No violation of Art. 6-1;Violation of Art. 10

Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE . At the material time she was a journalist and the editor - in - chief of the newspaper ORG ( “ ORG ” is a NORP abbreviation meaning “ For Official Use Only ” ) .

NORP In DATE the applicant 's newspaper published in the same issue several items concerning the large - scale misappropriation of budgetary funds allegedly committed by PERSON , the head of ORG , for the benefit of PERSON , an employee of the GPE representative office of GPE .

The first article , entitled “ NORP scandal in the White House ” ( “ Гей-скандал в ORG доме GPE ” ) , appeared under the name of “ PERSON ” . It opened with the following passage :

“ Once upon a time there lived the head of ORG Mr V. He had everything : his position , high esteem and respect . And also the governor 's love .

But ORG fell in love ... not with the governor or with his work , but with DATE employee of the region 's representative office in GPE , PERSON

How does CARDINAL become a homosexual ? Where does this “ love ” come from ?

We are simple unsophisticated people ... And we can not imagine the scene that took place between them in the sumptuous building of the region 's representative office in GPE ... Rumour has it that the governor , on having learnt certain details , was furious ... and even fired PERSON from his position .

But love , as we know , can overcome any obstacle . It finds not only a time , but also a place . ”

The article further asserted that , under the terms of an order signed by PERSON in DATE , the regional railway company had extinguished its outstanding regional tax liability by purchasing a CARDINAL - room flat in GPE :

“ The flat was bought in GPE at the following address : CARDINAL LOC , building CARDINAL , flat no . ...

Initially the flat was even entered in the ORG 's balance sheet . However , after a while ORG made a gift of the flat ... No , please do not think that he gave it to PERSON ... [ He gave it ] to PERSON father . Apparently , as a ' thank - you ' for the upbringing of his son ... ”

The author concluded in the following manner :

“ It might have been a private matter if it were not for CARDINAL ' buts ' .

[ Firstly , ] CARDINAL public figures , rather than private individuals , were linked together by Shakespearean passions in this story . In the instant case : the head of the GPE regional government , ORG , and a member of the regional parliament , K ...

Secondly , the flat was purchased at our expense , at the expense of our budget . MONEY disappeared in DATE into thin air . To date there has been no reimbursement or sanctions on the part of the tax authorities . The [ character from a well - known NORP picaresque novel ] blushed a lot as he was stealing official property , but his like - minded accomplice PERSON never blushes .

And yet , to DATE the entire budget of the region is channelled through his hands . How can we ensure that he handles that money honestly ? ”

On the left - hand column of the page the newspaper reproduced the text of a letter which the deputy director of the GPE regional police had sent to the chairman of the GPE regional audit commission . The police officer informed the auditor that the police were investigating the mechanism which involved extinguishing tax liabilities by acquiring a flat in GPE , and asked the experts of the audit commission to assist by verifying the accounts of the railway company , ORG and the private company that had acted as middleman in the transactions .

The third item , at the bottom of the page , was an article entitled “ History of the flat on GPE [ Street ] . Embezzlement of public funds : a step - by - step guide for beginners ” ( “ ORG квартирки на Оршанской. PERSON стратегия для начинающих казнокрадов ” ) . It described , in chronological order , the financial and real - estate transactions between the railway company and the intermediary company , as well as the orders signed by PERSON and the sale of the flat to PERSON father .

On DATE the prosecutor 's office of GPE , acting on requests from GPE and PERSON , initiated criminal proceedings against the applicant for criminal libel and insult disseminated via the media , offences under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW .

NORP The investigator commissioned a linguistic and cultural expert examination of the articles in question . On DATE the expert came to the conclusion that they contained allegations that ORG and PERSON were homosexuals who had engaged in sexual intercourse in the representative office of GPE . The expert considered that the articles had sought to present a negative image of PERSON :

“ Tolerance towards the customs and mores of others is , in general , uncharacteristic of the NORP mentality , which is also evident in the attitude towards ' sexual minorities ' . The NORP popular mindset and the LANGUAGE language retain a rigidly negative , rude and discourteous attitude to people of non - traditional sexual orientation ( homosexuals and lesbians ) . ”

The expert noted that the author of the first publication had “ a preference for emotional value - judgments ” . The report concluded :

“ In this context the information on the sale and purchase of a flat in GPE at the expense of the budget becomes sensational and seeks to persuade the reader to view ORG as a dishonest manager , embezzler of public funds , and , in addition , an immoral person who craves sensual pleasure and physical attraction and is wanton and lustful . The pragmatic aim of the articles ... is to undermine [ readers ' ] trust in PERSON and PERSON as politicians ... ”

In DATE counsel for the applicant privately commissioned a linguistic expert examination of the articles . The expert found that the word “ homosexual ” had no negative connotations and , therefore , could not be held to damage or undermine the honour and dignity of others . He noted that NORP society in DATE had become more tolerant towards homosexuality and a disclosure of someone 's homosexuality in the mass media was not necessarily damaging to his reputation . Counsel asked the investigator to admit the report in evidence , but her request was refused on the ground that the expert had been a linguist rather than a specialist in cultural studies and thus had not been competent to perform the examination .

On DATE and DATE the applicant was charged with criminal libel and insult disseminated via the mass media .

Following the applicant 's indictment , she and her counsel filed a number of requests . They pointed out that the indictment did not identify which information the prosecution considered untrue . As the actual scope of the investigation had been limited to the allegations about ORG 's homosexuality , the applicant insisted that its scope be extended to include the misappropriation of budgetary funds . Alternatively , if the charges were to be based exclusively on the allegations about PERSON 's and PERSON 's homosexuality , the applicant requested that a medical examination of ORG and PERSON be carried out in order to establish their sexual orientation . On CARDINAL and DATE the investigator refused all the requests . He replied in general terms that the investigation was complete and that no further interviews or expert reports were necessary .

On DATE the final bill of indictment was served on the applicant and the case was referred for trial . The applicant was charged with criminal libel and insult on account of her having disseminated the information that “ PERSON and PERSON [ were ] homosexuals and lovers who [ had ] engaged in a homosexual act in the building of the region 's representative office in GPE ” . The charges did not refer to the allegations of misappropriation of budgetary funds .

The case was referred for trial to the LOC of PERSON , which decided to conduct the trial in private . The applicant and her counsel asked for a public hearing , while the victims and the prosecution stated their objections to giving further publicity to the case . ORG maintained its decision to hear the case in private , noting that it related to the victims ' private life .

The applicant pleaded not guilty . She claimed that she had been convinced of the accuracy of the information on PERSON 's homosexuality because she knew him in person . She also requested leave to adduce in evidence certain material comprising witness statements about a same - sex relationship between PERSON and PERSON ; the court refused this request .

NORP The court examined the witnesses , who testified that the applicant had been in charge of drafting the articles and publishing and distributing the newspaper .

On DATE the ORG gave judgment . It did not make any findings as to whether the information on ORG 's and PERSON 's homosexuality was true or false . Instead , it noted their statements to the effect that the articles in question had been damaging to their reputation as politicians and public servants . Relying on the conclusions of the linguistic expert examination of DATE , ORG found as follows :

“ Indeed , it has been established beyond doubt that the editor - in - chief of ORG , Ya . PERSON , deliberately published ... [ the impugned articles ] which she had drafted . In these articles she stated that the Chairman of ORG , PERSON , and a member of ORG of GPE , PERSON , were homosexual lovers who had engaged in homosexual intercourse in GPE in the building of the representative office of GPE , that is to say , she disseminated information based on her insinuations and which she knew to be untrue and defamatory in respect of the victims . In an attempt to slander the victims , she arranged for the printing of CARDINAL copies of the newspaper and distributed them in LOC . The investigating authorities correctly characterised her actions as libel under LAW , i.e. , dissemination via the mass media of information known to be untrue and damaging to other persons ' honour , dignity and reputation .

In addition , PERSON related in these articles untrue information to the effect that [ ORG and PERSON ] were homosexual lovers who had engaged in homosexual intercourse in GPE in the building of the representative office of GPE , that is , she deliberately assessed the personal qualities and conduct of the victims [ in terms ] which were grossly degrading to their human dignity and which contradicted society 's prevailing approach to the treatment of individuals . Such treatment of the victims must be considered obscene and damaging to their dignity . In order to make the first issue of the newspaper appear important and sensational , she undermined the honour and dignity of the victims in the mass media . Therefore , the investigating authorities correctly characterised her actions as an offence under LAW of LAW . ”

The applicant was found guilty as charged and sentenced to DATE correctional work , with retention of PERCENT of her wages for the benefit of the ORG .

On DATE ORG upheld the conviction , endorsing the reasons given by the trial court .

Subsequently , the applicant was dispensed from serving her sentence on the basis of an amnesty act in respect of women and minors passed by the NORP legislature on DATE .

Article CARDINAL of the LAW of the Russian Federation guarantees freedom of ideas and expression as well as freedom of the mass media .

Article CARDINAL § CARDINAL of LAW of GPE defines criminal libel as dissemination of information known to be untrue that damages the honour and dignity of another person or undermines the person 's reputation . LAW provides that criminal libel disseminated in a public statement , a publicly displayed work of art or the mass media is punishable by a fine and/or correctional work for a period of DATE .

Article CARDINAL § CARDINAL of LAW defines criminal insult as undermining the honour and dignity of the victim in an obscene manner . LAW provides that criminal libel disseminated in a public statement , a publicly displayed work of art or the mass media is punishable by a fine and/or correctional work for a period of DATE .

Article CARDINAL of the Criminal Code establishes that it is a criminal offence to collect or disseminate information about an individual 's private life without his consent or to make such information public through the media .

Article CARDINAL of the RSFSR Code of Criminal Procedure ( in force at the material time ) established that a trial could be conducted in private , in particular with a view to preventing information about intimate aspects of the parties ' lives from being disclosed .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev

The applicant , Mr Mate Čular , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr T. Vukičević , an advocate practising in ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the police authorities seized , from a Mr Z.K. , CARDINAL former NORP dinars ( ORG ) that belonged to the applicant , under suspicion that the CARDINAL of them had received it as a bribe . The applicant submits that he wanted to use the money to buy QUANTITY of pickled ( metal ) sheet ( dekapirani lim ) , which he intended to use in his recently opened locksmith 's business .

On DATE the competent ORG Attorney indicted the applicant and GPE before ORG ( PERSON ) , charging them with the criminal offence of accepting a bribe . On DATE ORG discontinued the criminal proceedings , the ORG Attorney having dropped the charges against the accused . However , the sum seized was not returned to the applicant .

For that reason , on DATE , the applicant brought a civil action against the ORG in ORG . In the period DATE there were several changes to and denominations of domestic currency ( see below under Relevant domestic law ) . So , the applicant initially sought the amount of CARDINAL NORP kunas ( HRK ) together with the statutory default interest accruable since DATE .

During the proceedings , on DATE , a court - appointed financial expert prepared a report according to which , taking into account the inflation rate , the value of ORG CARDINAL in DATE was equal to the value of HRK TIME at the time that he had prepared his report .

On the basis of that report , the applicant amended his claim and sought HRK CARDINAL together with the statutory default interest accruable since DATE .

On DATE ORG ruled in part for the applicant . It held that , by seizing and not returning to the applicant ORG CARDINAL , the ORG had enriched itself without cause , and awarded him HRK CARDINAL together with the statutory default interest accruable since DATE . The remainder of the applicant 's claim , concerning the statutory default interest accrued DATE and DATE , was dismissed .

Following appeals by both parties , on DATE , ORG ( Županijski sud u GPE ) quashed the first - instance judgment and remitted the case . It held that the first - instance court had erred when it had adjusted the applicant 's claim and awarded him the contemporary value of ORG MONEY , because , under the relevant legislation , he was entitled only to the nominal amount .

In the resumed proceedings , on DATE , ORG awarded the applicant HRK CARDINAL.CARDINAL ( as the amount awarded – HRK DATE could be expressed to CARDINAL decimal places ) , together with the statutory default interest accruable since DATE . The remainder of the applicant 's claim was dismissed and he was ordered to pay the respondent HRK CARDINAL for the costs of the proceedings . In the applicant 's submission , the sum he was awarded , including the accrued statutory default interest , was HRK CARDINAL .

On DATE ORG dismissed the applicant 's appeal and upheld the first - instance judgment .

On DATE the applicant lodged a constitutional complaint against the second - instance judgment alleging a violation of his constitutional right to equality before the courts .

ORG ) dismissed the applicant 's constitutional complaint on DATE and served its decision on his representative on DATE .

The LAW on the Change of the Value of the Dinar ( ORG o promjeni vrijednosti dinara , ORG of ORG no . CARDINAL/CARDINAL ) of DATE established the new value of the NORP dinar ( ORG ) so that CARDINAL new dinar corresponded to MONEY .

By the Decision on the Introduction of the NORP Dinar as the GPE on the Territory of GPE ( ORG o uvođenju hrvatskog dinara kao sredstva plaćanja na teritoriju PERSON , ORG no . CARDINAL/CARDINAL ) , which entered into force on DATE , GPE introduced its own currency , NORP dinar ( ORG ) . The NORP dinar ( ORG ) was replaced by the NORP dinar at an exchange rate of DATE .

On DATE the Decision on the Termination of the Validity of the Decision on the Introduction of the NORP Dinar as the GPE on the Territory of GPE and on the Manner and ORG Expressed in NORP Dinars into PERSON and PERSON ( ORG o prestanku važenja ORG o uvođenju hrvatskog dinara kao sredstva plaćanja na teritoriju PERSON , te o načinu i vremenu preračunavanja iznosa izraženih u hrvatskim dinarima u kune i lipe , ORG no . CARDINAL ) entered into force , introducing the NORP kuna ( HRK ) as the currency of GPE . It provided that the NORP dinar should be replaced by the NORP kuna at an exchange rate of MONEY to MONEY .

The relevant part of LAW ( Zakon o obveznim odnosima , ORG of ORG nos . CARDINAL , DATE and DATE , and ORG no . CARDINAL/CARDINAL with subsequent amendments ) , which was in force at the material time , provided as follows :

ENRICHMENT WITHOUT CAUSE

“ ( CARDINAL ) When a part of the property of CARDINAL person passes , by any means , into the property of another person , and that transfer has no basis in a legal transaction or a statute [ that is , it is without cause ] , the beneficiary shall be bound to return that property . If restitution is not possible , he or she shall be bound to provide compensation for the value of the benefit received .

( CARDINAL ) ...

( CARDINAL ) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not come into existence or which subsequently ceased to exist . ”

“ When returning what has been received without cause , the beneficiary shall also be bound to return any profit or benefit accrued , and to pay the default interest , and to do so , if he or she was in bad faith , from DATE of the enrichment , or otherwise from DATE the request [ for the return of the property ] was made . ”

DEFAULT INTEREST

“ ( CARDINAL ) The creditor shall have a right to default interest irrespective of whether or not he sustained any damage on account of the debtor 's default .

( CARDINAL ) If the damage sustained by the creditor on account of the debtor 's default is greater than the amount received as default interest , he or she shall have a right to claim damages up to the full amount of the compensation due . ”

MONETARY OBLIGATIONS

“ When an obligation has for its object a sum of money , the debtor is bound to pay the number of monetary units in which the obligation is expressed [ that is , its nominal value ] , unless the law provides otherwise . ”


Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings

The applicants , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , ORG , GPE and PERSON , are NORP nationals , who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively . They all live in LOC GPE .

DATE and DATE the applicants were taken into police custody in Silopi by policemen on suspicion of aiding and abetting an illegal organisation , namely the ORG .

At the end of their police custody , the applicants were brought before ORG and were subsequently placed in detention on remand .

On an unspecified date in DATE the public prosecutor at ORG filed a bill of indictment . He accused the applicants of aiding and abetting an illegal organisation , and called for them to be sentenced pursuant to LAW .

The applicants were all released pending trial .

On DATE ORG , which was composed of CARDINAL judges including a military judge , found the applicants guilty as charged and sentenced them to different terms of imprisonment , ranging DATE .

On DATE ORG , upholding ORG reasoning and assessment of evidence , dismissed the applicants ' request for appeal .

A full description of the domestic law may be found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Remainder inadmissible;Violation of Art. 8;Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , in the municipality of PERSON ( GPE ) .

On DATE the applicant married PERSON , an NORP national . The couple had a child , GPE , who was born on DATE . In DATE the applicant and PERSON separated .

PERSON , together with her daughter , moved to her GPE house in GPE , GPE .

On DATE , using forged documents , the applicant ’s wife married another person without being divorced from the applicant .

It appears that on DATE the ORG annulled PERSON ’s second marriage . On an unspecified date she married GPE , an NORP national who resided in GPE .

During DATE that followed PERSON third marriage , she frequently travelled to GPE , leaving her daughter for long periods with her parents in PERSON , or taking her to GPE without the applicant ’s consent .

F.M. and her parents prohibited the applicant from having contact with his daughter . Since his separation from GPE , the applicant has been permitted to see his daughter only twice , in DATE and DATE .

On DATE the applicant brought divorce proceedings before GPE .

On DATE the applicant requested PERSON to block his daughter ’s passport in view of the fact that his wife was planning to take her to GPE without his consent .

Despite the applicant ’s requests to LOC , it appears that his wife took the child to GPE on DATE , using an official certificate in which the applicant ’s daughter had been registered with the name GPE , using PERSON ’s surname .

The applicant ’s wife was not present at the hearings . The latter ’s father testified before the court that his grandchild was in GPE with her mother , who resided there as an economic refugee .

On DATE the ORG decreed the parties’ divorce . The court granted custody of the child to the applicant , having regard to the wife ’s lack of interest in the child ’s life , the instability of her residential arrangements and her long periods of separation from the child .

On DATE the divorce and custody decisions became final .

On DATE the ORG issued a writ for the enforcement of LOC judgment of DATE .

On DATE the ORG informed the applicant that it was impossible to enforce the judgment since the child was not in GPE .

On DATE and CARDINAL DATE the applicant applied to ORG to secure the return of his daughter .

On DATE , when questioned by the bailiffs , PERSON ’s father declared that PERSON and the child were living abroad and that he had no news of their whereabouts . The bailiffs went to PERSON ’s home on CARDINAL occasions DATE and DATE .

In DATE the GPE FAC informed the bailiffs that PERSON and her daughter were not living in GPE and that PERSON ’s father had moved to an unknown address in GPE .

In DATE ORG informed the applicant that in order to comply with the bilateral agreement between GPE and GPE he had to introduce a request and specify the precise address of the child in GPE .

The applicant sent numerous requests to the NORP authorities , ORG in GPE , the PERSON of Albania ( Avokati i Popullit ) and the PERSON of GPE , in order to obtain assistance in securing the enforcement of the custody decision .

On DATE the applicant initiated criminal proceedings with the ORG against his former wife , accusing her of child abduction .

On DATE the ORG informed the NORP PERSON that no lawsuit had been filed with it relating to the abduction of the applicant ’s daughter .

On DATE the applicant initiated criminal proceedings against ORG , a ORG employee . He accused her of falsifying various documents that had enabled PERSON to remove GPE from GPE , and particularly of forging documents declaring his wife to be unmarried and altering his daughter ’s surname .

On DATE the ORG decided to discontinue the proceedings .

On DATE the Government informed the Registry that on DATE ORG had repealed the custody judgment of DATE on the grounds that PERSON had not been duly informed of the proceedings on the custody of her daughter . The domestic court decided to send the case to LOC for a fresh examination and thus the custody proceedings are still pending .

On DATE , following the ORG ’s request , the applicant stated that he had neither been informed of the institution of the new proceedings nor about their outcome .

The proceedings had been brought by PERSON ’s lawyer and held in the applicant ’s absence .

At present , GPE has not ratified LAW DATE on ORG .

LAW , ratified by GPE on DATE , requires GPE Parties to take measures to combat the illegal transfer and non - return of children abroad . For that purpose , GPE should promote the conclusion of bilateral or multilateral agreements or accession to existing agreements .

This Agreement , signed on CARDINAL DATE , was ratified by GPE pursuant to Law no . CARDINAL of DATE and by GPE pursuant to PERSON no . CARDINAL . Articles CARDINAL , CARDINAL , DATE and DATE of the Agreement provide for the possibility for ORG of both Contracting Parties to cooperate in the recognition and execution in their territories of final judicial decisions given by the authorities of the other ORG in civil , family and commercial matters .

The Code of Civil Procedure , which governs , inter alia , execution of final judgments , does not contain any provisions specifically applicable to the transfer of custody of children . As a result , the general procedural rules on the execution of judgments are applicable mutatis mutandis .

In cases where a parent ’s refusal to comply constitutes a criminal offence , the matter should be referred to the prosecuting authorities .

Failure to abide by a final decision concerning custody of children may be punishable under LAW .