The applicant is a NORP national , born in DATE , and , at the time of the introduction of the application , was detained in the GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

On DATE , the applicant , an employee of ORG , was arrested and taken into detention on suspicion of embezzlement and of having been involved in a robbery committed on DATE at FAC . On DATE , following the applicant ’s appeal against a decision of CARDINAL DATE prolonging his pre - trail detention , ORG ( Gerechtshof ) of GPE ordered the applicant ’s release from pre - trial detention .

After an initial summons had been withdrawn , the applicant was summoned to appear on DATE before ORG ( Arrondissementsrechtbank ) of GPE . The judges dealing with his case would be PERSON as President , and PERSON and PERSON

On DATE , the applicant filed an objection ( bezwaar ) against the summons . On DATE , after having deliberated , ORG sitting in chambers ( Arrondissementsrechtbank in Raadkamer ) , composed of PERSON , PERSON and PERSON , rejected the objection . Subsequently and on DATE , ORG commenced its examination of the charges brought against the applicant .

As the composition of ORG was the same as that of ORG sitting in chambers that had rejected the objection against the summons , the defence challenged ( wraking ) the CARDINAL judges . After having deliberated , CARDINAL other judges of ORG rejected the challenge . ORG , in its original composition , then resumed its examination of the applicant ’s case .

In the course of DATE , ORG took a short break in order to hand down its judgment in the criminal proceedings that had been brought against the coaccused R.M. Sitting in the same composition as in the applicant ’s case , ORG convicted PERSON of the robbery committed on DATE .

After having become aware of this , the applicant challenged ORG for a second time when DATE the court resumed its examination of his case . After having deliberated , CARDINAL other judges of ORG rejected the challenge . ORG , in its initial composition , resumed its examination . It considered a request of the defence to take evidence from TIME witnesses , ordered that evidence should be taken from CARDINAL of them and adjourned its further examination .

On DATE , ORG heard evidence from the CARDINAL witnesses whose appearance it had ordered on DATE and heard the parties’ final pleadings .

In its judgment of DATE , ORG convicted the applicant of robbery committed on DATE at FAC , and participation in the commission of unlawful deprivation of liberty and embezzlement . The applicant filed an appeal with ORG ( Gerechtshof ) of GPE .

On DATE , ORG started its examination of the applicant ’s appeal . Further hearings were held on DATE and DATE , in the course of which ORG , inter alia , heard a number of witnesses .

In its judgment of DATE , ORG quashed the judgment of DATE . On the basis of the full rehearing on both facts and law that had taken place before it , ORG convicted the applicant of participation in a robbery and embezzlement , acquitted him of the remaining charges and sentenced him to CARDINAL years’ imprisonment . It rejected the argument advanced by the defence that , given the composition of ORG , the case should be referred back to ORG as ORG that had convicted the applicant could not be considered as an impartial tribunal in that the same judges had rejected the applicant ’s objection against the summons and had already formed a view on the matter in that they had already convicted a co - accused . The applicant filed an appeal in cassation with ORG ( PERSON ) .

By judgment of DATE , ORG rejected the applicant ’s appeal in cassation . It rejected the applicant ’s arguments in relation to the alleged partiality of ORG .


The applicant was born in DATE and lives in the town of LOC ORG .

According to the applicant , on DATE the police instituted administrative proceedings against him for having disobeyed a lawful order of a police officer and arrested him . On DATE the ORG of GPE discontinued the proceedings because there was no indication of an administrative offence . The decision of ORG did not contain any reference to the applicant 's alleged deprivation of liberty .

The applicant submitted that after the hearing the policemen brought him back to a police station . They handcuffed him to a heating device , put a plastic bag on his head and severely beat him up .

On DATE an investigator of ORG of ORG instituted criminal proceedings against the applicant and CARDINAL other persons on suspicion of participation in a criminal enterprise and ordered their arrest . As it follows from a record of DATE , the applicant was arrested on DATE at TIME He was also charged with unlawful possession of a weapon .

On DATE the ORG acquitted the applicant and ordered his immediate release . The judgment became final on DATE when it was upheld by ORG of the Karachayevo - Cherkessiya Republic .

In DATE the applicant lodged an action against the ORG and ORG of GPE for compensation for non - pecuniary damage incurred through unlawful detention .

On DATE the ORG accepted the applicant 's action and ordered that ORG should pay the applicant MONEY ( ORG , CARDINAL ) at the expense of the ORG . ORG held as follows :

“ Mr PERSON was unlawfully detained from DATE to DATE , that is for a total of DATE .

It was proven at the court hearing that Mr PERSON sustained non - pecuniary damage and it should be compensated because he was acquitted by a final judgment .

According to paragraph CARDINAL of the Decree of the Plenary Supreme Court of the Russian Federation no . CARDINAL of DATE On certain questions concerning application of the domestic law on compensation for non - pecuniary damage ' ... the amount of compensation depends on the character and extent of moral and physical suffering caused to the plaintiff , fault of the defendant in each particular case , and other circumstances which merit attention ...

The court ... takes into account that the amount and extent of moral and physical suffering of a person depend on his subjective perception of the existing situation and considers that , having regard to the arguments and evidence submitted by the parties , it is possible to award the plaintiff MONEY in compensation for non - pecuniary damage .

Assessing the moral sufferings caused to the plaintiff , possible consequences of the plaintiff 's conviction , and having examined the materials of the criminal case - file , the court considers that the awarded amount is reasonable and fair . ”

The judgment of DATE was not appealed against and became final .

On an unspecified date the President of ORG of the Karachayevo - Cherkessiya Republic lodged before the Presidium of ORG an application for a supervisory review of the judgment of DATE because ORG should have issued the judgment directly against the ORG and should have excluded ORG from the proceedings .

On DATE the ORG of ORG of ORG , by way of supervisory - review proceedings , quashed the judgment of DATE and remitted the case for a fresh examination . The ORG noted that ORG had incorrectly assessed the amount of compensation and that it should have joined the ORG as defendant to the proceedings .

On DATE the ORG found that the applicant 's detention had been unlawful but reduced compensation to ORG CARDINAL,CARDINAL ( EUR CARDINAL ) . The reasoning in the judgment of DATE repeated word by word that of the judgment of DATE , save for the amount in the penultimate paragraph where CARDINAL was replaced with CARDINAL . The judgment of DATE was upheld on appeal on DATE .


Government's request to strike the application out rejected;Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

On DATE the ORG ( Sąd Rejonowy ) remanded the applicant in custody for DATE on CARDINAL counts of armed robbery . It considered that that measure was indispensable in order to secure the proper conduct of the proceedings , having regard to the serious nature of the offences in question and the likelihood of a custodial sentence .

The first hearing took place on DATE . Since that date CARDINAL hearings have been scheduled and CARDINAL witnesses heard . Many hearings have been adjourned .

On DATE the court decided that , because of the lengthy illness of a judge rapporteur , a new bench should be appointed . This meant that the proceedings had to be restarted .

On DATE the ORG ( PERSON ) severed the bill of indictment and ordered that cases against CARDINAL other coaccused be tried in separate proceedings .

The proceedings are still pending .

On DATE the applicant lodged a complaint about the undue length of the criminal proceedings under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) and requested just satisfaction of PLN CARDINAL,CARDINAL .

On DATE the ORG ( Sąd Apelacyjny ) dismissed his complaint on the ground that since the date of entry into force of the DATE Act no undue delays in the proceedings could be discerned , the proceedings having been conducted with due diligence and within a reasonable time . The court observed that LAW had entered into force on DATE and could not be applied to the proceedings before that date .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


CASE OF EERIKAINEN AND OTHERS  v. FINLAND

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

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The first applicant was born in DATE and lives in PERSON . The second applicant was born in DATE and was resident in Härmä at the time of his death .

The first applicant is a freelance journalist . In DATE he wrote an article about criminal proceedings which were then pending before ORG ( käräjäoikeus , tingsrätten ) . Those proceedings were public in nature . A defendant , X , was charged with various counts of tax fraud and aggravated fraud for allegedly deceiving ORG ( kansaneläkelaitos , folkpensionsanstalten ) and insurance companies . The article was published in issue no . CARDINAL/CARDINAL of the magazine ORG , and entitled : “ It seemed legal , but ... a woman entrepreneur cheated to obtain a pension of MONEY ? ” ( In NORP : Näytti lailliselta , mutta ... yrittäjärouva huijasi yli CARDINAL miljoonan eläkkeen ? ) . The article did not mention X ’s name . In the magazine ’s table of contents , however , her first name was mentioned . The article included a reproduction of an article which had been published DATE previously with CARDINAL photographs of X. That article , written by the first applicant , had been published in another magazine and mentioned X ’s full name and included CARDINAL photographs of her , CARDINAL taken inside her home and another in her garden . The article was about a house purchased by the applicant which turned out to be full of rising damp . This situation naturally made her extremely miserable as she had spent her money on an uninhabitable house .

In DATE X lodged a criminal complaint , and proceedings were instituted against the applicants . On DATE , however , ORG dismissed the charges . X appealed to ORG ( hovioikeus , hovrätten ) , which upheld the judgment on DATE . X was ordered to reimburse the ORG legal costs .

Subsequently , X brought civil proceedings against the applicants before ORG . She claimed that the said article had incriminated and insulted her and , in the alternative , that her picture had been published without her consent , causing her mental suffering . She requested compensation for non - pecuniary damage amounting to MONEY ( ORG ) ( MONEY ( ORG ) ) . In the alternative , she claimed compensation for the publication of her picture and non - pecuniary damages amounting to LAW ( ORG CARDINAL ) . She also claimed pecuniary damages amounting to ORG CARDINAL ( EUR CARDINAL,CARDINAL ) . In a hearing before the court she claimed that publication of the article and photograph had amounted to an invasion of her privacy .

In its judgment of DATE ORG found that , given that X had been only a suspect at the time and the criminal case against her had still been pending , it had been wrongly alleged in the table of contents and in the headline of the article that she had obtained pension payments by fraud . The case thus amounted to defamation , as set out in LAW of LAW ( rikoslaki , strafflagen ) . The court found that other parts of the article were not defamatory . Under LAW ( vahingonkorvauslaki , skadeståndslagen ; Act no . CARDINAL ) , the court ordered the applicants jointly and severally to pay ORG CARDINAL ( ORG CARDINAL ) for non - pecuniary damage and ORG CARDINAL ( ORG CARDINAL,CARDINAL ) for pecuniary damage , and to pay her legal costs . Finally , it found that , having regard to the above , there was no need to adjudicate on her second claim .

The applicants appealed to ORG , asserting their right to freedom of expression . X also appealed , requesting that the amount of damages be increased .

On DATE , without holding an oral hearing , the appellate court quashed the judgment , reasoning , inter alia , that :

“ ... It was clear from the text of the article that it concerned a pending public trial . PERSON ’s identity was not revealed in the headline , thus she could not be assumed to be guilty of an offence only by reading the headline . Neither was her identity disclosed in the table of contents ; to identify her required reading through the article . The text of the article is not defamatory or slanderous on the grounds set out in ORG judgment . Publishing an article about charges brought before a public trial is justified , even though it might cause suffering for the accused . The act did not amount to defamation ...

... the crimes allegedly committed can not be regarded as minor , taking into account their extent , effects and social importance . An article about this kind of case , and the publication of a photo from which [ X ] could have been identified , is not a violation of her privacy . ”

X applied for leave to appeal to ORG ( korkein oikeus , högsta domstolen ) .

On DATE ORG granted leave to appeal . On DATE it issued its judgment , which became a precedent ( ORG ) . ORG ruled that , in line with the grounds of ORG judgment , the applicants were not guilty of defamation . It found , however , that by attaching the said illustration ( in NORP : kuvitus ; that is by reproducing the old article which included X ’s name and photographs ) , the applicants had violated her right to privacy , and ordered them jointly to pay ORG CARDINAL ( ORG CARDINAL,CARDINAL ) for non - pecuniary damage together with interest from the service of the summonses in DATE and to reimburse her legal costs . The court reasoned , inter alia , that :

On the grounds mentioned in ORG judgment , ORG considers that [ the first and the second applicants ] have not committed an act of defamation within the meaning of LAW , LAW as in force at the time of the act . [ see paragraph CARDINAL above ]

The question thus raised by this case is whether [ the first and the second applicants ] without a legal right through the use of a mass medium or in another similar manner have publicly spread information , an insinuation or an image depicting the private life of [ X ] which has been conducive to causing her damage or suffering and are thereby guilty of invasion of privacy within the meaning of LAW , LAW , of LAW as in force at the time of the publishing of the article .

According to this provision of law , making public [ an article that discusses ] a person ’s actions in public office or function , in business life , in a political or other comparable activity , is not to be considered an invasion of privacy if the reporting is necessary to address a matter of social importance . As noted in the travaux préparatoires ( HE no . CARDINAL/CARDINAL vp ... ) this is relevant chiefly in domains where decision - making takes place or in which the circumstances in reality may affect the DATE life of several persons or which have relevance of principle . According to the travaux préparatoires , such domains are first and foremost the attendance to a public office or function , business life and political activity . According to the said provision , what is essential is whether there is a significant social need to discuss the acts of the person concerned by making public facts which would otherwise belong to the sphere protected by the right to respect for private life .

The criminal case , which has been the object of the article published in the ORG magazine , has concerned , inter alia , the question whether [ X ] in order to obtain an unlawful financial benefit , by concealing that she received her livelihood as an entrepreneur , had misled ORG and the insurance companies to grant her a disability pension thereby causing them economic loss . The acts mentioned in the charge related to [ X ’s ] actions as an entrepreneur in a relatively small cleaning firm . Although the criminal case concerned substantial financial benefits , it was not a case which , viewed on its own , was of such general public interest that there would have been grounds to reproduce , as part of an article and without [ X ’s ] consent , another article that included her name and photograph . Although the underlying purpose of the article might have been to draw attention to the abuse of social benefits in general by using an individual case and thus to a negative social phenomenon , it was not necessary or justified to publish without authorisation an illustration revealing the identity of an individual private person charged with or convicted of such an offence and in a similar position to [ X ] .

Thus , [ the first applicant ] , who wrote the article in question and intentionally used as an illustration the afore - mentioned earlier published article written by him and the photograph of X in that connection , and [ the second applicant ] , who in his capacity as the magazine ’s editor - in - chief approved the publication of the article , have through their acts without a legal right by the use of a mass medium publicly spread information , an insinuation or photograph depicting the private life of [ X ] which was conducive to causing her damage or suffering .

Whether or not the fact that [ X ] was recognisable was due to a mistake or other technical factor when the magazine was printed has no relevance in the legal assessment of the acts of [ the first and the second applicants ] since the article in question together with its illustration has been made public without seeing to and making sure that the typography of the article did not disclose [ X ’s ] identity . ”

Meanwhile , on DATE ORG convicted PERSON , inter alia , CARDINAL offences of tax fraud and CARDINAL offences of aggravated fraud and sentenced her to an immediate term of DATE and CARDINAL months’ imprisonment . She was also ordered to pay damages .

On DATE ORG upheld X ’s conviction for , inter alia , tax fraud , aggravated fraud and fraud , without amending the sentence .

Section CARDINAL ( as amended by Act no . CARDINAL , which took effect on CARDINAL DATE and remained in force until DATE ) of LAW ( Suomen Hallitusmuoto , ORG , Act no . CARDINAL/CARDINAL ) , provided :

“ Everyone has the right to freedom of expression . The right to freedom of expression entails the right to impart , publish and receive information , opinions and other communications without prior hindrance from anyone . More precise provisions on the exercise of the right to freedom of expression shall be prescribed by an Act of ORG . Restrictions on pictorial programmes necessary for the protection of children may be prescribed by LAW .

Documents and recordings in the possession of the authorities are public , unless their publication has , for compelling reasons , been specifically restricted by an Act . Everyone has the right of access to public documents and recordings . ”

The same provision appears in LAW ( Act no . MONEY ) .

Section CARDINAL of LAW ( as amended by Act no . CARDINAL/CARDINAL ) corresponded to LAW , which provides that everyone ’s right to private life is guaranteed .

Section CARDINAL of the Freedom of the Press Act ( painovapauslaki , tryckfrihetslagen ; Act no . CARDINAL/CARDINAL ) , as in force at the relevant time , provided that the provisions of LAW applied to the payment of compensation for damage caused by the contents of printed material .

LAW , section CARDINAL , of LAW stipulates that damages may also be awarded for distress arising from an offence against liberty , honour or domestic harmony or from another comparable offence . Under LAW , LAW , of the said LAW , damages shall constitute compensation for personal injury and damage to property . LAW provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury , as well as loss of income and maintenance and pain and suffering .

Chapter DATE , Article CARDINAL , of LAW , as in force at the relevant time , provided that a person who unlawfully , through the use of the mass media or in another similar manner , publicly spread information , an insinuation or an image depicting the private life of another person which was liable to cause him or her damage or suffering , should be convicted of invasion of privacy and sentenced to a maximum term of DATE imprisonment or to a fine . A publication that discussed a person ’s behaviour in public office or function , in professional life , in a political or other comparable activity , was not to be considered an invasion of privacy if the reporting was necessary to address a matter of social importance .

In DATE , LAW , LAW , of LAW was replaced by LAW , LAW no . CARDINAL/CARDINAL ) . Under the new provision on the injury of personal reputation ( yksityiselämää loukkaavan tiedon levittäminen , spridande av information som kränker privatlivet ) , a person who unlawfully , through the use of the mass media or in another manner , publicly spreads information , an insinuation or an image of the private life of another person in such a way that the act is conducive to causing that person damage or suffering or subjecting that person to contempt , shall be convicted of injuring personal reputation . However , an act shall not constitute an injury to personal reputation if it concerns the evaluation of that person ’s activities in a professional or public capacity and if it is necessary for the purpose of addressing a matter of importance to society . According to ORG DATE Report ( lakivaliokunta , lagutskottet ; PERSON ) , the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions .

Section CARDINAL of the Public Nature of Court Proceedings Act ( laki oikeudenkäynnin julkisuudesta , lag om offentlighet vid rättegång ; Act no . ORG ) , as in force at the relevant time , provided that the name , profession and domicile of the parties and the nature of the subject matter and the time and place of a hearing were public information from the beginning of the trial at the latest . Section CARDINAL provided that the public had the right to be present during hearings unless otherwise provided in the relevant legislation . Section CARDINAL stated that the provisions laid down in ORG ( laki viranomaisten toiminnan julkisuudesta , lag om offentlighet i myndigheternas verksamhet : Act no . CARDINAL ) were applicable to trial documents . Information and documents relating to a trial are , as a rule , public once charges have been brought unless provided otherwise by an Act .

In a ORG decision ( ORG CARDINAL ) the following was noted ( summary from the ORG ) :

“ The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff ’s consent . He was convicted of a violation of private life and ordered , jointly with the political organisations which had acted as publishers , to pay damages for mental suffering . ”

In DATE ORG delivered CARDINAL decisions relating to articles which had given information on cases of arson . The first decision ( ORG CARDINAL:CARDINAL ) concerned a newspaper article ( summary from ORG Yearbook ) :

“ A newspaper published an article concerning cases of arson , in which it was said that the suspect was the wife of the head of a local fire department . As it was not even alleged that the head of the fire department had any role in the events , there was no justifiable reason for publishing the information on the marriage between him and the suspect . The publisher , the editor - in - chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life . ”

The second decision ( ORG CARDINAL:CARDINAL ) concerned an article published in a periodical , which was based on the afore - mentioned newspaper article ( see the previous paragraph ) and on the records of the pre - trial investigation and the court proceedings , but did not indicate that the newspaper article had been used as a source ( summary from the ORG ) :

“ Compensation was ordered to be paid for the reason that the article violated the right to respect for private life . Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation in view of the fact that the information had been reported in another publication at an earlier stage . ”

The article published in the periodical had also mentioned the name and profession of the head of the fire department , although the offence was not related to the performance of his duties . Thus , it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence . The fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure , before publishing the information again , that the article did not contain information insulting the persons mentioned in it . The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical . Repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation . The readers of the newspaper and the periodical were partly different , and the circulation of the newspaper apparently did not entirely coincide with that of the periodical . Therefore , and considering the differences in the content and tone of the articles , ORG found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering . The events reported in the article did not concern the plaintiff ’s conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant ’s name and profession for the purpose of discussing a matter involving significant public interest or reporting on the offences . By associating the complainant ’s name and profession with the offences in question , the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering . The disclosure of the complainant ’s name and the emphasis on his occupation had amounted to an insult . By again reporting on DATE after the events had occurred , the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid .

ORG decision of DATE ( ORG ) concerned the broadcasting of the name of a woman who , together with a person in a public position , had been a party to an assault . The court found that the facts discussed in the television programme with regard to the woman were part of her private life and enjoyed the protection of privacy . The fines imposed on her as punishment for the assault did not constitute a criminal - law sanction justifying publication of her name .

Another decision of DATE ( ORG ) concerned an article about a relationship between A , who worked as a press officer for a candidate in the presidential elections , and B , the ex - spouse of a TV journalist . A ’s photo was included in the article . ORG , having assessed the provision on the invasion of privacy in LAW in the light of this ORG ’s case - law , found that A did not hold a position that meant that such details of her private life were of public importance . The article had thus invaded A ’s privacy .

In a decision of DATE ( ORG CARDINAL:CARDINAL ) , ORG noted that an offence is not a private matter of the offender . In principle , however , a person convicted of and sentenced for having committed an offence also enjoys the right inherent in private life to live in peace . According to LAW , any information about the commission of an offence and the resulting sentence qualifies as “ sensitive ” personal data . The publicity per se of criminal proceedings and of related documents does not mean that information made public during the proceedings can be freely published as such by the media . ORG concluded that publishing the name of a person convicted of , inter alia , assault and deprivation of liberty did not invade his privacy as the person concerned had been convicted of offences of violence which had also degraded the victim ’s human dignity . Furthermore , the impugned article did not include his photo .

The Union of Journalists in GPE ( ORG , PERSON ) publishes Guidelines for Journalists ( NORP ohjeet , PERSON ) for the purposes of self - regulation . The DATE Guidelines were in force at the material time and provided , inter alia , that the publication of a name and other identifying information in the context of reporting on offences was justified only if a significant public interest was involved . The suspect ’s identity was not usually to be published before a court hearing unless there were important reasons relating to the nature of the offence and the suspect ’s position which justified publication ( Article CARDINAL ) .

New Guidelines came into force in DATE , which noted that when publishing public material regard must be had to the protection of private life . The public nature of information does not necessarily mean that it may be published . Special care must be observed when discussing matters concerning a minor ( LAW . The name , photograph or other identifying facts of a convicted criminal may be published unless it is considered unjust in terms of his / her position or offence . As regards a minor or an unaccountable person information should be disclosed with restrain ( Article CARDINAL ) . A journalist must be careful not to present information that may lead to the identification of a person in cases where he / she is only a suspect or has merely been charged ( Article CARDINAL ) .

On DATE ORG Recommendation No . Rec(CARDINAL)CARDINAL on the provision of information through the media in relation to criminal proceedings . In point CARDINAL of the principles appended to the recommendation , it considers as follows :

“ Protection of privacy in the context of on - going criminal proceedings

The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW . ”

The commentary to the recommendation considers as follows ( paragraphs CARDINAL and DATE ) :

“ Everyone has the right to the protection of private and family life under LAW . Principle CARDINAL recalls this protection for suspects , the accused , convicted persons and other parties to criminal proceedings , who must not be denied this right due to their involvement in such proceedings . The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court . It furthermore may prejudice the reintegration into society of the person concerned . The same applies to the image of the accused or convicted . Therefore , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle .

An even stronger protection is recommended to parties who are minors , to victims of criminal offences , to witnesses and to the families of suspects , the accused and convicted persons . In this respect , member states may also refer to Recommendation No . R ( CARDINAL ) CARDINAL on the position of the victim in the framework of criminal law and procedure and Recommendation No . R ( CARDINAL ) CARDINAL concerning the intimidation of witnesses and the rights of the defence . ”

ORG submitted the following .

In GPE and GPE , there is no restriction on publishing pictures of persons subject to pending criminal proceedings , provided that the journalist , according to generally accepted procedure , clearly and explicitly mentions that the person has not yet been found guilty .

In GPE , there is no restriction on pubCARDINALishing the photograph of a person accused of a crime , unless the person himself / herself or the court explicitly expresses his or her wish not to be photographed or not to be published . In practice , publication of names and photos happens DATE , with the clear mention that the person is suspected but not guilty . The Declaration of Duties and Rights of Journalists and the Code of Conduct of Journalism also impose an obligation to check the information , to respect privacy , and to correct false information if necessary .

Article CARDINAL of the NORP Press Code provides that the press must respect the private life and intimate sphere of persons . If , however , the private behaviour of a person touches upon public interests , then it may be reported on in individual cases . Care must be taken to ensure that the privacy rights of uninvolved persons are not violated . The press must respect a person ’s right to self - determination concerning information about them and guarantee editorial data protection .

GPE sets out the basic principles of responsible independent journalism and has been the model for numerous other journalist codes . It states , among other things , that a journalist shall strive to ensure that information disseminated is honestly conveyed , accurate and fair and does nothing to intrude into a person ’s private life , grief or distress unless justified by overriding public interest considerations . In addition , LAW states that , in reporting on crime , relatives or friends of persons convicted or accused of crime should not generally be identified without their consent , unless they are genuinely relevant to the story .

There is no hard and fast rule in the NORP Guidelines for Journalists . The DATE Guidelines urge caution and judgment , especially when a case is only at the accusation stage . However , a public figure is less protected than an ordinary person . A politician or a business leader accused of an offence can be identified for a less serious crime . The gravity of the crime is also an obvious relevant factor . The central question is who is a public figure . There have been cases where spouses , girlfriends or boyfriends of public figures have argued that they were not , and won their case in court . Recently following a school massacre the Minister of the ORG disclosed the name of the killer in a live televised press conference , TIME after the incident . The police also recently published the name and picture of a man accused of ( and later convicted of ) spreading HIV , as well as the names and pictures of CARDINAL escaped convicts . The basis of the decision was public security . Many companies have their own code of conduct . According to most of the companies the name of a convicted person can be published if the sentence is DATE or more in prison , that is , where the crime is serious . But this is usually restricted if publishing the name may disclose the identity of the victim ( child abuse cases , for example , ) or if the person convicted is a minor .


The applicant , PERSON , is a NORP national , born in DATE and living in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .

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

The applicant is the Managing Director of the company ORG and in that capacity he obtained a number of loans from PERSON . Each time a loan was agreed , both parties entered into a written agreement which provided that the loan would become payable to Dr GPE with PERCENT interest at DATE . Each time the applicant received a loan , he issued a personal post - dated cheque in Dr LOC ’s favour for the sum due at the end of DATE period . The amount included both the capital and the interest . When the various cheques became payable , PERSON did not cash them , but instead , entered into new agreements with the applicant whereby the sums due were referred to as “ capital loaned ” , again attracting PERCENT interest . The old agreements and cheques were cancelled by the new agreements .

In DATE , the parties decided to merge the numerous agreements and , when all sums fell due , they were added together to form the basis of CARDINAL further agreements : the first , dated DATE , showed the capital at QUANTITY ( ORG ) . The second , dated DATE , showed the capital at CARDINAL ORG . The new agreements provided for the reimbursement of the capital , plus interest at PERCENT , at DATE and were supported by CARDINAL new post - dated personal cheques of the applicant . These cheques were presented to the applicant ’s bank and were both dishonoured . On DATE , PERSON filed a private prosecution before ORG of GPE against the applicant pursuant to LAW of FAC .

At the material time in DATE , a criminal offence was deemed to have been committed under Section CARDINAL(A)CARDINAL where a cheque was dishonoured due to a lack of funds in the drawer ’s bank account . LAW provided that no offence was committed if the bearer of the cheque had no “ actionable right ” against the drawer .

On DATE ORG of GPE acquitted the applicant . In particular , it accepted the applicant ’s argument that subsection CARDINAL of Section CARDINAL(A ) applied in the case since the agreements under which the cheques were issued were illegal under NORP law ( Sections CARDINAL and CARDINAL of PERSON CARDINAL/CARDINAL and Sections CARDINAL and CARDINAL of the Contract Law Cap.CARDINAL ) . In fact , PERSON had charged interest above PERCENT per year allowed by law , namely PERCENT ( PERCENT DATE ) . This being so , Dr LOC had no right of action against the applicant .

On DATE PERSON appealed to ORG . On DATE ORG quashed the judgment of ORG and convicted the applicant , sentencing him to CARDINAL months’ imprisonment . ORG held that ORG had misinterpreted LAW . According to ORG , the correct meaning of that provision was that “ the cheque must have the necessary characteristics of a cheque as these are referred to in ORG Law ” , “ the complainant must be the legal bearer of the cheque ” and the trial court should not have examined the civil aspect of the agreement between the parties which led to the issue of the post - dated cheques .

Following that decision , ORG passed a retroactive amendment to LAW ) , which came into force on DATE . The amendment provided that Section CARDINAL(A ) did not apply to any cheques which were issued under an illegal transaction . Furthermore , it provided that the amending PERSON was to apply to all pending cases .

Since the applicant ’s case was still pending , as regards the imposition of sentence , the issue was raised before ORG on DATE . The applicant applied for a halt to the judgment , pursuant to LAW of LAW . On DATE ORG held that the amending law did not apply to the applicant ’s case .

The applicant served DATE of the sentence and was released after a pardon .

Section CARDINAL(A)CARDINAL of LAW provides that a person is guilty of a criminal offence carrying a sentence of imprisonment not DATE , if he draws a cheque , which on being presented to the issuing bank within a reasonable time from the date on which it becomes payable , it is not discharged owing to the lack of available funds of its drawer and the latter fails to discharge payment within DATE as from the time he acquires knowledge of that fact .

Section CARDINAL states that the provisions of Section CARDINAL(A)CARDINAL are not applicable with regard to any cheque on which no actionable right ensues against its drawer .

Section CARDINAL(CARDINAL ) of the Contract Law Cap.CARDINAL provides that “ an agreement made without consideration is void ... ” . In the case of Loizou v. ORG , judgment of DATE ) , the defendant raised before the first instance court the defence of LAW , claiming inter alia that the complainant had no right of action against him because the agreement under which the cheque was issued was made without consideration . The court examined the contract between the parties and decided that , on the facts of the case , consideration was given and therefore the contract between the parties was valid and enforceable , giving rise to a right of action . Consequently , the defence failed and the defendant was convicted . The same question was raised on appeal and ORG found that the first instance court examined this matter extensively and that it correctly concluded that consideration was given for the issuing of the relevant cheque . After referring to the facts relating to this matter ORG added the following : “ We also note that the relevant provision refers to an “ actionable right ” , and not to a good basis or arguable action . We are therefore of the view that the judgment of the first instance court is impeccable and the appeal against conviction is rejected ” .

Section CARDINAL of the Contract Law Cap.CARDINAL provides that “ if the parties to a contract agree to substitute a new contract for it or to rescind or alter it , the original contract need not be performed ” . In the case of ORG and ORG v. the Police ( ORG , judgment of DATE ) , the defendant claimed under LAW that the contract under which the cheque was issued had been rescinded and that the parties had entered into a new contract . He contended that since the cheque was issued under the first contract which was rendered unenforceable by virtue of the new one , no right of action existed against him under the former . ORG examined the first contract and , having found that it was indeed rescinded and replaced , upheld the defence under Section CARDINAL(A)CARDINAL and acquitted the defendant . No right of action existed under the first contract .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 13;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested by the police on suspicion of drug dealing . On the same date a sachet of poppy straw was seized from his pocket .

On DATE the applicant complained to ORG that he had been ill - treated during his arrest , in particular that he had been handcuffed , beaten and blinded with a dark knitted hat and that he had suffered abrasions on his hands , face and back as a result of having been ill - treated .

On DATE the ORG refused to institute criminal proceedings into the applicant ’s complaints , having found no appearance of criminal conduct on the part of the police officers .

On DATE the Prosecutors’ Office of the ARC revoked this decision and ordered a further inquiry . Having examined available evidence and questioned witnesses , on DATE ORG again refused to institute criminal proceedings for want of evidence of any ill - treatment . Based on the available materials , the applicant did not appeal against this decision .

On an unspecified date the applicant also complained to ORG that his detention had been unlawful . On DATE ORG dismissed this complaint , attaching weight to the fact that on DATE the lawfulness of the applicant ’s detention was verified by a judge within the statutory QUANTITY time - limit . On CARDINAL DATE ORG of the LOC upheld this decision .

On DATE criminal proceedings were instituted against the applicant on suspicion of drug dealing and following his arrest he was detained in a police station .

On DATE the applicant was brought before ORG , which allowed the investigator ’s request to continue his detention for DATE pending a determination of whether he should be charged . The court referred to the fact that the applicant was suspected of having committed a serious offence and that a sachet of poppy straw had been found on him .

On DATE the applicant was indicted for drug dealing .

On DATE ORG decided , in the applicant ’s presence , that he should be remanded in custody for DATE pending the outcome of the pre - trial investigation . By way of reasoning , the court cited Article CARDINAL of LAW and noted that the applicant might abscond , as he had been charged with a serious offence , and also that he might tamper with evidence . Moreover , the court noted that the applicant was alleged to have committed the offence while he had been subject to an undertaking not to abscond in connection with an investigation for another unspecified offence , which , at the material time , had been pending since DATE .

On DATE the applicant , represented by CARDINAL lawyers , appealed . He maintained , in particular , that he was a former policeman with a clean record and that he had never previously been convicted . Furthermore , he stated that he lived permanently in GPE , had a child , and suffered from chronic health conditions , in particular pyelonephritis . The applicant acknowledged that at the material time he had been subject to an undertaking not to abscond in connection with a different criminal investigation , but noted that he had never breached that undertaking since it had been put in place in DATE . On an unspecified date ORG held a hearing and dismissed the applicant ’s appeal . The applicant did not inform the ORG whether he had been present at that hearing .

On DATE ORG , having held a hearing in the applicant ’s presence , allowed the investigator ’s request to extend the applicant ’s detention until DATE . By way of reasoning , the court noted that the prosecution objectively needed more time to complete the investigation . The court further rejected the applicant ’s mother ’s proposal to pledge her apartment as bail for the applicant ’s release , referring to a risk that the applicant would reoffend given his previous conduct . Referring to a medical certificate , the court also dismissed the applicant ’s allegations that his state of health was incompatible with his continued detention .

The applicant appealed , requesting that he be transported to ORG for the hearing . He maintained that the case was not complex and that the failure of the investigative authorities to complete the investigation was only on account of a lack of diligence on their part . On DATE ORG of the LOC considered the matter in the presence of the applicant ’s advocate , but in the absence of the applicant himself , and upheld the previous decision .

In the meantime , on CARDINAL May CARDINAL ORG , having held a hearing in the applicant ’s presence , extended his detention until DATE on essentially the same grounds as before . It additionally noted that the investigation had not been completed on account of the applicant ’s own lack of cooperation . In particular , he had not agreed to confrontations taking place , his lawyer had been engaged in other activities on DATE , and on DATE he had also been examined by medical specialists . The applicant raised essentially the same arguments as stated above , and the court rejected them , referring to essentially the same reasons as it had previously . On DATE ORG of the LOC upheld the decision of CARDINAL May CARDINAL . The applicant did not inform the ORG whether he had been present at this hearing .

On DATE ORG , having held a hearing concerning the extension of the applicant ’s detention in his presence , authorised the extension until DATE based on the necessity to carry out additional investigative activities , in particular to consider a request by the applicant ’s lawyer to conduct another expert assessment . The applicant appealed , raising essentially the same arguments as before , and noting that since the investigation had almost been completed there was no risk that he would tamper with evidence or otherwise interfere with its effectiveness . On DATE ORG of the LOC upheld the decision of DATE . The applicant did not inform the ORG whether he had been present at this hearing .

In the meantime , on DATE ORG of the LOC considered , as a court of first instance , the investigator ’s request for an extension of the applicant ’s detention and authorised the extension until DATE . It found that the situation remained unchanged from the time of the previous review , that the applicant ’s detention was necessary to finish up the investigative activities , and that there was no reason to release the applicant . At the hearing the applicant himself was absent , but was represented by his advocate .

On DATE the case was transferred to the ORG inter - regional prosecutor for approval of the indictment . By DATE the case had been remitted to ORG for the commencement of trial proceedings . The applicant remained in custody , no new decision extending it having been taken .

On DATE ORG held a preliminary hearing and found that the case was ready for trial . The court ordered that the applicant remain in detention , without specifying any reasons .

DATE and DATE ORG considered the applicant ’s requests for his detention pending trial to be lifted on CARDINAL occasions , in each case doing so on DATE as the request was lodged . The court dismissed all of these requests as unsubstantiated .

On DATE the applicant was found guilty of drug dealing and abuse of office and sentenced to CARDINAL years’ imprisonment . On DATE and CARDINAL DATE ORG of the LOC and ORG , respectively , dismissed the applicant ’s appeals . The applicant did not present copies of the court decisions taken on the merits of his criminal case .

DATE the applicant was alternately held in FAC ( the “ ORG ” ) and CARDINAL other facilities .

According to the applicant , the cell in which he was most often held in FAC ( cell no . CARDINAL ) had measured QUANTITY and had been shared by him with CARDINAL other inmates . The cell had had no window . Sometimes a ventilator had been switched on , but the air it brought had come from other cells , including CARDINAL cells where detainees who were sick with tuberculosis had been held . An electric light had been switched on all the time , interfering with detainees’ ability to sleep . On the other hand , this light had been so dim that it had not been possible to read . The cell had had no furniture . Detainees had taken turns to sleep on CARDINAL bare mattresses and had put their food and personal belongings on the floor near them . The toilet had not been separated from the living area , and detainees had lacked privacy when using it . There had not been a sink and a tap had been situated QUANTITY above the toilet . The water from the tap had been used for drinking , washing and flushing the toilet . The food had been very poor . Specifically , detainees had been given a piece of bread with tea for breakfast and dinner , and a bowl of soup and a plate of porridge for lunch . The cell had been infested with insects . CARDINAL DATE the applicant had been detained in cell no . CARDINAL , where CARDINAL detainees had taken turns to sleep on CARDINAL bunk beds . Detainees had not been taken out for exercise and had not been able to take a shower . On numerous occasions the applicant had asked to see a doctor , but his requests had been refused on account of a lack of funds .

The Government acknowledged that cell no . CARDINAL had not had a window or beds . They noted , however , that it had had wooden planks on which the detainees could sleep , a toilet and ventilation . They further noted that cell no . CARDINAL had been equipped with CARDINAL bunk beds . The Government further submitted that the applicant had not been able to take a shower CARDINAL and DATE and DATE in view of his medical condition . For the same reason he had not always been taken outside for walks . The Government additionally noted that the applicant had been given sufficient access to medical services and that during the period at issue he had been visited by a doctor CARDINAL times .

On DATE the applicant was diagnosed with pneumonia and placed on in - patient treatment in the Simferopol SIZO hospital for a period of about one month . Upon his return to the ORG , on CARDINAL and CARDINAL DATE respectively the applicant was examined by doctors , diagnosed with chronic prostatitis and scabies and prescribed an unspecified treatment .

On DATE the applicant was found to need in - patient treatment for scabies , as the previous ORG recommendations had not been followed .

On DATE the applicant was hospitalised in the ORG hospital and was treated until DATE . According to the applicant , in the hospital he had stayed in a room with barred windows located on the fifth floor which had been guarded by CARDINAL policemen , and he had been handcuffed to his bed at all times . He presented a photo of himself being handcuffed to a bed in support of his allegations .

On DATE the Head of ORG conducted an internal investigation following the applicant ’s complaints about the conditions of his detention . He noted , in particular , that as of the date of his placement in FAC ( DATE ) , the ORG had been overpopulated by CARDINAL of its capacity . He further noted that cell no . CARDINAL , in which the applicant had been held at that time , had not been equipped with beds but had had wooden planks and a shelf for personal belongings , that the detainees had been provided with mattresses and linen , that the cell had been well ventilated , and that it had offered sufficient artificial light . He further noted that during the period of his stay in the ORG the applicant had twice taken a shower .

According to the applicant , DATE he lost QUANTITY in weight altogether .

On DATE the applicant lodged a civil action with ORG complaining about the conditions of his detention in FAC and seeking moral damages .

On DATE the applicant was given a time - limit to rectify the procedural shortcomings of his submissions , in particular , to present evidence in support of his allegations , grounds for releasing him from the need to present such evidence , to specify , what were the unlawful actions or omissions of the ORG authorities causing him damage and to present his calculations for the amount of damage claimed .

On DATE the court decided to leave the applicant ’s claim without consideration on the basis that he had not rectified the procedural shortcomings of his submissions .

The relevant provisions of LAW can be found in the judgment in the case of GPE v. GPE , no . CARDINAL , § DATE , CARDINAL DATE .

The relevant provisions of LAW GPE of DATE can be found in the judgments in the cases of GPE v. GPE , no . CARDINAL , § DATE , DATE ( insofar as it refers to ORG CARDINAL , CARDINAL , CARDINAL and CARDINAL ) ; PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE and PERSON GPE , no . CARDINAL/CARDINAL ( Sect . CARDINAL ) ( PERSON ) .


The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant brought an action against a limited liability company before GPE , requesting the court to order the respondent to pay him fee for using his real estate .

ORG suspended the proceedings on CARDINAL occasions for DATE , pending the outcome of separate legal disputes related to the ownership of the real estate . The applicant ’s requests to have the proceedings resumed were dismissed .

On DATE ORG delivered judgment , finding partly for the applicant . In the absence of appeals , the judgment became final on DATE .


CASE OF OLAECHEA CAHUAS v. SPAIN [Extracts]

No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE and currently lives in GPE .

On DATE the applicant , a suspected member of ORG ( PERSON ) organisation , a terrorist group founded in DATE whose aim is to transform GPE ’s political system by armed force into a NORP proletarian regime , was arrested in GPE ( GPE ) under an international arrest warrant issued by the NORP authorities , following a routine police check of the lists of guests registered at hotels in that province . The applicant was taken into custody pending a ruling on his extradition .

In a decision of DATE central investigating judge no . CARDINAL of the Audiencia Nacional asked the applicant for his views on the extradition , in keeping with LAW of DATE between GPE and GPE .

On DATE the extradition hearing requested by central investigating judge no . CARDINAL was held . The applicant agreed to the “ simplified extradition ” procedure ( immediate return to the requesting country ) and the application of the “ special ” rule ( under which he could be tried only in respect of the offence for which extradition was requested ) . The extradition request was based on a terrorist offence .

At the hearing of DATE the applicant declared that although he had agreed to simplified extradition , ORG were required to guarantee his personal safety , his life , his health and his well - being , in conformity with the standards laid down in international conventions on detention conditions and a fair trial in a reasonable time , as he considered the charges against him unfounded . The NORP press having launched a campaign against him – which he considered warranted special protection measures – he also asked for guarantees that he would have access to the press .

The preliminary hearing provided for in LAW was also held on DATE , following which the applicant was detained with a view to his extradition .

NORP In a decision of DATE the examining judge , noting that the applicant had agreed to his extradition and that his requests had been granted at the hearing , called for the application of the measures provided for in LAW of the bilateral treaty between GPE and GPE and stated that in such cases it was for GPE , through its ORG , to obtain the guarantees provided for in that provision from the NORP authorities . The extradition would be conditional on the official communication of those guarantees by the ministry , to enable the examining judge to reach a decision in the extradition proceedings .

On DATE the applicant appealed against the decision of CARDINAL DATE ordering his detention . The appeal was dismissed on DATE . On DATE the applicant filed an appeal against that ruling .

In a decision of DATE the Audiencia Nacional authorised the the applicant ’s extradition for trial by the NORP judicial authorities on the charge of terrorism . It stressed the content of the diplomatic note from ORG , which read as follows :

“ Concerning the guarantee that the accused will not be subjected to punishment causing physical harm , or to inhuman or degrading treatment , we would remind the NORP authorities that as GPE is party to ORG , ORG and Punish Torture , and LAW , the person concerned will enjoy sufficient guarantees under a treaty based on respect for human dignity , as well as the guarantees of physical , psychological and moral integrity enshrined in the main human rights protection instruments .

Article CARDINAL of the NORP LAW provides : “ The death penalty may be applied only for the crime of treason to the country in time of war , and for acts of terrorism ... According to Legislative Decrees no . DATE and no . CARDINAL , the acts of terrorism with which the accused , ORG , is charged are not punishable by death .

NORP However , the crime of terrorism referred to in LAW no . DATE is punishable by life imprisonment . In order to facilitate the extradition in accordance with LAW of the extradition treaty , it is guaranteed that even if the accused is found guilty in a fair trial , he will not be sentenced to life imprisonment but to the sentence immediately below that .

A fair trial is likewise guaranteed under the judicial safeguards enshrined in the LAW , international human rights instruments and domestic law . ”

In the aforementioned decision of DATE the examining judge requested that the NORP ORG and ORG be informed of the extradition measure and stated that the agreement of ORG was not needed for the extradition .

On DATE the applicant lodged an appeal to have the decision of DATE overturned and the ordinary extradition procedure applied , under which ORG would decide on his extradition .

In an order of CARDINAL DATE the investigating judge dismissed the appeal . He reminded the applicant that he had agreed to the simplified extradition procedure and that that decision was irrevocable .

On DATE the applicant requested the application of the measures provided for in Rule CARDINAL of ORG , to have his extradition to GPE suspended . He relied on Articles CARDINAL , CARDINAL and CARDINAL of the Convention .

On DATE the Vice - President of FAC decided to apply Rule CARDINAL of ORG and invited the NORP Government not to extradite the applicant before the ORG had examined the case at its meeting of CARDINAL DATE . ORG and ORG to ORG were informed of that decision by telephone at TIME , with subsequent confirmation by fax .

On DATE the NORP Government sent the ORG a decision of investigating judge no . CARDINAL of FAC , to whom the ORG ’s request concerning the temporary suspension of the extradition had been transmitted . In it the judge rejected the request for the application of Rule CARDINAL for the following reasons :

“ The applicant agreed to the extradition of his own free will , being fully aware of the consequences . That being so , the decision ordering his extradition is final and no appeal lies against it .

Furthermore , the NORP authorities have provided the guarantees requested by the NORP courts . Finally , the applicant applied to ORG without exhausting the remedies available to him in NORP law . ”

On DATE the applicant was extradited to GPE , where he was incarcerated .

On DATE the ORG asked the NORP Government , in accordance with Rule CARDINAL § CARDINAL of ORG , what steps had been taken to ensure the application of the interim measure indicated .

Having received no reply from ORG , on DATE the ORG communicated the application under LAW , DATE and DATE of the Convention .

NORP In DATE the applicant was granted conditional release by the NORP anti - terrorism authorities for lack of sufficient evidence that he was a member of ORG . The applicant ’s freedom was restricted by an order prohibiting him from leaving GPE and GPE or changing his place of residence without the authorisation of a judge , and obliging him to report to the judge once DATE . The decision of the anti - terrorism authorities also indicated that as the criminal charges against the applicant were maintained , the proceedings against him remained open pending new developments in the investigation .

NORP In DATE the NORP authorities asked the NORP authorities to extend the extradition charges so that the applicant could be tried in GPE for financing the ORG terrorist group from abroad . Following that request a hearing before the Audiencia Nacional was scheduled for DATE .

On DATE the applicant once again asked the ORG to apply Rule CARDINAL and ask the NORP Government to suspend the hearing until it had ruled on his application .

On DATE the Fourth Section of the ORG considered that the circumstances underlying the applicant ’s request were not of the kind to which , in the ORG ’s practice , Rule CARDINAL was applied . The request was accordingly dismissed .

The hearing went ahead as planned and , by a decision of DATE , the Audiencia Nacional allowed the requested extension . The applicant lodged an amparo appeal against that judgment which is still pending before ORG .

Following the judgment handed down by ORG on DATE in the case of PERSON and PERSON v. GPE ( [ ORG ] , ORG . CARDINAL and CARDINAL , ORG CARDINAL-I ) , the applicant requested permission to submit additional pleadings to the ORG . The ORG agreed and the Government were informed . In DATE the parties submitted their observations .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a prison sentence at the Prison in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the applicant was arrested on suspicion of trafficking in drugs and counterfeit GPE dollars while leading an organised criminal group .

Later , several other members of the same criminal group were detained and charged in connection with the investigation of the applicant ’s activities . The investigation was conducted by ORG of ORG .

On DATE the ORG remanded the applicant in custody , relying on the reasonable suspicion that he had committed the offences in question . It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings , given the risk that he might tamper with evidence , go into hiding or induce witnesses to give false testimony . The court also stressed the severity of the anticipated sentence .

An appeal by the applicant against the detention order was dismissed on DATE by ORG . Subsequent appeals against decisions extending his detention were all unsuccessful . In his appeals he argued that the charges against him were based on unreliable and contradictory evidence . He further pleaded not guilty .

On DATE the applicant began serving a CARDINAL - year prison sentence , given by ORG in a different set of criminal proceedings .

In the course of the investigation , the applicant ’s detention was extended on several occasions , inter alia on DATE and DATE and CARDINAL DATE and DATE by ORG , DATE and DATE , CARDINAL May and DATE , DATE , CARDINAL DATE and DATE , and DATE , DATE and DATE by ORG .

On DATE , on a decision by ORG the applicant ’s detention was further extended until DATE .

In all their detention decisions the authorities repeatedly relied on the original grounds given for the applicant ’s detention . They considered that the need to secure the proper conduct of the proceedings , in particular the need to verify evidence from CARDINAL suspects and CARDINAL witnesses and to have them all confronted justified holding him in custody . They further stressed the extensive body of evidence to be considered in the case and the need to obtain opinions from several experts , including those with expertise in toxicology and chemistry .

On DATE ORG decided to lodge a request with ORG to have the applicant ’s detention further extended until DATE .

On DATE ORG lodged a bill of indictment with ORG . The bill of indictment comprised numerous charges of trafficking in drugs and other illicit substances and counterfeit GPE dollars brought against several defendants , who were all acting in an organised criminal group . The maximum anticipated prison sentence against the applicant was DATE .

On DATE ORG delivered a judgment . The applicant was found guilty as charged and sentenced to DATE imprisonment . He appealed . At present the appeal proceedings are pending .

The relevant domestic law and practice concerning the imposition of detention during judicial proceedings ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged a civil action ( no . CARDINAL ) before ORG of GPE concerning the payment of the remainder of the price agreed under the contract of sale of his enterprise in GPE . The total claim was CARDINAL NORP ( ORG ) , which was the equivalent of QUANTITY ( ORG ) at the relevant time .

Between the above date and CARDINAL DATE the ORG dealt with the submission of the parties’ pleadings and several applications for their amendment , for the purposes of which a number of adjournments or requests for extensions took place . CARDINAL adjournments took place in this period , CARDINAL at the applicant ’s request , CARDINAL at the defendant ’s request and CARDINAL by the court itself .

On DATE the case was adjourned until DATE on the parties’ request . The hearing of the case commenced on that date and was fixed to continue on DATE but following an adjournment requested by the applicant it was fixed for CARDINAL DATE . On DATE the defendant raised an objection challenging the jurisdiction of ORG since the contract between the parties had been concluded in GPE . The court fixed the hearing in respect of the objection for CARDINAL DATE . Following CARDINAL adjournments at the defendant ’s request the hearing took place on DATE .

On DATE the court dismissed the defendant ’s objection pertaining to its jurisdiction and fixed the hearing for DATE .

On DATE an appeal ( no . CARDINAL ) was filed against the district court ’s ruling of CARDINAL DATE , concerning its jurisdiction to try the case . Consequently , the case was taken off the trial list pending the result of the appeal .

On DATE the defendant was served with a notice by the Registrar of ORG requesting him to pay the due fee for the preparation of the record of the first instance proceedings . The court ’s record was sent by ORG to ORG on DATE .

On DATE the parties were notified by the Chief Registrar of ORG that the appeal was fixed for hearing on DATE . On that date however the case was adjourned to enable the applicant to file a cross - appeal .

On DATE ORG found that ORG had jurisdiction to try the action and dismissed the appeal .

On DATE the applicant applied for a date of mention concerning the continuation of the proceedings and the case was fixed for this purpose for DATE . On that date it was fixed to be heard on DATE .

Between the above date and DATE the case was adjourned several times . CARDINAL of these adjournments were at the applicant ’s request , CARDINAL at the parties’ request and CARDINAL at the defendant ’s .

On DATE the ORG reserved its judgment . This was delivered on DATE dismissing the applicant ’s action .

On DATE the applicant filed an appeal ( appeal no . CARDINAL ) against the first instance judgment .

The notice of the appeal was sent by the Registrar of ORG on DATE to ORG indicating that the file of the case had been given for the purposes of typing the record of the proceedings and that this would be available in DATE due to the excessive volume of work . The record was necessary in order for the appeal to be fixed for hearing . On DATE the applicant paid the fee due for the court ’s record .

On DATE the Chief Registrar notified the parties that the appeal was fixed for directions for DATE . On that date the parties were instructed to file their outline addresses .

On DATE the Chief Registrar sent a notice to the parties informing them that the appeal was fixed for hearing on DATE . On that date the parties’ addresses were heard and judgment was reserved .

On DATE the Chief Registrar of ORG informed the parties that due to the resignation of one of the presiding judges , the appeal had to be retried . Following CARDINAL adjournments on the basis of the respondent ’s request , the parties’ addresses were heard on DATE and judgment was reserved .

On DATE ORG delivered its judgment setting aside the first instance decision and ordering a retrial . The costs of both the first instance trial and the appeal were awarded in favour of the applicant . The parties were then notified that the case file had been returned to ORG on DATE and they were requested to file an application to that court for the case to be fixed .

On DATE the applicant applied to the Registrar of the ORG requesting that the case be fixed for retrial .

On DATE an application was lodged by the applicant requesting that the case be fixed for directions . In the relevant court records of DATE , the court stated that the case should be given priority and that the PERSON should inform the court why the case was not put before it on DATE when the applicant had applied for the case to be fixed . In the relevant court records of DATE , the PERSON noted that the file of the case had been returned to ORG for the assessment of costs which took place on DATE and that it was not known why the case had not been put before a judge . However , the PERSON pointed out that the applicant ’s lawyers had not pursued the application for DATE .

The case was then fixed for CARDINAL and DATE but following an adjournment at the defendant ’s request it was postponed until DATE . On DATE the case was settled between the parties with a decision in the applicant ’s favour for the amount of ORG DATE plus the costs and expenses that had been awarded by ORG .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

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

ORG ( “ the Government ” ) were represented by their Agent , Mrs I. Reine .

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

In DATE the applicant was arrested on suspicion of having committed an offence . On DATE the ORG found the applicant guilty of robbery with aggravating circumstances and sentenced him to DATE and DATE imprisonment . The judgment became final in DATE .

DATE to DATE the applicant was in FAC , and from DATE to CARDINAL DATE and DATE to DATE he served his sentence in FAC . He brought numerous complaints before various ORG authorities . In particular , he complained that from CARDINAL to DATE and from CARDINAL to DATE his anti - tuberculosis treatment had been interrupted .

In the same letter he also complained that he had been denied a referral for CARDINAL particular medical tests , including a head computed tomography ( GPE ) an electroencephalograph ( ORG ) , which he had requested in DATE and an oscillography , which he had requested in DATE . The applicant alleged that the tests were indispensable in order to establish his mental - health problems .

On DATE ORG replied that the state of the applicant ’s mental health had been regularly examined by a psychiatrist in prison , and that ORG ( “ the MADEKKI ” ) had examined the quality of the medical assistance at the place of the applicant ’s detention CARDINAL times without establishing any violation in this respect . The applicant was also informed that , according to information provided by ORG and the PERSON , he did not have medical symptoms which would necessitate the tests he had requested .

NORP In DATE the applicant complained to ORG about the quality of food and water and the size of bed linen in FAC . On DATE ORG dismissed the complaints .

NORP In that letter the applicant also mentioned that in FAC prisoners suffering from tuberculosis had been subjected to solitary confinement where they could not receive bed linen or adequate clothes . ORG informed the applicant that , in accordance with section CARDINAL(CARDINAL ) of LAW , detainees were not provided with bed linen in the isolation wards and could not take exercise .

The Government relied on the report of CARDINAL DATE which the head of ORG had sent to ORG stating that from DATE the applicant had had CARDINAL consultations with the prison psychiatrist and CARDINAL consultations with the prison doctor . The applicant was diagnosed as suffering from neurosis .

According to a report ( without a date ) drawn up by the head of the tuberculosis unit of ORG , the applicant had begun serving his sentence in FAC on DATE . On DATE he fell ill and on DATE he had an X - ray examination following which , on DATE , he was transferred to the tuberculosis unit of ORG in GPE for further tests and treatment . On DATE the final diagnosis confirmed that the applicant had contracted tuberculosis , and from DATE to DATE he received anti - tuberculosis treatment , in accordance with the guidelines set by ORG ( “ the WHO ” ) . Afterwards he was transferred to the tuberculosis unit in ORG where he continued receiving adequate treatment until DATE . According to the results of the medical examinations of CARDINAL June and DATE , the applicant showed no signs of tuberculosis ; he nevertheless remained under the supervision of GPE specialists until DATE .

The above report mentioned that , according to the guidelines set by the ORG , only an interruption of DATE could be considered as a suspension of treatment for tuberculosis .

In a letter of CARDINAL DATE ORG , at ORG request , supplied the information that in FAC TB patients were detained separately from the others in a unit which had been refurbished in DATE and had all the necessary facilities including showers , a gym and an area for outdoor activities , and that the applicant was provided with bed linen . The number of inmates per cell did not exceed CARDINAL to CARDINAL .

NORP The letter also stated that , on account of insufficient funds , the prison had been unable to provide detainees with the statutory hygienic products until DATE .

At ORG request , on DATE the PERSON sent its conclusions on the medical assistance provided to the applicant in prisons in GPE . It stated that during the inspections carried out in DATE the inspectors had discovered that the medical unit of ORG and FAC had not obtained the certification envisaged by LAW CARDINAL of DATE . It further stated that the medical unit of ORG had received the certificate in DATE and that in DATE the ORG had noted various improvements in the functioning of the Prison hospital .

The PERSON further explained that the CARDINAL head examinations requested by the applicant were not normally carried out in diagnosing mental illness or behaviour or neurotic disorders .

According to the extracts from the applicant ’s medical history , the applicant sustained head injuries in DATE and DATE . In DATE and DATE he was diagnosed as suffering from neurosis . In CARDINAL it was recommended that he study from home on account of his nervous disposition .

On DATE the applicant underwent a forensic medical examination . It concluded that the applicant did not suffer from mental illness . The experts found that the applicant had organic personality and behaviour disorder and an addiction to alcohol , and that he would be able to receive adequate medical treatment in prison .

According to a medical report of CARDINAL DATE , issued by a practitioner from the applicant ’s former place of residence , the applicant was diagnosed as suffering from encephalopathy of a post - traumatic or toxic kind . No recommendation as to further medical treatment had been noted .

On DATE , at the applicant ’s request , he was transferred to ORG . According to the medical report of DATE , drawn up by the head of the hospital , the applicant was diagnosed as suffering from mixed - type encephalopathy ; he did not have medical symptoms which would necessitate carrying out the particular examinations he had requested .

On DATE an official from ORG informed the applicant that in order to determine his fitness for work he should have a consultation with a neurologist .

In response to a request from the applicant of DATE , in a letter of CARDINAL DATE a private company offered to pay the cost of the examinations prescribed by his neurologist in the sum of ORG CARDINAL ( EUR CARDINAL ) .

On DATE the applicant had a consultation with a neurologist in a civil hospital . He was diagnosed as suffering from post - traumatic and toxic encephalopathy . He was advised to undergo an ORG , a dopplerography and an echocardiogram and to have a consultation with a psychiatrist . The medical records show that on DATE the applicant underwent an ORG and a dopplerography in a civil hospital . There is no information as to the results of the tests .

NORP In response to the applicant ’s enquiries , on DATE the PERSON concluded that the quality of the anti - tuberculosis treatment which the applicant had received from CARDINAL DATE until DATE in ORG had been adequate . It also stated that the applicant had received vitamins and specially enriched nutrition during the treatment and that the latest examinations showed that the applicant ’s health condition had significantly improved . It also established that in DATE the applicant had been repeatedly examined by a prison doctor in FAC and had received appropriate medication .

NORP In response to the applicant ’s complaint that he had been denied specific head examinations , on DATE the PERSON informed him that the medical examinations he had requested would be carried out if additional financial resources were allocated to ORG and if the doctor recommended that he undergo the examinations . He was informed that , according to ORG ( see paragraph CARDINAL below ) , he could have the examinations at his own expense .

NORP In response to a letter from the applicant of CARDINAL DATE , in which he complained about the interruption of his anti - tuberculosis treatment , ORG of Tuberculosis and PERSON explained on DATE that the anti - tuberculosis treatment had to be supplied regularly and that frequent interruptions might have an impact on the effects of the treatment , especially if the patient received PERCENT of the prescribed treatment . It also noted that in the applicant ’s case the interruption of DATE would not imperil his health .

Pursuant to section CARDINAL , convicted persons shall receive the minimum free ORG - granted health care in the amount established by ORG . In addition , ORG , within its budgetary means , shall provide convicts with the following health - care services : primary , secondary and ( partial ) tertiary medical assistance ; urgent dental care ; examinations of their health condition ; preventive care ; medical treatment and injections prescribed by a doctor ; and medical equipment .

Pursuant to LAW , the medical examinations which are necessary for ORG and Working Capability to adopt an initial decision shall be financed from the ORG budget .

Section CARDINAL provides that , upon the request of a detainee , the administration of the penitentiary institution may agree with the administration of a civil medical institution on consultation and treatment at the detainee ’s expense .


Remainder inadmissible;No violation of Art. 6-1;No violation of P1-1

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in DATE and lives in ORG . He is retired .

On DATE he lodged a criminal complaint against ORG , claiming that she had stolen certain items from his flat . He stated that ORG regularly came to his flat to clean it and that on DATE she had removed several items of jewellery and clothing from his flat . He had only realised in DATE that those items had disappeared from his flat .

The case was heard by ORG , which delivered its first - instance judgment on DATE finding ORG guilty and sentencing her to CARDINAL months’ imprisonment , suspended . ORG was ordered to pay the applicant damages of MONEY ( ROL – MONEY ( ORG ) at the time ) , representing the estimated value of the stolen items , and ORG ( approximately EUR CARDINAL ) in legal fees . ORG based its decision on the statements of the parties and of CARDINAL witnesses . According to CARDINAL of the witnesses , the applicant had complained to him in DATE that several items were missing from his flat . According to the second witness , in DATE the defendant had shown him several items of jewellery and clothing , mentioning that she had received them as a gift from the applicant .

On DATE ORG dismissed an appeal by ORG and the judgment of DATE thus became final and enforceable .

On an unspecified date the Prosecutor General of GPE lodged an extraordinary appeal ( recurs in anulare ) against the judgment of DATE . ORG argued that ORG had been wrongfully convicted , as none of the evidence adduced was conclusive as to her guilt . This had led to a breach of her right to be presumed innocent until proved guilty . The prosecutor also indicated that ORG had submitted CARDINAL pieces of evidence as part of her defence which had been ignored in the ordinary proceedings . CARDINAL of the documents was a request lodged by the applicant to the ORG association in which he sought an exemption from utility costs for DATE , when he would be away in GPE . This document was relevant , as the applicant stated that ORG entered his flat only when he was there and he had declared that the items had been stolen on the exact date of DATE , when , according to that document , he was not in GPE . The second document was a report of a search conducted by the police at the home of the defendant , which indicated that none of the items claimed to have been stolen from the applicant ’s flat had been found there .

In a decision of CARDINAL DATE ORG and ORG allowed the extraordinary appeal , quashed the judgments of CARDINAL DATE and DATE , acquitted ORG and relieved her of the obligation to pay the applicant compensation for the stolen items and the legal costs .

The court held that the prior conviction had been based on the statements of CARDINAL witnesses who declared that they knew that ORG was doing housework for the applicant , that he owned the items mentioned in his criminal complaint and that after DATE some of the items were seen by CARDINAL of the witnesses in the house of ORG Nevertheless , the court indicated that these statements were contradicted by the evidence in the case file indicating that the applicant had been away from GPE DATE and DATE . Furthermore , taking into account that he had always stated that ORG only did housework in his flat when he was there , the court indicated that his submission that he had not noticed ORG leaving the flat with so many items was not credible .

The court further concluded that the evidence adduced in the case was both contradictory and inconclusive in respect of the date the alleged theft was committed and of whether the defendant had committed the theft . It therefore quashed the earlier decisions on the ground that they had not been lawful and acquitted ORG of all charges , relieving her also of the obligation to pay compensation for the stolen items and for the court costs incurred by the applicant .

NORP The applicant attended the hearing and submitted his arguments in support of his claims .

For a summary of the relevant domestic - law provisions concerning this type of extraordinary appeal ( recurs in anulare ) see the judgment in the case of PERSON v. GPE ( no . CARDINAL , § CARDINAL , CARDINAL DATE ) .


The applicant is an NORP citizen , born in DATE and living in GPE . He is the father of PERSON .

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

On DATE PERSON was killed in a terrorist bombing in GPE . The cars used for the bombing were stolen in GPE in GPE on DATE .

The NORP authorities conducted extensive inquiries but were unable to bring charges against any person . The files remain open . ORG ( ORG ) in GPE has conducted an inquiry into the theft of the vehicle and related offences which did not produce any results . However , there was no formal murder inquiry by the ORG .

On DATE ORG , a television station in GPE , broadcast a programme in which the adequacy of the ORG inquiry was discussed .


WOLFHARD KOOP-AUTOMATEN GOLDENE 7 GmbH & Co. KG v. GERMANY

The applicant company is a limited liability company under NORP law with its registered office in PERSON . It has for its object the installation and operation of gambling machines in restaurants in GPE .

It is represented before the ORG by Mr PERSON , a public law professor at ORG .

A.

In DATE the applicant company filed a declaration in respect of entertainment tax ( PERSON ) for DATE of DATE regarding CARDINAL gambling machines installed and operated in the area of GPE and estimated the tax due at MONEY ( DM ) , on the basis of a prescribed global tax rate of DM CARDINAL per month and per machine , irrespective of the effective returns generated by that machine . At the same time , it lodged an administrative appeal against the tax assessment to the extent that it exceeded DM CARDINAL , i. e. DM CARDINAL for each machine . GPE dismissed the appeal .

Thereupon the applicant company instituted proceedings with ORG ( Verwaltungsgericht ) , arguing that the Eutin Statute on entertainment tax for gambling machines ( ORG über die Erhebung einer Vergnügungssteuer für das PERSON Spiel- und ORG - “ Statute on entertainment tax ” ) was void because it lacked a proper legal basis . ORG dismissed the action on DATE .

On DATE ORG ( Oberverwaltungsgericht ) dismissed the applicant company ’s appeal .

ORG , in detailed reasoning based on the case - law of ORG ( Bundesverfassungsgericht ) and ORG ) , found that the tax assessments were lawful . In particular the underlying Statute on entertainment tax had a sufficient legal basis in section MONEY ) of ORG ) , which could not be objected to from a constitutional point of view . In this respect , the court , referring to the relevant provision of LAW ) , considered that the Land was competent to enact legislation concerning local excise and luxury taxes ( Verbrauch- und Aufwandsteuern ) unless such matters were covered by federal legislation . The entertainment tax in question constituted a local luxury tax within the meaning of this provision which was not similar to any taxes regulated by federal legislation . Moreover , in the court ’s view , section CARDINAL(CARDINAL ) of LAW was sufficiently precise , even if in some cases the term “ gambling machines ” might necessitate interpretation . Furthermore , the fact that section CARDINAL(CARDINAL ) of LAW only authorised levying entertainment tax with regard to gambling machines did not amount to discrimination . The court , referring to the discretionary powers of the legislator in tax matters , found no indication of arbitrariness in the impugned taxation and the related procedural matters . It found in particular that the taxation was based on the increasing number of gambling establishments in the municipalities and the problems resulting therefrom . The tax did not , therefore , merely serve the purpose of constituting a municipal source of revenue , but also that of opposing the expansion of gambling establishments .

Finally , in the court ’s view , the tax rates fixed in the Eutin Statute on entertainment tax did not exceed the statutory limits . Having regard to the relevant case - law , the court observed that tax rates were only permissible to the extent that taxes were eventually financed by the users of the gambling machines , whereas , for the persons installing and operating the machines , the tax was to be regarded as no more than a transitory item . There was no indication that the rate of the entertainment tax in question was such as to leave the gambling machine business without any income . Moreover , the applicant company had failed to show that , in the specific case , the business was unprofitable on account of the tax levied . As regards the applicant company ’s further arguments , the court considered inter alia that the defendant municipality was not prevented from fixing global tax rates , irrespective of the returns of individual machines and of whether they were installed and operated in a gambling establishment , in a restaurant or in a similar establishments . The exemptions for machines without any prospect of winning or for particular machines used in fairs could not be regarded as unreasonable .

On DATE ORG dismissed the applicant company ’s request for leave to appeal on points of law . It found that the case raised no issue of fundamental importance and that the findings of ORG were in line with both the case - law of ORG and its own . Moreover , taking into account the global assessment of the tax in question , the latter could not be regarded as turn - over tax , and there had , therefore , been no reason to refer the case to ORG on a question of community law concerning turnover - tax .

On DATE ORG refused to entertain the appeal brought by the applicant company and similar appeals which had been joined to it . It found that the appeals were of no fundamental importance as the questions raised were already settled by the court ’s case - law . Furthermore , they had no prospect of success . In this respect , ORG observed that the taxes in question only indirectly affected the ORG freedom to exercise their profession . Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ( CARDINAL ) of LAW expressly mentioned local excise and luxury taxation . ORG confirmed that section CARDINAL(CARDINAL ) of ORG inter alia was sufficiently precise . The concept of “ local excise and luxury taxes ” had been clarified in its case - law . Moreover , section CARDINAL(CARDINAL ) of ORG specifically limited the municipal power of taxation to a specific entertainment tax . Furthermore , the traditional local excise and luxury taxes , such as the entertainment tax , could not be regarded as similar to a federal tax . The prohibition on levying similar taxes found in federal legislation ( Article CARDINAL § CARDINAL of LAW ) did not , therefore , apply here . ORG further considered that GPE had not exceeded its powers by emphasizing the regulatory aspect of the entertainment tax rather than its function as a source of municipal revenue . The lower courts had correctly held that the taxation did not amount to an unreasonable burden and did not render the business concerned unprofitable . Finally , according to ORG , ORG had not been obliged to refer the case to ORG as the relevant issues were settled in the latter ’s case - law .

B. Relevant domestic law

Article CARDINAL of the NORP LAW regulates legislative competences in tax matters . Article CARDINAL § § CARDINAL and CARDINAL concern the exclusive and concurrent competences of the Federation . Paragraph CARDINAL provides that the ORG shall have legislative competence in respect of local excise and luxury taxes as long and in so far as they are not identical with taxes imposed by federal legislation . Article CARDINAL , which concerns the apportionment of tax revenues , stipulates inter alia , in its paragraph CARDINAL , first sentence , that revenue from local excise and luxury taxes shall accrue to the municipalities .

According to section CARDINAL ) of ORG , as amended , municipalities are authorised to levy an entertainment tax on gambling machines unless such machines are installed in places subjected to the casino tax ( Spielbankabgabe ) .