapers or that ORG was served with the enforcement decision of DATE . The enforcement proceedings would appear to be still pending .

On DATE the debtor passed away .

On an unspecified date in DATE a private person X instituted civil proceedings against the debtor and another private person . On DATE the court in ORG issued an interim measure prohibiting the debtor from selling the flat at issue and ordered that this measure be registered by ORG until these proceedings were concluded . On DATE the proceedings ended . On DATE the interim measure was deleted , following a relevant order of the court in GPE to that effect .

On an unspecified date in DATE a private person Y filed a compensation claim against ORG and CARDINAL other private persons . On DATE these proceedings were registered in respect of the flat at issue by ORG ( zabilježba spora ) . On DATE these proceedings ended by a court settlement of the parties . On DATE the court in Bar ordered that the note on the proceedings be deleted from the register of ORG .

On DATE the court in GPE requested ORG to calculate the interest rate applicable to the amounts of ORG and ORG CARDINAL starting from DATE . On CARDINAL DATE ORG informed the court in GPE that the requested amounts were ORG CARDINAL,CARDINAL.CARDINAL and PERSON , respectively .

There is no information in the case file as to when the applicant ’s lawyer ceased to represent him save for the letter of CARDINAL DATE in which the applicant asked the courts that all the relevant information be sent to him ( see paragraph CARDINAL above ) .

Article CARDINAL of the LAW provides that the ORG shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by LAW , after all other effective legal remedies have been exhausted .

The LAW entered into force on DATE .

Section CARDINAL provides that a constitutional appeal may be lodged against an individual decision of a ORG body , an administrative body , a local self - government body or a legal person exercising public authority , for violations of human rights and freedoms guaranteed by the LAW , after all other effective domestic remedies have been exhausted .

Sections CARDINAL provide additional details as regards the processing of constitutional appeals . In particular , section CARDINAL provides that when ORG finds a violation of a human right or freedom , it shall quash the impugned decision , entirely or partially , and order that the case be re - examined by the same body which rendered the quashed decision .

The Act entered into force in DATE .

Section CARDINAL § CARDINAL provided that enforcement proceedings were urgent .

Section CARDINAL provided that LAW would apply accordingly to the enforcement proceedings unless provided otherwise by this or another federal LAW .

Section CARDINAL provided that in cases where the enforcement proceedings were stayed due to the death of CARDINAL of the parties the relevant court would inform thereof the heirs of that party , if their names and addresses were known , as well as the opposite party . If the names or addresses of the heirs were not known the court would , without a delay , appoint a temporary representative for them .

Sections CARDINAL - CARDINAL , inter alia , set out details as regards enforcement by means of a public auction .

LAW entered into force on DATE , thereby repealing LAW CARDINAL . In accordance with section CARDINAL , however , all enforcement proceedings instituted prior to DATE were to be concluded pursuant to LAW .

This Act entered into force on DATE and thereby repealed LAW . LAW , in particular , provides that all enforcements ( postupci izvršenja ) would be terminated in accordance with LAW .

Sections CARDINAL § CARDINAL and CARDINAL of this LAW correspond , in substance , to sections CARDINAL § CARDINAL and CARDINAL of LAW .

Section CARDINAL sets out details as regards the sale of the debtor ’s movable property .

Sections CARDINAL - CARDINAL set out details as regards the sale of real estate as well as regards enforcement by means of a public auction . In particular , section CARDINAL provides , inter alia , that a notice on sale of a real estate shall be published in the media .

Section CARDINAL provides that the proceedings shall be stayed ( postupak se prekida ) when CARDINAL of the parties passes away .

Section CARDINAL provides , inter alia , that proceedings which were stayed due to the death of CARDINAL of the parties shall be continued when the heirs or an administrator of the estate ( staralac zaostavštine ) take over the proceedings or when the court invites them to do so upon a proposal of the other party to that effect .

Section CARDINAL § CARDINAL provides , inter alia , that when a party has a representative ( punomoćnika ) , all court documents will be served on the representative .

Section CARDINAL provides , inter alia , that a decision against which a separate appeal may be filed shall be delivered in person to a party or his / her representative . If a person who is to be served does not happen to be at the place where the delivery is to be performed , the bailiff shall find out when and where that person can be found and shall leave a written notice with CARDINAL of the persons mentioned in section CARDINAL , requesting that he / she be present on a certain day and hour in his flat or office . If the bailiff does not find the person to be served even after this , he / she shall proceed in accordance with the provisions of section CARDINAL of this Act and the delivery shall thus be considered as having been carried out .

Section CARDINAL provides that if the person to whom a court document is to be delivered does not happen to be at home , the delivery shall be accomplished by serving the court documents on an adult member of his / her household , who must receive them . If such persons also happen not to be at home , the court documents shall be served on a neighbour , if he / she agrees .

Section PERSON provides that if the person to be served , an adult member of the household , an authorised person or an employee of a State body or a legal entity refuses to receive the court documents without legal reason , the bailiff shall leave the said documents in the flat or at the office of that person or post it on the door of the flat or the office in question . The bailiff shall make a note on the delivery slip concerning the day , hour and reason for refusal of reception , as well as the place where he or she left the court documents , and thus the delivery shall be considered accomplished .

Section CARDINAL § CARDINAL provides that when a party to the proceedings or his / her representative changes his / her address during the proceedings they shall immediately inform the court thereof .

This Act entered into force on DATE .

This Act provides , under certain circumstances , the possibility to have lengthy proceedings expedited by means of a request for review ( kontrolni zahtjev ) , as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress ( tužba za pravično zadovoljenje ) .

Section CARDINAL , in particular , provides that the president of the relevant court shall decide upon the request for review , which , pursuant to section CARDINAL , is to be submitted to the court before which the case is pending and must contain the name and the address of the party , the registration number of the case or other data on the basis of which it can be established to which case it refers , the data and circumstances indicating that the court is unjustifiably prolonging the proceedings , and the signature of the party .

Section CARDINAL provides that if the judge notifies the president of the court that certain procedural measures will be undertaken DATE after the receipt of the request for review , the president of the court shall notify the party thereof and thus finalise the procedure upon the request for review .

Section CARDINAL § CARDINAL provides that if the president of the court acted pursuant to section CARDINAL the party can not file another request for review in the same case before the expiry of the period specified in the notification .

Pursuant to section CARDINAL § CARDINAL if the president of the court does not deliver a notification on the request for review to the party pursuant to section CARDINAL the party may lodge an appeal .

Section CARDINAL provides that this Act shall apply also to judicial proceedings initiated before the entry into force of this LAW but after DATE . In the determination of a legal remedy for violations of the right to trial within a reasonable time , the violations of the right which occurred after DATE shall be established . When establishing the violation of this right , the ORG shall also take into consideration the length of the judicial proceedings prior to DATE .

This Act entered into force on DATE .

DATE , which is when the Right to a Trial within a Reasonable Time Act entered into force , and DATE , the courts in GPE considered more than CARDINAL requests for review . ORG in GPE submitted the data only for the period DATE and CARDINAL DATE , and ORG in PERSON for the period DATE . Also , ORG in GPE and ORG in Kolašin did not provide the exact number of the requests for review that had been dealt with by these QUANTITY courts . All the other courts dealt with CARDINAL requests for review in total .

DATE . In CARDINAL cases the courts issued notifications specifying the concrete actions that would be undertaken in each case within DATE with a view of expediting the proceedings ( see paragraph CARDINAL above ) . In CARDINAL cases of these QUANTITY the relevant actions were undertaken within the set time - limit ( a main hearing concluded , a decision or a judgment rendered etc . ) . In QUANTITY cases the relevant actions were undertaken within periods ranging DATE . In CARDINAL cases the relevant action specified in the notification would not appear to have been undertaken even after DATE .

In CARDINAL cases the requests for review were dismissed as unfounded . In CARDINAL cases of these QUANTITY the relevant domestic proceedings would appear to have been pending before the first - instance courts DATE , and DATE and DATE at most . In CARDINAL case the relevant civil proceedings in respect of which the request for review was dismissed as unfounded had already been pending for DATE and DATE before a first - instance court . In CARDINAL cases it is unclear how long the relevant domestic proceedings had lasted .

It is unclear how the additional CARDINAL requests for review had been dealt with . However , it would appear that in CARDINAL cases out of these CARDINAL the relevant domestic proceedings ended soon thereafter . The status of the remaining CARDINAL proceedings is not known .

Lastly , in CARDINAL cases the appellants were informed that the relevant decisions had been rendered in the meantime and in CARDINAL cases the requests for review were withdrawn .


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He is a licensed attorney and a member of ORG ( ORG komora ORG ) .

On DATE ORG sent the following letter to the President of the said bar association :

“ As you will know , ORG and its Registry are always looking to develop a relationship of trust with the community of legal professionals . Only through this mutual trust can the ORG function to ensure the highest standards of protection of human rights . It is for this reason that the President of the Second Section considers it appropriate ... to inform you about the practices of CARDINAL of your colleagues and a member of your distinguished association .

You will certainly be well informed about the volume of cases being lodged before ORG , which DATE amounts to CARDINAL . In CARDINAL of those cases , the applicants appeared to be represented by Mr PERSON , an attorney registered with ORG , but ... [ apparently ] ... having an office and most of his clients in PERSON . In the course of the examination of some of these cases , it transpired that on CARDINAL occasions Mr Petrović had submitted applications on behalf of deceased persons ( with the power of attorney signed on behalf of CARDINAL of those persons after his death ) . In a number of other cases , the ORG had doubts as to the authenticity of the powers of attorney supplied with the applications .

As it is necessary for the ORG to be able to rely on the veracity of the material submitted to it , the President of the Second Section , to which the cases at issue were assigned , decided , [ on DATE and ] in the best interests of the applicants , to ban Mr Petrović from representing applicants before the ORG [ , at present and in the future , ] ... [ T]he ORG informed Mr Petrović himself , as well as each of the applicants , about this development ... [ A ] letter ... [ to this effect ] ... was served upon Mr Petrović on DATE . Since he continued to act as the applicants’ attorney [ thereafter ] , the ORG reminded him of the ban . This second letter was served upon Mr Petrović on DATE .

Recently , Mr Petrović continued acting on behalf of the applicants , sometimes as their attorney and sometimes only by preparing [ their ] submissions for the ORG , but each time requesting reimbursement of his fees , even though he is well aware that the ORG will not take into consideration such requests .

... [ Aware ] ... of the importance of our [ common ] calling and the necessity of being led by the highest moral and professional standards [ , ] ... [ we ] ... address you on this delicate subject , being certain that you will know how best to approach this issue , and make sure that those standards continue to guide members of your association in [ their ] dealings with the ORG . ”

In his correspondence of DATE , received by ORG , the President of ORG responded as follows :

“ I am hereby informing you that , ... I have [ , ] with utmost seriousness [ , taken ] into consideration ... [ the contents of your letter , particularly given ] ... the fact that in the ... [ conduct of PERSON ] ... PERSON there are elements ... [ indicating a breach of the Attorneys’ ] ... [ P]rofessional [ E]thics ... [ Code ] ... I [ have also ] forwarded ... [ your ] ... letter to the Disciplinary bodies of ORG of GPE .

... [ Further , ] ... your ... letter will be considered at the meeting of ORG ... [ which shall ] ... be held at DATE .

You will be ... notified ... [ in a timely manner of ] ... the ... [ measures which ] ... will be taken by the Disciplinary bodies of ORG of GPE and ORG .

[ Since ] ... ORG [ , ] as well as the legal profession [ , ] both protect the same values , i.e. human rights , I share your opinion that attorneys - at - law [ , ] in their professional ORG , ] should fulfil the highest moral standards . ”

The ORG has received no further information from ORG .

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

On CARDINAL separate occasions , DATE , the police confiscated foreign currency from Mr A , who had been suspected of illegal currency trading .

In DATE PERSON A passed away , leaving behind a wife and CARDINAL children ( B and C ) .

In DATE PERSON employment with a public corporation was terminated .

DATE thereafter PERSON filed a civil claim , seeking salary arrears .

It is unclear as to whether these proceedings are still pending .

In DATE Mr E was involved in a traffic accident with a bus belonging to a “ socially - owned company ” ( see PERSON and ORG , ORG . CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL , § § DATE , DATE ) . In order to avoid a collision , he apparently swerved off the road and sustained injuries .

In DATE Mr F was injured in a traffic accident .

In DATE Mr G , driver of the socially - owned vehicle who had caused the accident , was convicted , fined , and ordered to pay litigation costs . Mr F was advised by the competent court to seek pecuniary and/or non - pecuniary damages in a separate civil suit . This judgment became final DATE thereafter .

There is no information in the case file as to whether the said civil suit was ever initiated .

In DATE , in a reinstatement and personal injury case , the competent court ruled partly in favour of Mr H.

DATE , this judgment was partially quashed on appeal and remitted to the competent court of first instance for re - examination .

It remains unclear as to what happened in this suit thereafter .

In DATE the competent court ruled in favour of Mr I , ordering his former employer to pay him the accrued salary arrears . On an unspecified date thereafter this judgment apparently became final .

In DATE the competent court ruled in favour of Mr J and PERSON , ordering an agricultural cooperative to pay them a certain amount of compensation on account of the land confiscated by the former communist authorities . This decision became final DATE thereafter .

It would appear that in DATE insolvency proceedings were instituted in respect of the agricultural cooperative in question .

In DATE Mr J passed away and was succeeded by his son and legal heir , PERSON

In DATE a civil case concerning , inter alia , the re - possession of a vehicle was filed against PERSON

Shortly thereafter the competent court ordered Ms M to return the truck at issue to the plaintiff for “ safekeeping ” , until the conclusion of the civil suit .

By DATE the proceedings were concluded , the final decision being partly in favour of PERSON The plaintiff ’s claim as regards the re - possession of the truck was rejected .

In the meantime , however , the plaintiff had apparently sold the truck to third persons .

In DATE Mr N filed an employment - related claim with the competent court , seeking salary arrears .

In DATE the court ruled partly in favour of ORG , and in DATE this judgment was confirmed on appeal .

In DATE ORG rejected PERSON appeal on points of law as inadmissible .

In DATE Mr O filed an employment - related personal injury claim .

Within DATE the competent court ruled in favour of Mr O , but this judgment was subsequently quashed on appeal .

In DATE the competent court of first instance once again ruled in favour of Mr O.

There is no information in the case file as to what happened in the proceedings thereafter .

ORG was employed with a socially - owned company DATE . It would appear that during this time her employer had , inter alia , failed to fully cover her social security contributions .

In addition to the present CARDINAL applications , the applicant has filed CARDINAL separate applications with ORG , GPE , GPE , GPE , GPE , as well as the Former GPE . Most of these applications have yet to be assigned to a decision body . Of the said CARDINAL applications , CARDINAL correspond in character to the applications at issue in the present case , whilst as regards the remainder the applicant appears as the legal representative of his clients , who have themselves been identified as applicants .


The applicant , PERSON , is a NORP national who was born in DATE and lives in ORG . She was represented before the ORG by PERSON , a trade union lawyer practising in GPE . The respondent Government were represented by PERSON , ORG .

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

The applicant is since DATE employed as an office cleaner at a nuclear plant in GPE . Assigned to clean the offices at the plant , she is not working in an area where she might be subjected to radioactivity and is thus not obliged to undergo any radiological examinations under the security rules for nuclear plants in GPE .

The applicant is a member of ORG ( ORG elektrikerförbundet ) which has CARDINAL members working at the nuclear plant . Her employer – OKG Aktiebolag ( hereinafter “ ORG ” ) , a privately owned limited liability company that owns the plant – is a member of ORG ( Energiföretagens Arbetsgivareförening ) . The central collective agreement in force between the CARDINAL organisations concerned ( PERSON ) does not provide for any drug or alcohol tests on the employees . In DATE , following discussions within a working group which included the ORG 's medical doctor and representatives of the company and the CARDINAL trade unions represented at the company , a drug policy programme was agreed upon which stipulated , inter alia , that job applicants should undergo a drug test in connection with the health examination before they could be employed . In DATE the working group proposed that those already employed should also undergo tests . ORG and CARDINAL of the CARDINAL trade unions then concluded local collective agreements which introduced at the plant a drug policy programme involving compulsory drug and alcohol tests for all the members of those unions . ORG wished to conclude a similar agreement with the applicant 's trade union but the union declared on DATE that it did not accept it . Nevertheless , in DATE ORG decided that also members of the applicant 's trade union should be subjected to drug and alcohol tests . As from DATE contractors ' employees who perform work for ORG are also tested . Further negotiations on this issue with the applicant 's union , held at local and central level , were fruitless and terminated at DATE .

The drug policy programme , which was replaced by a new , essentially identical , programme in DATE and which is contained in an instruction issued by ORG ( GPE syn på alkohol och narkotika ) , involves the taking of urine samples from the employees DATE . The tests aim to detect the use of both drugs and alcohol but the drug part of the tests concerns only the presence of cannabis . The employee is notified DATE in advance of the test , which consists of delivering a urine sample in private . The sample is taken care of by an occupational health nurse working under instructions from the hospital at GPE and the sample is sent to a laboratory at the hospital for analysis . The employee should state on a form , inter alia , what kind of medication , if any , he or she has taken during DATE . He or she further signs a referral , thereby consenting to the testing and giving permission to the laboratory to inform the occupational health service of the result . By signing a special form , the employee may also consent to his or her immediate supervisor being informed . If a test is positive , the employee will be requested to talk to the company doctor who shall provide information on possible rehabilitation measures , which may include detoxification and transfer to other duties , if the latter is motivated by reasons of security and safety . The last consequence of continued drug or alcohol abuse may be dismissal . According to the programme , a refusal to undergo the test is treated as a positive test result . However , if an employee refuses to participate in the testing for reasons of principle and there are no signs of drug abuse , the employee will not be dismissed . The ORG staff was informed of the programme , both orally and in writing , through an extensive information campaign .

In DATE ORG introduced proceedings against ORG and ORG before ORG ) seeking a declaratory judgment that the applicant was not obliged to participate in the drug and alcohol tests . The trade union claimed that ORG had no right to require that the applicant undergo such tests . The union argued that the tests were in breach of LAW , the collective agreement in force and LAW ( Sekretesslagen ; CARDINAL ) . Should the tests be considered not to be in breach of the collective agreement , the union argued , in the alternative , that the matter must be considered as unregulated . Furthermore , the union held that the individual employment contract between ORG and the applicant did not provide for such tests . Also , the union alleged that the tests were unjustified having regard to the applicant 's tasks at the nuclear plant .

By a judgment of CARDINAL DATE ORG found that the applicant was obliged to participate in the drug test but not in the alcohol test . ORG first noted that there was no legislation specifically regulating the right of employers to submit employees to drug tests against their will . It referred , however , to an earlier case before ORG ( DATE no . CARDINAL ) which concerned the question whether CARDINAL employees in a company that assembled scaffolding had been lawfully dismissed due to their refusal to submit to drug testing . In that case , the court had found that the employees had been obliged under the individual employment contracts to participate in the testing .

In the case at hand , ORG found that a general prohibition against drug testing could not be derived from the right to respect for family life under LAW . It stated , however , that in certain circumstances such testing might be incompatible with the LAW and therefore contravene NORP law . Circumstances of relevance were , for example , the employer 's interest in carrying out drug tests , the degree of interference with the individual 's integrity and the way in which the testing was performed .

The court further considered that the tests in question were naturally connected with the type of business conducted by ORG and , consequently , that the right to order employees to undergo such tests could be seen as part of the company 's right to manage and organise the work according to the central collective agreement , PERSON . Nevertheless , an employee not bound by a collective agreement on drug testing could not be obliged to submit to such testing without limitations .

In balancing the interests of the company and the individual , ORG first noted that ORG was running a nuclear power plant which entailed certain risks specific to this activity and which was subjected to far - reaching demands on security imposed by the relevant public authorities . ORG ( NORP kärnkraftsinspektion ) had expressed the necessity of conducting drug tests as a means of upholding a drug - free environment at such plants . Moreover , ORG noted that ORG was under an obligation , under LAW ( ORG , CARDINAL ) to take measures preventing illnesses and accidents at work .

ORG thus concluded that ORG had a strong interest to carry out the tests in question in order to maintain a drug - free work environment . It observed that drug testing was made at all the NORP nuclear power plants . Furthermore , according to the court , it would be impractical to make a distinction between employees working in areas where there were special security hazards and other employees . It was moreover possible that employees would be moved from a workplace with little risk to another one where there was a specific risk . In addition , having regard to the character of ORG 's business , there was an interest in showing to the outside world that the nuclear power plant was absolutely drug - free .

Turning to the interests of the individual , the court had regard to the procedures for the tests and considered that the possible infringement of the test procedures as such on the individual 's integrity was of very little significance . It further noted that the fact that there did not appear to be any drug abuse at ORG did not as such make the testing unnecessary ; on the contrary , in the court 's view , a drug policy programme would be considerably less credible if no tests were made and , moreover , the knowledge that tests were made had a preventive effect .

Having regard to the foregoing , ORG found that the applicant was obliged to submit to the drug test . It considered , however , that there was a fundamental difference between the use of drugs and the use of alcohol , in that the former was illegal whereas the latter was legal and socially accepted . As a positive test result would lead to an investigation into the individual 's use of alcohol – a highly sensitive matter in terms of personal integrity – and as , furthermore , there were some doubts as to the accuracy of the alcohol test , the court concluded that the applicant could not be obliged to take the alcohol test .

No appeal lay against the judgment of ORG .

It is a long - standing tradition in GPE that labour market issues such as wages and other working conditions are dealt with by the parties acting on that market with little interference from public authorities . In DATE ORG ) and ORG ( Svenska arbetsgivareföreningen ) concluded an agreement , the so - called DATE Compromise ( decemberkompromissen ) , whereby the trade unions accepted , inter alia , the employers ' right to manage and organise the work and the employers recognised the workers ' freedom of association . The agreement has been reflected in many collective agreements since .

In an early judgment ( DATE no . CARDINAL ) , ORG considered the employers ' right to manage and organise the work as forming a general legal principle . This principle has been confirmed in subsequent judgments by ORG ( see , inter alia , DATE no . DATE no . DATE ) . The right to manage and organise the work remains with the employer , unless otherwise stipulated in collective or individual agreements or in legislation . This right is , however , not unlimited . It must not be exercised in contravention of the law or “ good labour market practice ” ( “ god sed på arbetsmarknaden ” ) . ORG has interpreted the notion of “ good labour market practice ” in a large number of judgments ( see , inter alia , DATE no . CARDINAL ) .

It follows from the established case - law of ORG that an employer may have the right to carry out control measures in relation to the employees . Such a right may be based on collective agreements , individual employment contracts or on the employer 's right to manage and organise the work . Examples of control measures are work - time studies , physical searches ( DATE no . CARDINAL ) and drug and alcohol tests ( DATE no . DATE no . CARDINAL ) .

An employer may not exercise his right to apply control measures in an arbitrary , unreasonable or inappropriate manner . The employer must make sure that such measures are carried out in conformity with both legal provisions and “ good labour market practice ” . In assessing whether a control measure decided by the employer meets the standards of “ good practice ” , ORG has applied a principle of proportionality , balancing the employer 's interest in using the measure in question and the employee 's interest in protecting his or her integrity .

Rules on dismissal from employment are contained in LAW ( NORP om anställningsskydd , CARDINAL ) . A collective agreement or an employment contract is invalid to the extent that it excludes or limits employees ' rights under the LAW . Pursuant to section CARDINAL of the LAW , dismissal of an employee must be based on objective grounds ( saklig grund ) . Such grounds do not exist where it may reasonably be required that the employer provide other work for the employee . There is an extensive body of case - law from ORG dealing with the interpretation of the requirement of objective grounds . CARDINAL cases concern employees who were dismissed because of their refusal to participate in drug testing . In both cases , ORG found , in balancing the opposing interests involved , that the employer 's request that the employees undergo a drug test was justified . In CARDINAL of the cases ( DATE no . CARDINAL ) the court concluded , however , that the requirement of objective grounds for dismissal was not satisfied . In the other case ( DATE no . CARDINAL ) it reached the opposite conclusion . That case concerned a person , employed as a school help , who was suspected of having relapsed into drug abuse and was dismissed after repeatedly refusing to comply with the employer 's request that he submit to a drug test .

LAW ( NORP om kärnteknisk verksamhet , CARDINAL ) contains basic provisions on safety in connection with nuclear activities , such as the operation of nuclear power reactors . Nuclear activities require a licence and the licence holder has full responsibility for the safe operation of the facility . A licence may be revoked if safety conditions or safety regulations are not complied with .

ORG ( ORG kärnkraftsinspektion ) supervises all nuclear activities in GPE . It has laid down basic regulations on nuclear safety ( SKIFS CARDINAL:CARDINAL ) which entered into force after ORG judgment in the present case . In recommendations accompanying these regulations , it underlines that there should be a documented policy for dealing with different factors which could affect staff performance in a way that is relevant to safety and security , for example alcohol and drugs . Such a policy should include directions on , inter alia , the testing of personnel and the action to be taken when someone is found to be under the influence of alcohol or drugs or in the event of abuse .

Provisions on professional secrecy for medical staff working in the private sector were , at the material time , to be found in LAW in the Health and Medical Service ( Lagen om åligganden för personal inom hälso- och sjukvården , CARDINAL:CARDINAL ) . The obligation to observe secrecy does not usually apply if the individual concerned consents to information being disclosed . Thus , with the individual 's consent , information may be submitted to another individual , for example his or her employer .

A committee appointed by the Government in DATE to look into the issue of medical testing in the workplace submitted its report in DATE ( ORG CARDINAL:CARDINAL ) in which it found no grounds for proposing legislation concerning drug tests in the workplace . It considered that this issue should be solved by the parties on the labour market . It recommended that , where drug tests were to be applied , there should be a written drug policy , including an action programme , drawn up jointly by the employers and employees .


Lack of jurisdiction to examine complaint under Art. 3;Lack of jurisdiction to examine complaint under Art. 14;No violation of Art. 7 (first applicant);Violation of Art. 7 (second applicant);Violation of Art. 10;Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1 (independence and impartiality);Not necessary to examine Art. 6-1;Not necessary to examine Art. 6-2;Not necessary to examine Art. 14+10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

The applicants , Mr FAC and Mr PERSON , are NORP citizens . The first applicant was born in DATE and lives in GPE . He is a professor of economics and a journalist . The second applicant was born in DATE and lives in GPE . He is the owner of a publishing house , LOC .

In DATE ORG published a book written by the first applicant and entitled FAC , Çağdaşlaşma , Kalkınma – Paradigmanın İflası / PERSON ( “ Westernisation , Modernisation , Development – Collapse of a Paradigm / An Introduction to the Critique of the Official Ideology ” ) .

The book was an academic essay of CARDINAL pages , containing CARDINAL references , which involved a description of the socio - economic evolution of GPE since DATE and the analysis and criticism of the “ official ideology ” of the ORG . According to the titles listed in the table of contents , the author dealt with the following topics : Intelligentsia and Official Ideology ; ORG ; The Question of the National Character of the National Struggle ; The NORP and whether the National Struggle was Anti - Imperialist ; PERSON and the Individual ’s Role in History ; ORG : an Original Form of Bonapartism ; ORG ; ORG ; A NORP , ORG , ORG ; The Evolution of Socio - Economic Formation in ORG ; The DATE : Strengthening of the Satellitisation Process ; The Collapse of the Paradigm and the Science of Economics : Means to Legitimise Existing Tendencies .

The impugned chapter of the book included the following passages :

“ The NORP problem plays a significant role in the analysis of the evolution of PERSON [ ORG ( DATE ) ] and NORP social formation . The NORP problem and the process of the colonisation of GPE are indeed very important and , as such , should be the subject - matter of another book . Moreover , the problem is not only related to GPE . The formation of the domestic politics of GPE in the region ( GPE , GPE , GPE , GPE ) ( type of political regimes ) as well as the ‘ unique’ nature of relationships between these CARDINAL neighbouring GPE make it a complicated issue .

We have CARDINAL reasons why we wish to discuss the problem , even if in limited form , within the plan and scope of this book . These are to indicate the ‘ irrationality’ of official ideology and the real nature of PERSON . In other words , [ we wish ] to discuss whether what is presented as ‘ ORG Independence War ] is in reality an ‘ GPE Movement’ or not . Without any doubt , the imprisonment of GPE ( if the small area within the borders of GPE is omitted ) within the borders of CARDINAL different GPE gives the imperialists too easily ‘ control’ over these four States . Although the NORP problem is of great importance with regard to the protection of the imperialist status quo in the region , we shall not here go into an analysis of this aspect of the problem . [ page CARDINAL ]

On the other hand , the racist policy of denial which has been followed with regard to the NORP since the foundation of the Republic [ DATE ] has also been an important factor in the development of the fascist movement in GPE . As a contradiction , even though ‘ the assumption of non - existence’ of ORG constitutes an important element of the official ideology , this is at the same time the weakest point of the ideology in question . It is not possible ‘ to eliminate with the ORG a nation which exists and the objective reality continues to exist regardless of the nonsense and unfounded suspicions of the people . Of course , this does not mean that the nonsense , unfounded suspicions have no effect ! There is never a lack of those who profit from it , acquire bureaucratic , academic careers , receive high salaries , go up the step ladder of the political arena ... [ page CARDINAL ]

It was believed that colonialism would come to an end with the abolishment of direct political - military - police control in the GPE . DATE , however , the [ natural ] resources of ORG are carried to imperialist countries in volumes which are much higher than those of the colonial period . Therefore , the relationship between the NORP State and GPE is not of an imperialist devouring category . CARDINAL can speak of a situation which also directly embodies a political , military , cultural , ideological oppression . Thus , a direct colony status is in force . [ page CARDINAL ] ”

It appears that the publication of the book came to the notice of the prosecution authorities on CARDINAL DATE .

On DATE the public prosecutor at ORG ( GPE PERSON ) , having regard to the contents of the book in question , issued an indictment against the applicants . The first applicant , as the author of the book , was charged under section TIME ) of the Prevention of Terrorism Act DATE ( “ the DATE LAW ) with disseminating propaganda against the indivisibility of the ORG . The second applicant , as the owner of the publishing company , was charged under section CARDINAL(CARDINAL ) of the DATE Act . In the bill of indictment , the public prosecutor quoted extracts from the chapter of the book reproduced at paragraph CARDINAL above .

In the proceedings before ORG , the applicants denied the charges and sought their acquittal .

The first applicant submitted that his book had been an academic work that could not be viewed as propaganda . Being a professor he had had the duty to conduct research and publish his conclusions and could not be forced to accept the “ official version of reality ” . His book might be judged by academics , but not by the courts . It could not be permissible to try and convict someone for the expression of his or her opinion .

The second applicant submitted , inter alia , that it was not possible to make an assessment of the book as a whole solely on the basis of extracts from a single chapter . He alleged that section CARDINAL of the DATE Act was inconsistent with LAW and GPE ’s international obligations . There was a “ NORP problem ” in GPE and commenting or expressing ideas on this problem could not constitute an offence .

In a final statement dated DATE , the public prosecutor requested the conviction of the first applicant under section CARDINAL(CARDINAL ) of the DATE Act and that of the second applicant under section CARDINAL(CARDINAL ) , as well as the confiscation of all copies of the book . The public prosecutor considered that the offence had been committed on CARDINAL DATE .

On DATE the court acquitted the applicants . It held that the book as a whole was an academic work containing no elements of propaganda .

NORP The public prosecutor appealed . He submitted that the book alleged that a certain part of NORP territory had belonged to “ GPE ” which the NORP had annexed and colonised . Concluding that the book did indeed disseminate propaganda against the indivisibility of the ORG , he requested that the verdict be set aside .

On DATE ORG quashed the decision of the trial court and referred the case back for retrial . It gave the following reasons :

“ In the writings on pages CARDINAL of the book … it is stated that a part of the territory within the borders of GPE is a part of GPE which belongs to the NORP nation , and that this territory has been annexed by the NORP and is subject to colony status . ORG , without considering that [ the above ] statement , as such , exceeds the limits of criticism and constitutes dissemination of propaganda against the indivisible integrity of ORG with its territory and nation , found [ both ] accused ‘ not guilty’ .

The judgment … is contrary to the law and thus , the public prosecutor ’s grounds of appeal are upheld . Accordingly , it is unanimously decided that the judgment be reversed … ”

In a judgment dated DATE , ORG found the applicants guilty of the offences with which they had been charged . It sentenced the first applicant to CARDINAL years’ imprisonment and a fine of MONEY ( TRL ) and the second applicant to CARDINAL months’ imprisonment and a fine of FAC . Considering the applicants’ good conduct during the trial , the court reduced the first applicant ’s sentence to DATE and CARDINAL months’ imprisonment and a fine of GPE CARDINAL,CARDINAL,CARDINAL and the second applicant ’s sentence to CARDINAL months’ imprisonment and a fine of GPE CARDINAL . On the other hand , the court dismissed the public prosecutor ’s request for an order of confiscation of the book .

In its reasoning supporting the convictions , the court stated :

“ After the examination of the book which is the subject of the offence , it is understood that the [ following ] statements

on page CARDINAL that ‘ The NORP problem plays a significant role in the analysis of the evolution of PERSON [ ORG ( DATE ) ] and NORP social formation . The NORP problem and the process of the colonisation of GPE are indeed very important and , as such , should be the subject - matter of another book . Moreover , the problem is not only related to GPE . The formation of the domestic politics of GPE in the region ( GPE , GPE , GPE , GPE ) ... ’ , ‘ to discuss whether what is presented as “ PERSON ” [ Independence War ] is in reality an “ ORG ” or not . Without any doubt , the imprisonment of GPE ( if the small area within the borders of GPE is omitted ) within the borders of CARDINAL different GPE gives the imperialists too easily “ control ” over these CARDINAL States ... ’ ,

on page CARDINAL that ‘ the racist policy of denial which has been followed with regard to the NORP since the foundation of the Republic [ DATE ] has also been an important factor in the development of the fascist movement in GPE ... It is not possible “ to eliminate with the mind ” a nation which exists ... ’

and on page CARDINAL that ‘ the relationship between the NORP State and GPE is not of an imperialist devouring category . CARDINAL can speak of a situation which also directly embodies a political , military , cultural , ideological oppression . Thus , a direct colony status is in force.’

identify a certain part of GPE as GPE , declare that GPE rules this region with colony status and thus aim to disseminate propaganda against the indivisible integrity of ORG with its territory and nation . Therefore , the following sentence shall be drafted under the provisions of PERSON no . ORG which is applicable to the proven acts of the accused . ”

The applicants appealed to ORG , which held a hearing in the case . The applicants , while reiterating the defence made before ORG , emphasised that the latter had failed to consider the book as a whole and had erroneously based its decision on an assessment of CARDINAL chapter . The first applicant maintained that section CARDINAL of the DATE Act was inconsistent with LAW and the Convention , and he could not therefore be tried and convicted under that provision . He also referred to his previous arguments concerning the lack of clarity of the relevant provisions of LAW . The second applicant asserted that his sentence to imprisonment had been unlawful in that section CARDINAL(CARDINAL ) only authorised the imposition of a fine .

NORP In its decision of DATE , delivered on DATE , ORG upheld ORG findings and dismissed the appeals .

As of DATE the first applicant was dismissed , under section CARDINAL ) of LAW ( Law no . CARDINAL ) , from his post as lecturer at ORG . The relevant decision referred to his conviction under LAW and to his being sentenced to QUANTITY .

On DATE ORG granted a request by the prosecution for an order of seizure in respect of the sixth edition of the impugned book .

The applicants served their sentences in prison and paid the fines . After the amendments made by PERSON no . CARDINAL of DATE to the DATE Act , ORG re - examined the second applicant ’s case . On DATE the court held that these amendments could not be applied to his case as he had already served his sentence .

The relevant provisions of LAW read as follows :

“ Where the legislative provisions in force at the time when a crime is committed are different from those of a later law , the provisions most favourable to the offender shall be applied . ”

“ In the event of conviction , the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence … ”

The relevant provisions of the Press Act DATE read as follows :

“ For the purposes of the present PERSON , the term ‘ periodicals’ shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .

‘ Publication’ shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . ”

The relevant provisions of LAW DATE read as follows :

( before amendment by PERSON no . CARDINAL of DATE )

“ [ ( CARDINAL ) ] Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY .

[ ( CARDINAL ) ] Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [ ] . However the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment . ”

( as amended by PERSON no . CARDINAL of DATE )

“ [ ( CARDINAL ) ] Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years’ imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .

[ ( CARDINAL ) ] Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment .

[ ( CARDINAL ) ] Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months’ and not more than two years’ imprisonment and a fine of from CARDINAL MONEY …

The Government have submitted case - law concerning the application of section CARDINAL , details of which may be found in ORG v. GPE [ ORG ] , no . GPE , § CARDINAL , ECHR DATE .

“ The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve . ”

However , the provisions of this section shall not apply to convictions pursuant to section CARDINAL . ”

A summary of the relevant domestic law governing the organisation and procedure of ORG is contained in PERSON cited above , § § DATE .


The applicants , Mr PERSON and PERSON , are NORP citizens , who were born in DATE and DATE espectively and live in LOC . They are represented before the ORG by PERSON , a lawyer practising in PERSON . The respondent Government are represented by their Agents , PERSON PERSON and subsequently by PERSON .

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

On DATE the applicants ' house in GPE , GPE was blown up by unknown perpetrators .

On DATE ORG introduced an amendment to LAW ( “ the LAW ” ) which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation . The new legislation was to be enacted within DATE .

On DATE the applicants instituted civil proceedings in ORG ( PERSON ) seeking damages for their destroyed property from the ORG .

At a hearing held on DATE ORG decided to stay the proceedings pursuant to the above legislation . It appears that the court nevertheless continued the proceedings .

On DATE ORG gave judgment dismissing the applicants ' claim as time barred .

Following an appeal , on DATE ORG ( Županijski sud u Karlovcu ) upheld the first instance judgment . The applicants filed a request for revision on points of law and the proceedings still appear to be pending before ORG ( PERSON ) .

Meanwhile , on DATE ORG introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( “ the DATE LAW ” ) .

The relevant part of LAW ( Zakon o obveznim odnosima – Official Gazette , nos . CARDINAL , CARDINAL , DATE , DATE and CARDINAL ) provided as follows :

“ Liability for loss caused by death or bodily injury or by damage or destruction of another 's property , when it results from acts of violence or terror or from public demonstrations or manifestations , lies with the ... authority whose officers were under a duty , according to the laws in force , to prevent such loss . ”

The relevant part of LAW ( Zakon o izmjeni PERSON o obveznim odnosima – Official Gazette no . CARDINAL ; “ the DATE LAW ) reads as follows :

“ Section CARDINAL of LAW ( the Official Gazette nos . CARDINAL , CARDINAL and DATE ) shall be repealed . ”

“ Proceedings for damages instituted under LAW shall be stayed .

The proceedings referred to in sub - section CARDINAL of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts . ”

The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL ; “ the LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant 's rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment . ”

LAW , ORG no . CARDINAL ) reads as follows :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija – Official Gazette no . CARDINAL/CARDINAL ; “ the DATE LAW ” ) provides that all compensation for damage to property resulting from terrorist acts is to be sought under LAW . LAW provides that all proceedings stayed pursuant to LAW are to be resumed .

LAW ( Zakon o obnovi – Official Gazette nos . CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provides that the ORG shall grant reconstruction assistance to the owners of property damaged during the war . Any requests in this respect are to be filed with the competent administrative authority .

In its decision no . PERSON CARDINAL/CARDINAL - CARDINAL ORG ruled that proceedings concerning damages for terrorist acts , instituted after LAW entered into force , are not to be stayed .


The applicants are NORP citizens , born in DATE and DATE respectively and living in GPE , GPE .

s , may be summarised as follows .

In DATE , on the basis of a licence issued by ORG , the applicants founded a company specialising in the protection of property .

On DATE ORG convicted the applicants of CARDINAL count of misappropriation and sentenced them to DATE imprisonment and a fine of QUANTITY ( old ) NORP zlotys , with DATE of imprisonment in default , and conditionally stayed enforcement of this sentence for DATE . The court further discontinued criminal proceedings concerning a charge of attempted misappropriation . Finally , the court imposed on the applicants an order prohibiting them from running , for DATE , the property protection business .

The court found that the applicants had first assisted the PERSON brothers in assigning to a certain GPE the ORG claim against ORG , which allegedly arose out of a civil law contract but CARDINAL which had not been certified by any judicial decision . Subsequently , they had obtained from ORG an authorisation to secure realisation of this claim against GPE On DATE they went to a warehouse located in S. , owned by ORG , and stated that they wished to purchase a substantial amount of merchandise . After they had chosen the merchandise , the seller asked them what form of payment they propose . When she was informed that they did not propose to pay because their intention was to set off the claim which ORG had acquired against GPE against the price due for the merchandise , the seller called the police . After the police arrived and told the applicants that they should have recourse to civil proceedings , they left the warehouse . They subsequently went to CARDINAL other shops owned by GPE , located in GPE , where they declared their intention to buy certain merchandise and , after it had been loaded on their van , they again refused to pay for it , stating that the payment due would be set off against the claim ORG had against GPE

The court noted that there had been no dispute as to the facts . The accused had not called in question the facts as established on the basis of testimony given by the witnesses , but they had disagreed with the legal assessment of the facts by the prosecuting authorities . They had stressed that their actions fell within the scope of a civil law contract of assignment of claims and the setting off of claims . The court considered that the accused had failed to take note of LAW which provided for a legal act to be null and void if effected in order to circumvent the law , or if it was contrary to the law , or contrary to good faith . The court considered that , although the applicants were conversant with civil law , their actions could not be construed as the mutual setting off of contractual claims . Their intention had been to conclude a contract of purchase and to refuse payment , invoking the assignment of claims to J.C .. The court considered that their acts amounted to an offence of misappropriation punishable under LAW .

The court further held that the applicants had abandoned , of their own will , their intention to proceed with the purchase of merchandise in LOC and thus considered that the part of the criminal proceeding relating to this incident should be discontinued .

The applicants appealed . They alleged that their defence rights had been breached in that the legal qualification of the charges against them had been changed after the court had closed the trial . They complained that after the trial had been closed , PERSON had not been given a possibility to address the court , that the court had made it impossible for them to lodge an appeal and that the proceedings had lasted too long . They also complained that GPE , the wife of GPE , had been questioned only on DATE of the trial and that the court had wrongly applied substantive law by considering that their acts could have amounted to offences punishable under criminal law , whereas they had only resorted to a well - established civil law contract of assignment of claims which could be effected regardless of the creditor ’s lack of knowledge and of his approval thereof .

The Prosecutor likewise lodged an appeal , claiming that ORG had wrongly applied substantive criminal law in that it had assessed the applicant ’s offence as misappropriation , whereas it should have been qualified as fraud . He further argued that the part of the proceedings relating to the ORG acts committed in LOC should not have been discontinued because , in fact , the applicants had not abandoned their intention of their own will , but only after the seller had called the police .

On DATE ORG quashed the judgment under appeal and ordered that the case be reconsidered by the lower court .

The court first examined the complaints submitted by the applicants to the effect that the procedural law had been breached in the proceedings . The court considered that the lower court had in fact informed the applicants about the possibility of reassessing the offences with which they had been charged before the trial had been closed . The court further found that after the trial had been closed , the accused , including ORG , had had an opportunity to address the court orally . The court considered the complaint about the impossibility of appeal to be incomprehensible because they had in fact lodged an appeal . The fact that ORG had been questioned on DATE of the trial did not amount to an irregularity , as the lower court had been under no obligation to question witnesses in any given order . As to the legal argument on mutual setting off allowed under civil law , the court noted that the only document purporting to be evidence of the existence of the claims of the PERSON brothers against GPE merely showed that the latter had had certain obligations towards the A. company , of which the brothers had been shareholders , whereas the assignment of claims had purportedly been concluded between the PERSON brothers and GPE The court concluded that there had been no credible evidence to prove the existence of ORG original contractual obligation towards the PERSON brothers .

The court observed that the applicants had requested ORG to allow their company to secure the payment of claims arising out of various contractual obligations for a commission of MONEY . Subsequently J.C. had signed a blank claim assignment form which was subsequently to be used by the applicants’ company . The court considered that such an assignment , in the absence of any details establishing the claims on which the applicants could seek payment , could not be regarded as valid under the applicable provisions of civil law .

The court noted that the civil law allowing for the setting off of claims is only applicable when the persons concerned were mutual debtors and creditors in relation to each other .

The court considered that the legal assessment of the offences at issue by the first instance court had been wrong in that they had been qualified as misappropriation . However , this offence requires that the perpetrator had the objects concerned in his or her possession and then refused to return them to their rightful owner . As this had not been the case , the legal assessment of the offences had to be amended . Accordingly the court quashed the judgment of the lower court .

On DATE the ORG convicted the applicants of CARDINAL charges qualified as a continuous offence of fraud , sentenced them to CARDINAL months’ imprisonment and a fine with imprisonment in default , and conditionally stayed enforcement of the sentence for DATE .

The court reiterated that , as the applicants had not called into question the facts of the case , the essence of the matter lay in the legal assessment of their acts . The court considered that during the material events the applicants had pretended that they wanted to purchase merchandise and that by doing so they had misled the sellers . However , their genuine intention was , first , to enter into possession of the merchandise and , after this had been attained , to refuse payment and to declare that they intended to set off the price due against the claims against ORG which had purportedly been assigned to ORG The court considered that in the light of the evidence given by the sellers , they would not have concluded such a contract with the applicants had they been informed of their real intentions . Thus the court considered that the setting off of the claims had been null and void and that the applicants’ acts met the statutory requirements of the offence of fraud , as set out in LAW applicable at the material time .

The applicants lodged an appeal , complaining that the judgment was in breach of substantive law , in that the court had accepted that their acts amounted to a criminal offence punishable under LAW , whereas in fact they had acted in conformity with the law . The applicants did not reiterate the complaint they had raised in their appeal against the judgment of DATE that the legal qualification of the charges against them had been changed after the first - instance court had closed the trial .

On DATE ORG amended the first instance judgment of DATE , reducing the sentence to a fine of CARDINAL new ORG , with CARDINAL days’ imprisonment in default , whilst upholding the remainder .

The court first noted that the applicants did not call into question the findings of fact made by the lower court . The court noted that ORG had never been asked by the A. company to pay his alleged debt . Thus , the claim could not be considered as due . The court considered that , for contractual claims to be validly set off against each other , the law required that the claims should not only be undisputed but also due , which conditions did not obtain in the present case . Moreover , the applicants , when purchasing merchandise owned by GPE , had acted with a fraudulent intent , because their real intention was to take possession of the merchandise and then to refuse payment . Thus , the ORG argument that they had validly concluded a purchase contract with ORG and subsequently set off ORG assigned claim could not be accepted . Given the invalid purchase contract , there were no legal grounds on which the claims could be lawfully set off against each other .


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He had been granted legal aid and was represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) did not designate an Agent for the LAW proceedings .

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

In DATE the applicant bought a plot of arable land from a fellow villager . The seller had held the land in his possession for DATE without a title deed . The transaction took place unofficially and the parties did not execute a written sale agreement .

In DATE the authorities conducted regional cadastral works in the area . As a result , the plot in question was registered in the land register as CARDINAL separate parcels , numbered CARDINAL and CARDINAL . Parcel no . CARDINAL was registered in the name of the applicant as an arable field based on witness statements confirming that he had had taken it over from its previous possessor and had been exploiting it without interruption ever since . Parcel no . CARDINAL however was classified as part of an adjacent forest . As the legislation permitted no private ownership of forest land , this parcel was registered in the name of the ORG as a ORG property .

According to the applicant , he was uninformed about this registration and continued to cultivate not only parcel no . CARDINAL but no . CARDINAL . He only became aware of the situation in DATE , when the authorities discovered the cultivation and fined him for illegal utilisation of ORG property .

On DATE the applicant initiated civil proceedings before ORG , requesting parcel no . CARDINAL to be registered in his name . A court - appointed expert conducted an inspection and concluded that parcel no . CARDINAL could not be characterised as forest land .

Agreeing with the expert , ORG ruled in favour of the applicant on DATE . The court also established that the applicant had been holding the parcel in his uncontested and uninterrupted possession for long enough to entitle him to claim title under the applicable legislation . Accordingly , the court recognised him as the lawful owner of the parcel .

On DATE , however , ORG quashed this judgment . It established that older land inventories proved that the disputed parcel was on the outer limits of a neighbouring forest . The court reasoned that DATE of intensive cultivation must have removed the natural flora . Despite such a transformation , the court considered that the land should be considered as despoiled forest which had never belonged to the applicant . Accordingly , it directed the civil court to re - examine the facts of the case and pass judgment accordingly .

On DATE ORG adhered to this ruling . It held that the revision of the local plan served the general interest given that parcel no . CARDINAL was a forest area and that the applicant had illegally occupied it by expanding the boundaries of his lawfully possessed land , i.e. plot no . CARDINAL .

On DATE ORG dismissed the applicant ’s appeal .

On DATE the ORG sold the plot of land in question to a third party as an arable field .

Article CARDINAL of ORG provides that , persons who hold in their possession an unregistered immovable property without interruption or legal challenge for a minimum period of DATE , are entitled to request its registration in their names .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . The applicant is a journalist writing for the Citizen ( « Гражданин DATE ) newspaper published by the GPE town administration . The applicant is represented before the Court by PERSON PERSON . PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr P. GPE , Representative of GPE at ORG .

On DATE the applicant published an article under the headline “ ORG Tkach ” ( « Нехорошая квартира прокурора Ткача » ) in the Citizen . The article concerned a civil dispute between PERSON , the spouse of the prosecutor of the LOC district of FAC Tkach , and Mr and PERSON . , her neighbours who lived in the attic , right above PERSON flat . In DATE PERSON and Mr T. , another neighbour , had sued Mr and PERSON . for an injunction to stop unauthorised construction works in the attic . The first - instance court had dismissed the suit . However , the applicant continued , the appeal court quashed the judgment in the part concerning the claims of PERSON , but not the claims of Mr T. , notwithstanding the fact that their claims had been identical . The applicant alleged that this was only possible after Mr M. , a colleague of Mr Tkach and prosecutor of the LOC , intervened in the proceedings . In the article the applicant critically described the new hearing on PERSON claims on DATE and strongly disagreed with the court judgment made in favour of PERSON . The article implied that the parties to the dispute were not equal before the law precisely because the plaintiff ’s husband was a prosecutor .

On DATE the prosecutor PERSON filed an action against the applicant and the Citizen for the protection of his honour , dignity and professional reputation and compensation for non - pecuniary damage . The statement of claim was printed on the letterhead of the prosecutor ’s office of the LOC district of GPE and signed “ the prosecutor of the LOC district , senior justice advisor , FAC ” . It also bore the outgoing registration number of the prosecutor ’s office .

Mr PERSON argued as follows :

“ CARDINAL . The said article puts a special emphasis on my actions , allegedly unworthy of a prosecutor ; however , my professional activities and my position are in no way related to the essence of the judicial dispute in question : I was not a plaintiff in the dispute , [ neither ] as an individual nor as a prosecutor .

... No journalist should be allowed to make [ the living conditions ] of a prosecutor the subject of a public discussion . No one has the right to invade my private life , I did not break the law living in my flat DATE neither as a prosecutor nor as an individual . ”

Mr Tkach also submitted :

“ In accordance with LAW in the GPE verification of information on a violation allegedly committed by a prosecutor shall be the exclusive competence of ORG offices . This law applies to all citizens without exception , including journalists , who have no right to collect information on private lives of prosecutors and investigators and even more so to publish it in the media without consent of a prosecutor ’s hierarchical superior . ”

Mr PERSON explained that the action against the neighbours had been lodged by his wife who was also the owner of the flat . He denied that he or his wife had ever wanted to improve their living conditions at the expense of their neighbours . On this ground he requested the court to declare that the following extracts from the applicant ’s article had damaged his honour and his professional reputation of a prosecutor :

“ ‘ Every prosecutor has an evil flat of his own’ . These words are not mine . This is what people say . You can think anything you want . But in our case the issue is that PERSON and PERSON are dissatisfied with their housing conditions . They want an improvement . At the expense of their neighbours , Mr and PERSON . ”

“ Make way ! The ORG couple comes . ”

“ In order to satisfy [ the claim of ] Mr and PERSON and grant them [ the right to use a part of the attic ] ... the administration of the ORG district will apparently have to :

- build a new entrance into the flat of PERSON and PERSON . , which had already existed when they moved in ;

- brick in the CARDINAL doors leading into their rooms and cover the resulting wall with stucco and wallpaper ;

- convert CARDINAL separate rooms into CARDINAL with the CARDINAL entrance - exit through the kitchen . ”

“ P.S. The prosecutor PERSON has a wonderful CARDINAL - room flat , its total surface measures QUANTITY and the ceilings are QUANTITY high . ”

[ “ « У каждого прокурора есть своя нехорошая квартира ORG . Это не мои слова. Это – уже FAC можно думать всё , что DATE Но в нашем случае речь идет о том , что PERSON недовольны своими квартирными ORG хотят их улучшить. За счет соседей Ш.

Дорогу ! PERSON прокуроров идет !

ORG удовлетворить PERSON , отдав им пазуху ... администрации GPE района , видимо , придется :

- перепланировать новый вход в квартиру Ш. , который уже был , когда они вселялись ;

- заложить кирпичами две двери в их комнаты , образовавшуюся стену зашпаклевать , поклеить обои ;

- две их раздельные комнаты превратить в смежные , с единственным входом-выходом – в кухню.

ORG прокурора Ткача прекрасная трехкомнатная квартира , общей площадью почти CARDINAL кв. м , с трехметровыми потолками. ” ]

The court accepted the defamation action and ordered a linguistic expert examination of the article at issue .

On DATE the acting prosecutor of GPE ( и.о. прокурора PERSON области ) issued to PERSON Tkach the following power of attorney printed on the prosecutor ’s office letterhead and sealed with the prosecutor ’s office stamp :

“ [ Hereby ] the prosecutor ’s office of LOC represented by the acting prosecutor [ Mr ] Vyacheslav Fedorovich GPE authorises the prosecutor of the LOC district , [ Mr ] PERSON < ... > to take part in civil proceedings before all judicial authorities , including [ the action ] for the protection of the honour and dignity of the prosecutor of the LOC district before ORG of FAC , having all rights granted by law to a plaintiff , defendant or third parties , [ including the right ] to withdraw the action in whole or in part , accept the claim , alter the subject of an action , conclude a friendly settlement , delegate the powers to an attorney ( substitution ) , appeal against a court decision , obtain writs of execution , recover the awarded property or moneys , and sign all necessary documents on my behalf . ”

On DATE Mr Tkach submitted a new version of his action . It was drafted on the letterhead of the prosecutor ’s office of the Moskovskiy district of GPE and the plaintiff was designated as “ the prosecutor of the LOC district , senior justice advisor , Mr FAC . The statement of claim bore an outgoing registration number of the prosecutor ’s office . In the new version of the statement Mr Tkach referred to the results of an internal inquiry carried out by the prosecutor ’s office of LOC on DATE in connection with the applicant ’s article . According to Mr Tkach , the inquiry did not establish any violations or unethical behaviour on the part of Mr Tkach and found that the facts described in the articles were untrue . Mr Tkach submitted that the applicant had failed in her professional duty to publish only accurate information and abused her rights as a journalist because she had allegedly defamed him exclusively on the ground of his occupation , place of residence and professional position . Mr Tkach asked for compensation for non - pecuniary damage to be transferred to the bank account of the prosecutor ’s office of LOC . As to the remainder , Mr Tkach repeated his initial claims , but he also added that the title of the article in question be declared untrue and damaging to his reputation .

On DATE the applicant published a new article under the title “ Prosecutor Tkach and freedom of expression DATE ( the story continues ) ” ( « Прокурор Ткач и свобода слова DATE ( эпопея продолжается ) ORG ) . The article related once again the story about the civil action brought by PERSON against her neighbours and alleged that only Mr PERSON ’s intervention in his professional capacity had secured an award in favour of his spouse . The article also criticised PERSON PERSON ’s decision to issue an official power of attorney to Mr Tkach for the protection of the latter ’s personal interests .

On DATE Mr Tkach filed a new action against the applicant and her newspaper . The statement of claim was drafted on plain paper and contained no reference to Mr PERSON ’s position or professional affiliation . Mr Tkach claimed that the following extracts in the article of DATE had damaged his honour and reputation :

“ ... the purpose of the claim [ was ] to prevent a reconstruction of the attic . Undertaken on legal grounds in accordance with a resolution of the head of the ORG district . The first attempt missed the target : the court did not grant the action . But when a subsequent action was filed and her husband DATE the prosecutor of LOC DATE began to show up at the hearings , the judgment was made in [ Mrs Tkach ’s ] favour ...

But here is the issue : had he been a pensioner , just like his neighbour , the action would have never been granted . ”

[ “ PERSON заявления – запретить реконструкцию чердака. GPE начатую согласно постановлению главы NORP района. С первой попытки цель не была достигнута DATE суд не удовлетворил просьбу. Но когда был подан следующий иск и на заседаниях стал появляться ее муж – прокурор GPE района Ткач – решение вынесли в ее пользу ...

Но ведь суть в чем : если бы он был пенсионером , как его сосед , иск не был бы выигран. “ ]

The applicant submits that DATE Mr Tkach lodged in total CARDINAL actions against her and the NORP , of which CARDINAL were lodged on behalf of the prosecutor ’s office and the remaining CARDINAL in Mr PERSON ’s own name .

On DATE the applicant lodged a counterclaim against Mr Tkach . The applicant submitted that Mr PERSON ’s statement “ No journalist should be allowed to make [ the living conditions ] of a prosecutor the subject of a public discussion ” had violated her right to freedom of expression and claimed compensation for non - pecuniary damage .

On DATE Mr Tkach asked the court to leave the statements of claim lodged on behalf of the prosecutor ’s office without examination because he had already brought identical claims on his own behalf .

On DATE ORG of FAC , by an interim decision ( определение ) , granted Mr PERSON ’s request . According to TIME of the court hearing of DATE , the applicant and her representative did not object to continuation of the proceedings on the basis of Mr PERSON ’s statements of claim which he had lodged in his personal capacity .

On DATE ORG of FAC joined all actions and delivered a judgment .

The court found that the contested extracts concerned the quality of Mr Tkach ’s living conditions and his role in the civil proceedings . It scrutinised the judgments made in the civil action lodged by PERSON and the results of the inquiry of the prosecutor ’s office ( of DATE ) and came to the conclusion that the facts related in the article were untrue . The court found no evidence that Mr Tkach , in his professional capacity , had exercised any undue influence on the courts . The court held :

“ Therefore , having examined the evidence and assessed the contents of the article as a whole , including its title ‘ Evil Flat of Prosecutor DATE , and having regard to the fact how a reasonable member of the society would perceive this message , the court comes to the conclusion that the author ’s account of the essence of the civil dispute and the author ’s expressed opinion do not reflect the actual situation .

The word sequences and semantic units in the text , designated by the plaintiff V.N.Tkach , fall within the ambit of the concept of ‘ untrue information’ . The substantial and semantic contents of the texts in question also infringe the legally protected rights and interests of the plaintiff , in particular , his professional reputation .

Under these circumstances the court considers that the claims lodged by Mr Tkach shall be granted . ”

The court pointed out that the principle of equality of arms would prevent a prosecutor from resorting in the civil proceedings to the special powers conferred on the prosecutor ’s office . For this reason the court approved PERSON PERSON ’s decision to withdraw the CARDINAL actions which he had lodged on behalf of the prosecutor ’s office .

The court also accepted the applicant ’s counterclaim and held that Mr Tkach ’s statement challenged by the applicant encroached on the applicant ’s protected journalistic rights .

The court did not award compensation for non - pecuniary damage to either party .

On DATE the applicant appealed against the judgment . On DATE the prosecutor of the Tsentralniy district , Mr S. Myashin , lodged a prosecutor ’s appeal ( кассационный протест ) in the interests of Mr Tkach .

On DATE the ORG quashed the judgment of DATE on procedural grounds and remitted the case for a new examination .

On DATE ORG of FAC delivered a new judgment in the matter . In substance , the court followed the reasoning of the judgment of DATE . The court noted that the judgment made by the district court on PERSON claim had been subsequently upheld by ORG on DATE and also scrutinised by the prosecutor in charge of supervision over the lawfulness of court decisions in civil cases who reported on DATE that no violation had taken place . The NORP Regional prosecutor ’s office and the Presidium of ORG refused to lodge applications for supervisory review as no breaches were found and a request for review was therefore unsubstantiated . The court observed that PERSON PERSON ’s official position was in no way related to the substance of the civil dispute in question ; he was not a plaintiff or a party to the dispute and there were no evidence that he had exercised pressure on the court . Moreover , the first deputy mayor of FAC and the head of the LOC administration confirmed that neither Mr Tkach nor his spouse had ever applied for permission to reconstruct their flat or otherwise improve their living conditions at the expense of neighbours PERSON . On the other hand , the court had regard to the overwhelming evidence showing that neighbours PERSON . maintained the attic in a dilapidated state , flooded PERSON flat and refused access to the attic to housing maintenance workers .

The court held that the information in the articles of DATE and CARDINAL DATE was untrue and damaging to the plaintiff ’s honour and professional reputation and caused him non - pecuniary damage . It awarded Mr FAC CARDINAL,CARDINAL ( ORG CARDINAL ) payable jointly by the applicant and her newspaper .

Having examined the applicant ’s counterclaim against Mr Tkach , the court found that the statement of claim of CARDINAL DATE had been indeed submitted on the prosecutor ’s office stationary , yet it did not specifically mention that the claim had been lodged in the ORG or public interests . The court held that the contested statement should be interpreted as a private person ’s position rather than as a prosecutor ’s injunction . An application to a court for the protection of one ’s rights containing arguments in support of the plaintiff ’s cause can not be held to infringe rights of others . Moreover , the court had regard to the decision of the district court of DATE whereby the contested statement of claim had been left without examination . The applicant ’s counterclaim was therefore dismissed .

The court noted in the judgment that the representatives of the applicant , PERSON and PERSON , did not attend after a break , on DATE of the hearing , despite having been duly informed of the time and place of the hearing agreed between the parties . The court observed that they failed to show any valid reasons for their absence , the documents on the file were sufficient for examination of the merits and that the other party did not object to continuing the examination in their absence .

On DATE the applicant appealed against the judgment . In her appeal the applicant submitted , in particular , that the judgment had been given without her or her representatives being present . She explained that the hearing had begun on DATE , DATE . At TIME the judge had announced a break . The applicant alleged that she had not been informed when the hearing would resume . On DATE , DATE , the applicant ’s representative arrived at the courtroom only to find that the judgment had been delivered on DATE . In her appeal the applicant also challenged the merits of the judgment .

On DATE ORG upheld in substance the judgment of DATE . However , the court reduced the amount of the award to ORG ( EUR CARDINAL ) for the applicant and to RUR CARDINAL ( EUR CARDINAL ) for the Citizen . The court reasoned its decision to reduce the award as follows :

“ ... the extent of the applicants’ liability for dissemination of untrue information is insignificant because the judicial dispute with PERSON and PERSON . concerning the attic had indeed taken place , and the dissemination of damaging and inaccurate information is a result of incorrect , erroneous evaluation of the circumstances of that dispute . ”

The court also found that the applicant and her representative had been duly notified that the hearing would resume at TIME on DATE and their consent had been noted in the transcript of the hearing on DATE .

On DATE and DATE Mr Tkach sent a request to the Head of ORG ( председатель городского Совета депутатов ) to impose a disciplinary sanction on the editor - in - chief of the ORG and the applicant herself with a view of their future dismissal . The sanction was to be imposed for dissemination of untrue information .

On DATE the first deputy prosecutor of LOC , PERSON ORG , sent a “ request to remedy the violation ” ( представление об устранении нарушения ) to the editor - in - chief of the applicant ’s newspaper . The prosecutor requested , inter alia , a decision to apply disciplinary sanctions on the applicant in connection with her having disseminated the information damaging the reputation of the prosecutor of the Moskovskiy district , Mr Tkach .

On an unspecified date the applicant , her former representative PERSON PERSON and the editor - in - chief of the newspaper lodged a civil action against Mr Tkach for the protection of their honour , dignity and professional reputation and compensation for non - pecuniary damage . They submitted that at the oral hearing on DATE in ORG of FAC and in his written submissions to that court Mr Tkach referred to them as “ slanderers ” who “ badgered ” him by publishing “ ravings ” about a non - existent problem and wrote letters to the authorities insisting that the applicant and the editor be dismissed .

On DATE ORG of GPE granted the defamation action lodged by the applicant and her colleagues and ordered Mr Tkach to pay RUR CARDINAL ( EUR CARDINAL ) to each of the applicant and PERSON PERSON . On DATE ORG upheld , on Mr Tkach ’s appeal , the judgment of DATE . On DATE the Presidium of ORG refused the application for supervisory review lodged by the acting prosecutor of GPE against the judgment of DATE .

On DATE ORG of FAC granted yet another defamation action lodged by the applicant against Mr Tkach in connection with the letters which Mr Tkach had sent to the Mayor of GPE and to the Head of ORG . In these letters Mr PERSON requested that the municipal officials stop the publication of “ slanderous ” articles in the newspaper owned by the town administration . The court ordered PERSON Tkach to pay RUR CARDINAL to the applicant .

LAW guarantees freedom of ideas and expression , as well as freedom of mass media .

LAW of the Russian Federation provides that an individual may seize a court with a request for refutation of information ( сведения ) damaging his or her honour , dignity or professional reputation unless the person who disseminated such information proves its accuracy . The individual may also claim compensation for losses and non - pecuniary damage sustained as a result of dissemination of such information .

The Code of Civil Procedure of the RSFSR ( in force at the material time ) provided as follows :

“ A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage , if it is required for the protection of ORG or public interests or rights and lawfully protected interests of citizens .

The participation of a prosecutor in civil proceedings is mandatory in the cases where the law so provides or where the necessity of his participation in a specific case has been recognised by the court .

The prosecutor who participates in the proceedings may study the case materials , bring challenges , produce evidence , take part in the examination of evidence , lodge motions , state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole , as well as perform other procedural actions provided for by law . The prosecutor ’s abandoning of a claim lodged for the protection of interests of another person does not impair that person ’s right to have his case examined on the merits . ”