András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

NORP The relevant

On DATE the applicant left his car in a repair shop , in order to have it mended . The mechanic , employed by the said shop , subsequently caused a traffic accident while driving the applicant ’s vehicle .

On DATE the applicant therefore filed a claim with ORG ( PERSON ) in GPE , seeking compensation for the pecuniary damage suffered .

On DATE ORG adopted a partial judgment ( delimična presuda ) in the applicant ’s favour . This judgment subsequently became final .

On DATE ORG : ( i ) ruled against the applicant as regards the remainder of his claim ; ( ii ) ordered him to pay the related litigation costs ; and ( iii ) ordered CARDINAL of the CARDINAL respondents to cover the applicant ’s own litigation costs associated with the partial judgment of DATE .

On DATE ORG ( Okružni sud ) in PERSON quashed this judgment ’s rulings under points ( i ) and ( ii ) , but upheld its order under point ( iii ) .

On DATE ORG ruled partly in favour of the applicant .

On DATE ORG quashed this judgment on appeal .

On DATE ORG again ruled partly in favour of the applicant . In so doing , it ordered the respondents to pay jointly : ( i ) MONEY ( “ ORG ” ) in damages , plus statutory interest as of DATE ; and ( ii ) ORG CARDINAL,CARDINAL.CARDINAL for the litigation costs incurred ( i.e. at the time a total of MONEY , “ ORG ” , plus statutory interest ) .

On DATE ORG ( PERSON ) in PERSON , now acting as the competent court of second instance , upheld this judgment on appeal and it thereby became final . There is nothing in the case file that would suggest that the sums awarded to the applicant have not been paid , and the applicant personally has not raised any objections in this respect .

On DATE the applicant lodged an appeal with ORG ( Ustavni sud ) , complaining about the length of the above civil suit .

On DATE ORG held that the applicant had indeed suffered a breach of his “ right to a trial within a reasonable time ” , and ordered the competent courts to bring the impugned proceedings to a conclusion as soon as possible . The court , additionally , declared that the applicant was entitled to the non - pecuniary damages sought , in accordance with LAW ( see paragraph CARDINAL below ) .

The applicant seems not to have been served with this decision until DATE .

NORP In DATE the applicant ’s lawyer filed a request with ORG . In so doing , he relied on ORG decision , and sought ORG in compensation ( see paragraph CARDINAL , Articles CARDINAL and CARDINAL , below ) .

On DATE the applicant ’s lawyer filed another submission with ORG , specifying that he had made a mistake in his earlier request . The actual amount requested was instead ORG ( at the time approximately ORG CARDINAL,CARDINAL ) .

On DATE the applicant personally claimed a total of ORG CARDINAL ( at the time approximately ORG CARDINAL,CARDINAL ) on account of the pecuniary and non - pecuniary damage suffered , but offered , simultaneously , to settle for the said ORG .

In DATE the applicant filed a claim with ORG ( PERSON ) in Požega , specifically its ORG ( ORG jedinica ) in GPE , noting that he had received no response from ORG which was why he was entitled to bring a separate civil suit in this respect ( see paragraph DATE , below ) . The applicant sought RSD CARDINAL ( at the time approximately EUR CARDINAL,CARDINAL ) for the non - pecuniary damage sustained , plus statutory interest .

On DATE ORG offered to pay the applicant the sum of RSD CARDINAL ( at the time approximately EUR CARDINAL ) for the non - pecuniary damage referred to in the ORG decision .

According to the information contained in the case - file , the applicant refused to accept this amount , deeming it insufficient . The applicant further maintained that ORG had not considered his request earlier since it had apparently experienced some staffing issues .

Article CARDINAL § CARDINAL provides , inter alia , that everyone shall have the right to a fair hearing before a tribunal in the determination of his rights and obligations .

Article CARDINAL provides that a “ constitutional appeal may be lodged against individual decisions or actions of ORG bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by LAW , if other legal remedies for their protection have already been exhausted or have not been prescribed . ”

The relevant provisions of this LAW read as follows :

“ The decisions of the Constitutional Court shall be final , enforceable and binding . ”

“ A constitutional appeal may be lodged against an individual decision or an action of a ORG body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the LAW , if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law .

A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant ’s right to a trial within a reasonable time . ”

“ A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the LAW has been violated or denied by an individual decision or an action of a ORG body or an organisation exercising delegated public powers . ”

“ A constitutional appeal may be lodged within DATE of receipt of the individual decision or the date of commission of the actions ... [ in question ] ... ”

“ When ORG finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by LAW , it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time .

The decision of ORG accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body , in accordance with the law . ”

“ ... [ An applicant who has obtained a ORG decision in his or her favour ] .. , may lodge a compensation claim with ORG in order to reach an agreement in respect of the amount ... [ of compensation to be awarded ] ...

If ORG does not rule favourably in respect of a compensation claim or fails to issue a decision within DATE from the date of its submission , the applicant may file a civil claim for damages before the competent court . If only partial agreement has been achieved , a civil claim may be filed in respect of the remainder of the amount sought .

The composition and operation of ORG shall be regulated by the Minister of Justice . ”


Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens

The applicant was born in DATE and is serving a prison sentence in PERSON , in the GPE region .

On DATE senior police officer U. sent his subordinates , including officers PERSON , to arrest the applicant at his flat and take him to ORG of the Interior ( УВД PERSON области ) for questioning with regard to several cases of theft . According to the applicant , the police officers put him in the back seat of the car , where they started beating him to make him confess to the thefts until he almost lost consciousness . At the police station he was handcuffed and stripped naked in the presence of the police officers and Ms B. , an investigator . One of the police officers pulled a knitted hat down over his eyes . Then they pinned him to the table and threatened to rape him with a rubber truncheon .

In TIME of the same day the applicant was taken to the GPE temporary detention facility ( ORG г. ORG ) , where he was held for DATE .

Following the prosecutor ’s refusal to authorise the applicant ’s detention pending investigation , the applicant was released on DATE on a written undertaking that he would not leave town .

On DATE the applicant was examined by a general practitioner and a surgeon at ORG in GPE . The applicant complained to the doctors that he had been beaten up by police officers and was experiencing pain in the lumbar region . The excerpt from the applicant ’s medical file read as follows :

“ DATE . On DATE [ the applicant ] was beaten up at the police station . Since then [ he ] has been bothered by pain in the right lumbar and subcostal region . No dysuria . Satisfactory general condition . Blood pressure measurement CARDINAL . Clear heart beat . Vesicular breathing . Soft abdomen , moderate pain in the right subcostal region . Painful muscle palpation in the right lumbar region . Diagnosis : contusion ( ушиб ) in the lumbar region ? ”

On DATE investigator PERSON summoned the applicant for questioning in connection with a case of robbery . The applicant denied involvement in the robbery . Despite a refusal by the prosecutor to place the applicant in custody , he was allegedly detained at the police station , where he spent TIME sitting on a chair handcuffed to a radiator .

After the applicant had been identified by a witness as one of the alleged perpetrators , the prosecutor authorised his detention pending investigation on DATE .

On DATE the applicant appointed PERSON , a lawyer , to represent him in the criminal proceedings against him .

On an unspecified date the applicant made complaints of ill - treatment to ORG .

On DATE the assistant prosecutor of ORG refused to institute criminal proceedings against the police officers . The assistant prosecutor based her findings on statements made by the police officers and Investigator PERSON , who denied the applicant ’s allegations , and on the applicant ’s medical file . In particular , the assistant prosecutor stated as follows :

“ ... On DATE ORG received a complaint by [ the applicant] ... in which he alleges that officers PERSON . and PERSON of ORG used unlawful methods of investigation . In particular , they subjected him to physical and mental pressure to make him confess to the offences he was charged with ... [ The applicant ] contests his guilt and requests to be released from custody .

... Furthermore [ the applicant ] indicates that on DATE he was unlawfully detained ... On the way to the [ police station ] he was beaten , the beatings continued upon arrival , the officers bullied and humiliated him ... Investigator PERSON was also present ...

Officer PERSON submits that he participated in [ the applicant ’s ] arrest ... On the way to the [ police station ] there was no need for them to apply physical force . [ The applicant ] had voluntarily agreed to come [ to the police station ] with the officers . At [ the police station ] [ M. ] talked to [ the applicant ] briefly until Investigator PERSON was available [ to question him ] . However , [ PERSON ] did not apply physical or mental pressure [ to the applicant ] , he did not humiliate or debase him as he was not personally or professionally interested in finding [ the applicant ] guilty because [ M. ] did not know the applicant and the cases he dealt with did not involve [ him ] . He was only assigned to conduct a search at [ the applicant ’s ] flat . [ Senior officer ] U. confirmed that he had sent his subordinates , including PERSON , to arrest [ the applicant ] , but had not talked to him himself .

According to Investigator PERSON , she was in charge of the criminal case involving [ the applicant ] ... On DATE she ordered his arrest ... He was brought [ to the police station ] by police officers ... She did not see any injuries on him . Nor did he complain to her that he had been beaten on the way to the [ police station ] . In her presence none of the police officers of the department had pressured [ the applicant physically or mentally ] ... The prosecutor refused to authorise his detention and [ the applicant ] was released on a written undertaking not to leave the town ...

According to a report from the temporary detention unit where [ the applicant ] was held from DATE , he did not request medical assistance and did not have any bodily injuries ...

An excerpt from the [ the applicant ’s ] medical file states that on DATE he consulted a general practitioner complaining that he had been beaten at [ the police station ] on DATE ... However , it is impossible to establish beyond reasonable doubt that the applicant ’s injuries were caused by the police officers . On DATE the applicant was held at the temporary detention unit ... and did not ask for medical assistance . Furthermore , he was released from the temporary detention unit on DATE , but he did not consult [ the doctors ] until DATE , that is , DATE . During that period he could have been injured in different circumstances ...

The applicant ’s allegations are not consistent with the findings of the inquiry . This indicates that the applicant is trying to mislead the prosecutor ’s office and the court with regard to his guilt . ”

The prosecutor also dismissed as unfounded the applicant ’s complaint that he was handcuffed on TIME DATE .

In DATE ORG in GPE opened the trial . The applicant maintained his innocence and alleged , inter alia , that the police officers had used unlawful investigation methods to make him and other defendants confess to the crimes , which resulted in the false testimonies against him given by other defendants .

On DATE ORG found the applicant guilty of robbery and theft and sentenced him to CARDINAL years’ imprisonment . The court dismissed the applicant ’s allegations that he had been subjected to beatings and unlawful investigation methods while in police custody , stating as follows :

“ The court can not accept the allegations made by defendants PERSON , ORG and [ the applicant ] that police officers subjected them to psychological or physical pressure during the investigation . As pointed out earlier , the prosecutor ’s office conducted thorough inquiries in respect of the actions of the police officers , and the [ defendants’ ] allegations proved to be unfounded .... Furthermore , the court questioned officers PERSON . , PERSON , PERSON and [ investigator ] PERSON , who had been involved in the criminal investigation . They testified to the court that they had not subjected the defendants to any unlawful treatment . The ORG has no reason to doubt their testimonies , given that they ... had been warned of their criminal liability for perjury or refusal to testify . ”

The applicant appealed against his conviction , alleging , in particular , that the police officers had subjected him to ill - treatment .

On DATE ORG upheld the applicant ’s conviction on appeal . The court did not make a specific ruling on the applicant ’s allegations of ill - treatment .

On DATE the applicant lodged a complaint about his conviction and ill - treatment with ORG . On an unspecified date he forwarded a similar complaint to ORG .

On DATE the First Deputy Regional Prosecutor responded that the applicant ’s conviction was in compliance with law . As regards the applicant ’s complaint of the ill - treatment , the prosecutor noted as follows :

“ The [ applicant ’s ] allegations that he had been subjected to physical and psychological pressure lack any substantiation . ORG had earlier conducted an inquiry and refused to open a criminal investigation . ”

On DATE ORG informed the applicant that they did not discern any irregularities in the way the courts had determined the criminal charges against him . Nor had “ any unlawful methods of investigation ” been employed against the applicant .

A prosecutor , investigator or judge is under an obligation to accept for review any complaint concerning a criminal offence and to decide whether a criminal investigation is necessary . They may request relevant material or explanations ( Article CARDINAL of LAW in force until DATE , the “ old CCrP ” ) .

Where there are sufficient grounds to believe that a crime has been committed , the prosecutor , the investigator or the judge initiates a criminal investigation ( Article CARDINAL of the old CCrP ) .

The complainant may appeal against the refusal to open a criminal investigation to a prosecutor or a court ( Article CARDINAL of the old CCrP ) .


Violation of Article 6 - Right to a fair trial

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE ORG ordered a company FAC , the applicant ’s former employer , to reinstate him in his post and to pay him compensation . This decision became final .

However , on DATE the same court granted ORG ’s request and annulled the DATE decision ( contestaţie în anulare ) . It proceeded to re - examine the case and dismiss the applicant ’s initial action .

The DATE decision was drafted on DATE and typed up on DATE . In accordance with the rules of procedure , it was not served on the parties .

On DATE the applicant requested PERSON to lodge an application with ORG for an audit setting aside the decision of DATE ( recurs PERSON anulare ) . On DATE , the Procurator - General refused to act upon the applicant ’s request .

NORP In a decision of DATE , which was upheld by a final decision of ORG on DATE , the applicant ’s previous employer , a company called PERSON was ordered to give the applicant his employment record and to pay him MONEY ( ROL ) in legal fees .

On an unspecified date , the applicant lodged an application with LOC to enforce that decision . In its defence , PERSON claimed that it no longer had the applicant ’s employment record and that only the most recent employer ( FAC ) was allowed to deliver a duplicate .

On DATE the application was dismissed . The court found , in particular , that the facts of the case confirmed that it was objectively impossible for PERSON to deliver the applicant ’s employment record , as the document was no longer in its possession .

The applicant ’s appeal was allowed by ORG in a final decision of DATE , as amended on DATE . The court imposed a DATE penalty on PERSON of ROL CARDINAL from DATE until execution and ordered it to pay the applicant ROL CARDINAL in legal fees . After noting the arguments used by the court at firstinstance in order to find in favour of the debtor , the appeal court stated , in particular , that :

“ In so far as an irrevocable decision ordered [ M. ] to deliver to the complainant his employment record , the impediments to compliance referred to by the first - instance court are irrelevant . ”

On DATE PERSON filed with ORG a request for the annulment ( contestaţie în anulare ) of the decision of CARDINAL DATE , on the ground that ORG had not examined the evidence confirming its inability to comply .

NORP The applicant submitted that PERSON did not have locus standi to request an annulment , since the extraordinary - appeal procedure was only available to the party who had lodged the ordinary appeal . He also contended that the request should be rejected since PERSON had invoked the same reasons as before the first - instance court and the appeal court .

In a final decision of CARDINAL DATE , ORG , sitting in a different composition from that of DATE , allowed the request , and quashed the final decision of CARDINAL DATE on the merits and the decision of CARDINAL DATE amending it . Consequently , it dismissed the applicant ’s appeal and upheld the judgment of DATE . The relevant parts of the decision read as follows :

“ The request [ for annulment ] was lodged by [ M. ] , which was the respondent in the appeal proceedings , within the time - limits set out in LAW ...

The court considers that LAW is applicable , as the appeal court committed a material error , that is , an obvious material error made by omitting important elements or information from the file which had an influence on the solution adopted .

When examining the grounds for appeal , the court should have taken into account the evidence , that is , all elements that confirmed the inability to comply , namely the lack of the applicant ’s employment record . The court ’s conclusion that those impediments are irrelevant contradicts the evidence . ”

Article CARDINAL of the Code of Civil Procedure defines a “ material error ” as CARDINAL of the grounds for having a final decision quashed by means of a request for annulment ( contestaţie în anulare ) . This Article reads as follows , in so far as relevant :

“ Decisions rendered by a court of last instance may also be contested by means of a request for annulment , when the decision was based on a material error ... ”


The applicant , Mr PERSON , is a NORP national , born in DATE and living in GPE . He was represented before the ORG by PERSON K.H. PERSON , of FAC .

The facts of the case , as presented by the parties , can be summarised as follows .

DATE and DATE the applicant worked as a radio journalist in GPE ( GDR ) . He ran the international press - review office until shortly before the entry into force of LAW on DATE .

On DATE the applicant entered into an agreement proposed by his employer under which his contract of employment was to terminate and he would receive an early - retirement pension ( NORP zur Beendigung des Arbeitsrechtsverhältnisses und zur PERSON ) of CARDINAL NORP marks DATE , in accordance with LAW of CARDINAL DATE ( PERSON ) . The Order required employers to pay qualifying employees an early - retirement pension equal to PERCENT of their average net wage over DATE . LAW second implementing provision ( PERSON ) of the Order provided for the pensions to be indexed to changes in pay levels within the firm that would have affected the employee had he or she continued to work .

In a judgment of CARDINAL DATE ORG ( PERSON - arbeitsgericht ) dismissed an appeal by the applicant for the same reasons .

In a judgment of DATE , ORG ( ORG ) dismissed a further appeal by the applicant , holding that his rights had been extinguished by the entry into force of LAW on DATE .

ORG pointed out , firstly , that the obligations of the GPE radio and television company , which was dissolved on reunification , had been assumed by the CARDINAL LOC within the territory of the GPE at the time and GPE . It added that by virtue of LAW second implementing provision of the Early - Retirement Pensions Order , taken together with Appendix IIa of LAW , ORG was in law the successor ( PERSON ) to the applicant ’s former employer .

ORG found , further , that the applicant no longer had any right to payment of the difference , as the legal basis for the progressive indexation of the early - retirement pension had disappeared on DATE , ORG having changed the method by which the level of the early - retirement pension was adjusted . That change had been made with the consent of the parliament of the GPE . Former LAW of the second implementing provision had been repealed and replaced by the “ adjustment factor ” provisions set out in LAW .

ORG found , lastly , that the agreement made on DATE did not contain any provision giving the applicant any additional rights to those set out in the Early - Retirement Pensions Order of CARDINAL DATE . In particular , it did not provide for a progressive , long - term revaluation of the applicant ’s early - retirement pension in line with changes in wage levels paid by the employer , but expressly stipulated that the pension was granted on the basis of the Order of CARDINAL DATE .

On DATE ORG ( ORG ) , sitting as a bench of CARDINAL judges , declined to accept a further appeal by the applicant for adjudication .

PERSON , Chapter VIII , section E , paragraph III no . CARDINAL of LAW of DATE provides that the Early - Retirement Pensions Order remains valid , but lays down , inter alia , that after that date payments will , at the employee ’s request , be made by ORG and that the early - retirement pension shall be equal to PERCENT of the average net wage over DATE .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives 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 at CARDINAL time lived with his parents and brothers in the PERSON village of ORG . Their house was on the outskirts of the village . The applicant later moved to GPE . His family continued to live in PERSON .

On an unspecified date in DATE the applicant learned that the security forces had chopped down his family ’s fruit trees in the village . On an unspecified date , the local gendarme commander orally stated that the soldiers who had chopped the trees had subsequently been disciplined . The applicant ’s family did not make any formal complaints .

In the unspecified past , the soldiers had allegedly burned CARDINAL houses in the centre of the village and compelled the villagers to leave the village . In TIME of an unspecified day in DATE , while the applicant ’s father was visiting him in GPE , some soldiers opened fire in the direction of the house , presumably in the course of a clash with the ORG . The soldiers’ bullets caused a fire near the house of the applicant ’s family , burning dry leaves and chopped wood only .

The applicant ’s family informed him about these incidents and expressed their fears . They did not feel secure to live in this region . The applicant came to the village in order to take his family to GPE . His family left all their belongings in the house and voluntarily gave the keys to the local gendarme station for potential house searches .

The applicant ’s family began to live with him in GPE . In DATE the father of the applicant died .

DATE the applicant went to the village DATE in order to check the house . In DATE he noticed that some of their belongings and some food supplies were missing . Moreover the doors and the windows of the house had been removed .

On DATE the applicant wrote to the GPE Governor ’s Office . He explained that he wanted to return to his village that he had left in DATE . He reported about the damage caused to his house and belongings and requested that his damage be assessed . He further requested financial aid to repair his house .

On DATE ORG of the GPE Governor ’s ORG wrote in reply that an investigation had been carried out by ORG . It was observed that there were no residents in the village as a result of the acts of terror . According to the ORG , the damage had been caused by severe weather conditions and lack of proper care and maintenance . It was noted that the damage had accelerated after the roof of the house was ruined . The ORG concluded in the light of these facts and under the relevant law that it was not possible to provide any compensation or financial aid , as requested . The applicant did not challenge this decision .

In DATE the applicant went to the village again . He observed that the roof of the house had suffered some more damage since DATE . He further noticed that DATE unspecified – family belongings had been stolen .

On DATE the applicant wrote a second letter similar to the letter of DATE . He did not submit a copy of it to the ORG .

On DATE ORG wrote in reply to the second letter that an investigation had been carried out . It referred to an internal directive of DATE of ORG of the Bingöl Governor ’s Office . The referred directive had ordered the identification of the families who had emigrated as a result of the acts of terror but subsequently returned and built houses , or those who wished to return . The letter noted that , under the relevant law , it was not possible to provide any compensation or help from GPE Office and ORG .

The letter nevertheless stated that , on the condition that the applicant would return to the village , his situation would be reconsidered in the light of a new investigation to be conducted on site . The letter further stated that if his request were found to be well - suited , necessary aid could be provided .

The applicant did not find the letter sincere . He was of the opinion that the local gendarme commander would not allow any construction work in the village . He also believed that various unreasonable security measures in the village would make it undesirable to live there . The applicant neither returned to the village nor wrote to any other ORG institution .

In DATE , the applicant learned from unspecified sources that his house was destroyed to a greater extent and the village forests were burned .

The security forces had not destroyed or stolen the applicant ’s belongings . Furthermore , the official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL VI )


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial claim;Costs and expenses partial award

The applicant was born in DATE and lives in PERSON .

On CARDINAL DATE the applicant was arrested by ORG ) on charges of embezzlement . He had completed his ORG studies , did not have a criminal record , was employed and had a permanent domicile .

On DATE the investigating judge of ORG , issued a warrant for his remand in custody for DATE . The reasons given by the court for issuing the warrant were that :

“ The criminal proceedings were instituted in accordance with the law in force . [ The applicant ] is suspected of having committed a serious offence for which the law provides imprisonment of DATE ; the evidence submitted to the court was obtained lawfully ; the isolation of the suspect from society is necessary ; he could abscond from law - enforcement authorities or the court ; he could obstruct the finding of truth in the criminal investigation or re - offend ” .

The applicant appealed against this decision arguing inter alia that the suspicion against him was groundless , that he did not have any intention of absconding or obstructing the investigation in any way and that he was ready to co - operate with the investigation body .

On DATE , the applicant 's appeal was dismissed by a panel of CARDINAL judges of ORG .

On DATE the ORG prolonged the applicant 's detention on remand for DATE . The court reasoned that detention was necessary because :

“ [ the applicant ] is suspected of having committed a very serious offence , there is a risk that he may put pressure on witnesses or put himself out of the reach of law - enforcement authorities ; and there is a continuing need to isolate him from society ” .

NORP The applicant appealed against this decision and submitted the same arguments as advanced in his first appeal .

On DATE ORG dismissed the applicant 's appeal without relying on any new arguments .

The applicant 's detention on remand was prolonged on the same grounds until DATE , when he was released from detention .

The applicant was detained in the remand centre of the ORG . The room used for meetings between lawyers and detainees had a glass partition to keep them separated .

The relevant domestic law concerning detention on remand was set out in the ORG 's judgment in ORG v. GPE , no . CARDINAL , § DATE , CARDINAL DATE .

It appears from the photographs submitted by the Government that in the lawyer - client meeting room of the LOC detention centre , the space for detainees is separated from the rest of the room by a door and a window . The window appears to be made of CARDINAL plates of glass joined together . Both plates have small holes pierced with a drill ; however the holes do not coincide so that nothing can be passed though the window . Moreover , there is a dense green net made either of thin wire or plastic between the glass plates , covering the pierced area of the window . There appears to be no space for passing documents between the lawyer and his client .

The domestic courts have ruled on complaints about lack of confidentiality in the ORG lawyer - client meeting room in the cases of PERSON ( application no . CARDINAL/CARDINAL ) and ORG ( cited above ) . On DATE a judge of ORG ordered the ORG authorities to remove the glass partition separating lawyers from their clients ; however , the ORG authorities refused to comply with the court order . On DATE the same judge revoked the decision of CARDINAL November CARDINAL arguing that in the meantime she had been informed by the ORG authorities that there were no recording devices mounted in the wall separating the lawyers from their clients and that the wall was necessary in order to ensure the security of the detainees .

On DATE Mr ORG 's lawyer complained again to ORG under LAW that he could not confer with his client in conditions of confidentiality . On DATE the same judge from ORG dismissed the complaint without examining it and referred to her previous decision of DATE .

DATE ORG held a strike , refusing to attend any procedures regarding persons detained in the remand centre of the ORG until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients . The demands of ORG were refused ( see ORG , cited above , § CARDINAL ) .

On DATE ORG held a meeting at which the President of ORG and another lawyer informed the participants that they had taken part , together with representatives of ORG , in a commission which had inspected the LOC detention centre . During the inspection they asked that the glass wall be taken down in order to check that there were no listening devices . They pointed out that it would only be necessary to remove several screws and they proposed that all the expenses linked to the verification be covered by ORG . The ORG administration rejected the proposal .

Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on ORG ( adopted by ORG on DATE at the PERSON meeting of ORG ) , insofar as relevant , reads as follows :

“ CARDINAL All prisoners are entitled to legal advice , and the prison authorities shall provide them with reasonable facilities for gaining access to such advice . ...

ORG and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential . ...

CARDINAL Prisoners shall have access to , or be allowed to keep in their possession , documents relating to their legal proceedings . ”


IMOBILIJE MARKETING D.O.O. AND DEBELIC v. CROATIA

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The first applicant , ORG . , is a limited liability company incorporated under NORP law , which has its registered office in GPE . The second applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . He is an advocate practising in LOC . The first applicant was represented before the ORG by the second applicant . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicants concluded a lease agreement with PERSON whereby they as lessors leased their business LOC to her for DATE ( from DATE until DATE ) . In return , PERSON as a lessee was obliged to pay them in NORP kunas ( HRK ) the counter value of MONEY ( ORG ) per year . For DATE agreed to pay the applicants in kunas the counter value of : ( a ) DEM CARDINAL,CARDINAL upon the conclusion of the agreement , ( b ) DEM CARDINAL,CARDINAL by DATE ; and ( c ) DEM CARDINAL,CARDINAL by DATE . For every subsequent year PERSON agreed to pay in kunas the counter value of : ( a ) DEM CARDINAL,CARDINAL by DATE of DATE for DATE , and ( b ) DEM CARDINAL,CARDINAL by DATE for DATE .

The agreement was concluded in the form of a notarial deed ( javnobilježnička isprava ) and contained an enforcement clause entitling the applicants to directly institute enforcement proceedings against PERSON if she failed to pay the annual rent .

Given that by DATE PERSON had paid only the counter value of DEM CARDINAL of the amount due by that date , on DATE the applicants instituted enforcement proceedings before ORG ( PERSON ) with a view to collecting the unpaid amounts . By CARDINAL DATE the applicants had instituted another QUANTITY sets of enforcement proceedings before the same court with a view to satisfying their claims arising from the above - mentioned lease agreement . However , even though the court had frozen PERSON ’s bank account already on DATE , the applicants were unable to satisfy any of their claims owing to the lack of funds on that account . It would appear that CARDINAL out of the QUANTITY enforcement proceedings are still pending ,

Meanwhile , on DATE the applicants instituted non - contentious proceedings before ORG asking the court to issue a preliminary measure ( prethodna DATE – a type of security measure ( mjera osiguranja ) DATE freezing PERSON ’s bank account for the sum corresponding in kunas to the counter value of DEM CARDINAL,CARDINAL , that is , the remaining amount of rent that would become due before the expiry of the lease agreement on DATE . They argued that PERSON ’s behaviour , in particular her failure to pay the full amount of the rent due by DATE , suggested that it was likely that she would not pay the future instalments of the rent as they become due .

On DATE the court dismissed the ORG request .

Following an appeal by the applicants , on DATE ORG ( Županijski sud u ORG ) quashed the first - instance decision and remitted the case .

In the resumed proceedings , on DATE ORG again dismissed the applicants’ request .

Following an appeal by the applicants , on DATE ORG again quashed the first - instance decision and remitted the case .

On DATE ORG dismissed the ORG request for CARDINAL time . The court found the ORG request superfluous because their claim had been sufficiently secured . In particular , the court found that the applicants had frozen PERSON ’s bank account already on DATE in the above - mentioned enforcement proceedings .

On DATE ORG dismissed the applicants’ appeal and upheld the first - instance decision endorsing the reasons contained therein . It added that it was not allowed to issue a preliminary measure after the claim to be secured had become enforceable .

On DATE the applicants lodged an appeal on points of law ( revizija ) against the second - instance decision . It would appear that the case is currently pending before ORG ( PERSON ) .

On DATE the applicants lodged a request with ORG for protection of the right to a hearing within a reasonable time in respect of the above non - contentious proceedings .

On DATE the ORG found a violation of the applicants’ right to a hearing within a reasonable time and awarded them each HRK CARDINAL,CARDINAL in compensation .

The relevant part of LAW ( Zakon o sudovima , ORG nos . DATE , CARDINAL/CARDINAL and CARDINAL ) , which entered into force on DATE , reads as follows :

“ ( CARDINAL ) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her , may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court .

( CARDINAL ) If the request concerns proceedings pending before ORG of GPE , ORG or ORG , the request shall be decided by ORG .

( CARDINAL ) The proceedings for deciding the request referred to in paragraph CARDINAL of this section shall be urgent . The rules of non - contentious procedure shall apply mutatis mutandis in those proceedings and , in principle , no hearing shall be held .

( CARDINAL ) If the court referred to in section CARDINAL of this LAW finds the request well founded , it shall set a time - limit within which the court before which the proceedings are pending must decide on a right or obligation of , or a criminal charge against , the person who lodged the request , and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time .

( CARDINAL ) The compensation shall be paid out of the ORG budget within DATE from the date the party ’s request for payment is lodged .

( CARDINAL ) An appeal , to be lodged within DATE with ORG , lies against a decision on the request for the protection of the right to a hearing within a reasonable time . No appeal lies against ORG decision but CARDINAL may lodge a constitutional complaint . ”

LAW ( Ovršni zakon , ORG , ORG . ORG , CARDINAL , CARDINAL , CARDINAL , ORG , CARDINAL , GPE , DATE and CARDINAL/CARDINAL ) regulates both enforcement proceedings ( ovršni postupak ) in civil law matters and security proceedings ( proceedings for the issuance of interim measures , postupak osiguranja ) .

The LAW provides for CARDINAL types of security ( interim ) measure ( mjere osiguranja ) , CARDINAL of which are voluntary and CARDINAL of which are compulsory .

The CARDINAL voluntary measures are : ( a ) judicial and notarial pledge security on the basis of the agreement of the parties ( sudsko i javnobilježničko založnopravno osiguranje tražbina na temelju sporazuma stranaka ) and ( b ) judicial and notarial ( fiduciary ) security by transferring ownership of a property or by transferring a right ( sudsko i javnobilježničko ( fiducijarno ) osiguranje prijenosom vlasništva na stvari i prijenosom prava ) .

The CARDINAL compulsory measures are : ( a ) security by compulsory mortgaging of an immovable property ( osiguranje zasnivanjem založnog prava na nekretnini ) , ( b ) security by anticipatory enforcement ( osiguranje prethodnom ovrhom ) , ( c ) security by preliminary measures ( osiguranje prethodnim mjerama ) , and ( d ) provisional measures ( privremene mjere ) .

The relevant provisions of LAW regulating preliminary measures provide as follows :

C h a p t e r t h i r t y

SECURITY BY PRELIMINARY MEASURES

Requirements for imposition of a preliminary measure

Section CARDINAL

“ ( CARDINAL ) ORG preliminary measure shall be imposed with a view to securing a monetary claim on the basis of :

a decision of a court or an administrative authority that has not [ yet ] become enforceable ,

NORP a settlement concluded before a court or an administrative authority , if the claim determined therein has not [ yet ] become due ,

a notarial deed , if the claim determined therein has not [ yet ] become due .

( CARDINAL ) The court shall on the basis of the documents referred to in paragraph CARDINAL of this section impose a preliminary measure if the requesting party [ i.e. the creditor ] demonstrates that without such a security [ measure ] there is a probable risk that the satisfaction of the claim [ i.e. the collection of the debt ] would be frustrated or seriously hindered . ”

Types of preliminary measures

Section CARDINAL

“ ( CARDINAL ) A court may impose the following as preliminary measures :

NORP ...

NORP ...

A prohibition on the bank to pay the opposing party [ i.e. the debtor ] or a third party , at the opposing party ’s order , an amount from his or her account for which the preliminary measure has been imposed .

( CARDINAL ) ...

( CARDINAL ) By the implementation of the preliminary measure , the requesting party [ i.e. the creditor ] shall acquire the right of pledge on the object of the security [ measure ] .

( CARDINAL ) The sum of money deposited by the opposing party in the bank , on which the prohibition of payment has been imposed , may not be transferred from that account until the prohibition is in force , except to satisfy the secured claim . ”

Decision on imposition of a preliminary measure

Section CARDINAL(CARDINAL )

“ A period for which a preliminary measure is imposed may not be longer than DATE after the conditions for enforcement have been met . ”

NORP legal scholars classify security ( interim ) measures ( mjere osiguranja ) into CARDINAL main categories according to their purpose : ( a ) protective ( conserving ) measures , ( b ) regulatory measures , and ( c ) anticipatory measures .

Protective measures are those measures whose purpose is to create conditions for the future satisfaction of a creditor ’s claim . ORG and notarial pledge security , judicial and notarial fiduciary security , security by compulsory mortgaging of an immovable property , all preliminary measures and the majority of provisional measures are considered as protective measures .

Regulatory measures are those measures whose purpose is to temporarily regulate relations between the parties . Certain provisional measures are considered regulatory measures .

Anticipatory measures are those measures whose purpose is to satisfy a creditor ’s claim in advance . The anticipatory enforcement and certain provisional measures are considered anticipatory measures .

In terms of their effects , NORP legal scholars classify security ( interim ) measures into CARDINAL main categories : ( a ) those that lead to ( complete or partial ) satisfaction of LOC claims ( the anticipatory enforcement and certain provisional measures ) , and ( b ) those that create certain rights in rem ( judicial and notarial pledge security , judicial and notarial fiduciary security , security by compulsory mortgaging of an immovable property and all preliminary measures ) , and ( c ) those that create certain quasi rights in rem or which de facto remove or reduce the risk of a future impossibility to satisfy a creditor ’s claim ( all provisional measures ) .


TH-TEKNIIKKA OY:N KONKURSSIPESÄ v. FINLAND

The applicant is a NORP bankrupt ’s estate , whose domicile is GPE .

It is represented before the ORG by Mr PERSON , a lawyer practising in ORG .

A.

In DATE the applicant brought an action for recovery against a company T before the GPE ORG ( käräjäoikeus , tingsrätt ) . On CARDINAL DATE ORG partly rejected and partly accepted the applicant ’s claims .

Both the applicant and the company T appealed to ORG ( hovioikeus , hovrätt ) . The applicant also submitted a new piece of evidence . After the time for appeal had expired , the applicant filed another submission requesting an oral hearing . The company T had requested a hearing in its appeal .

On DATE ORG , in written proceedings , reversed ORG decision and dismissed the applicant ’s action . Under LAW , Section CARDINAL , Subsection CARDINAL , of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalk

On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal .

B. Relevant domestic law

The relevant domestic law as in force at the relevant time may be summarised as follows :

Under LAW , Section CARDINAL , Subsection CARDINAL , of the Code of Judicial Procedure , no new evidence , which had not been submitted to ORG , was allowed before ORG , unless the appellant could prove that he had been unable to submit the evidence before ORG or that he had had a valid reason for not doing so .

According to Chapter CARDINAL , Section CARDINAL , Subsection CARDINAL , of the Code of Judicial Procedure , a ORG could hold , when necessary , an oral hearing , where parties , witnesses and experts could be heard , and other evidence could be taken .


The applicant was born in DATE and lives in GPE .

On DATE the applicant brought an action against a private individual before ORG , seeking to recover the possession of some specific movable property .

After several hearings , a judgment was delivered on DATE , which was quashed by ORG on DATE .

In the resumed proceedings several forensic expert opinions were obtained . CARDINAL hearings had to be rescheduled as the applicant and his representative failed to appear , despite having been duly summoned . On DATE the ORG delivered a judgment . On DATE ORG remitted the case .

ORG delivered a partial judgment on DATE , which was decided on appeal by ORG on DATE .

In respect of the respondent 's counterclaim , the first - instance court delivered a judgment on DATE which was upheld by ORG on DATE .


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

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

On DATE the applicant bought QUANTITY of land situated near FAC in DATE . After consulting specialists in forestry , he decided that the nature of the land made it suitable for a commercial nursery . The applicant submitted that he had fenced the property with posts and planted CARDINAL spruce trees on it . He intended to sell them as DATE trees . The applicant used tree shelters made of woollen fabric and a chemical repellent to prevent damage caused by game . The Government submitted that the applicant had failed to “ properly secure ” his property from game and hunters .

During DATE PERCENT of the trees were damaged by game . The applicant estimated his loss at ORG CARDINAL . He replaced destroyed trees but in DATE game again damaged trees . The Government contested the applicant 's estimate .

Furthermore , the applicant submitted that on numerous occasions he met on his plantation NORP and foreign hunters accompanied by a forest warden ( leśniczy ) . When the applicant asked the forest warden why they hunted on his private property he was told that his land had been leased to the local hunting club ( GPE łowieckie ) . It followed that the hunters could take game on the applicant 's land whether he objected to it or not , whereas the applicant himself had no right to hunt on his property . In addition , the forest warden stated that although he could see damage to the applicant 's property caused by game , according to law nobody was responsible for it .

Subsequently , the applicant complained to ORG ( ORG w ORG ) , ORG ( PERSON w ORG ) , the ORG and the local hunting club which leased his property .

In a letter of DATE ORG observed that the applicant 's claim concerned damage caused to a nursery and informed him that according to LAW DATE compensation could be obtained only for damage to harvested crops or crops under cultivation . Moreover , the applicant was advised to approach the local hunting club in order to start co - operation in protecting his property from damage . Finally , he was informed that under LAW DATE he could apply for a subsidy to reimburse the cost of planting new trees if his property was covered by the official zoning map .

On DATE the applicant received a letter from the ORG which stated :

“ In reply to your letter ( ... ) concerning damage to your nurseries caused over DATE by game – for which you can not obtain compensation – unfortunately I do not have good news for you . I should explain the following :

CARDINAL ) NORP The question whether compensation should be paid is regulated by law ( ... ) . However , the currently binding law – as before – is very unfavourable to you and many other individuals . The presently binding regulations , i.e. LAW of DATE ( ... ) and LAW of DATE ( ... ) allow only very limited liability for damage caused by game . According to those regulations , such a liability , i.e. an obligation to pay compensation , exists only in the following cases :

( a ) damage caused by bison , bears and beavers , or

( b ) if damage is caused to harvested crops and crops under cultivation DATE also by ( ... ) boars , elks , deer , fallow deer and roe deer ( ... ) . However , damage caused by other species does not result in such liability . It follows that those who suffered damage [ caused by such species ] do not have legal grounds and possibilities to obtain compensation , as neither ORG , i.e. organs of public administration , nor any other institution is obliged to pay compensation .

CARDINAL ) NORP The Ombudsman has considered that such a legal situation ( ... ) should be changed since it is unfair and detrimental to citizens . The PERSON and ORG are competent to introduce changes to legislation which would create liability for damage caused by game . ( ... ) In DATE , when LOC was being considered by the PERSON , the ORG pointed out to the Speaker of the PERSON – not for the first time DATE that the legal regulation of that subject - matter should be changed ( ... ) . Unfortunately , the PERSON adopted PERSON without taking into account the ORG 's submissions and did not extend liability for damage to all kinds of damage caused by game but instead practically repeated old regulations .

Therefore , the legal regulation of that subject - matter has not been changed . Even if in the future the PERSON changes ( ... ) the regulations ( ... ) , it will not be possible to receive compensation for damage suffered before the change [ of legislation ] because new regulations will not apply retroactively to damage caused before the date on which new regulations enter into force .

The legislation presently in force does not provide for the liability of either ORG or any other institution for damage caused , inter alia , in crops other than agricultural and therefore there is no legal i.e. judicial avenue to claim effectively compensation precisely because there are no legal grounds for such a claim . ( ... ) ”

Article CARDINAL , in so far as relevant , provides : ( ... )

NORP The official zoning map ( ... ) designs grounds to be afforested .

NORP The owners ( ... ) of grounds can obtain subsidies from the ORG budget for full or partial reimbursement of the costs of afforesting grounds referred to in paragraph CARDINAL . The decision concerning the grant of subsidy to cover those costs is made by the mayor after receiving an application from an owner ( ... ) and the opinion of the county council .

“ Game , for the nation weal , is the property of ORG . ”

“ Game taken on hunting grounds ( obwód łowiecki ) in compliance with the legal regulations belongs to the lessee or manager of the hunting grounds , and on the land not pooled into hunting grounds – to the State Treasury ”

“ Hunting grounds consist of an area not smaller than QUANTITY on which there exist conditions for hunting . ”

“ The Governor [ establishes the borders of ] hunting grounds and changes the borders of hunting grounds within his province by way of an ordinance which is issued after receiving an opinion of the Regional Director of ORG and ORG . ”

“ Hunting grounds are leased to the local hunting clubs of ORG . ”

“ CARDINAL . The lessee shall settle the rent received between the forest administration and the counties .

The forest administration shall receive a part of the rent proportionate to the area of ORG - owned land [ pooled in hunting grounds ] , whereas counties shall receive [ a part of the rent proportionate to ] the remaining area of the hunting grounds .

“ ORG is a union of physical and legal persons who actively participate in the preservation and development of game and act to preserve nature . ”

“ CARDINAL . Local hunting clubs are unions of physical persons and are units of ORG for the purposes of hunting .

Hunting clubs are legal persons liable for their obligations . ”

“ The tasks of the NORP ORG include :

NORP hunting management ;

NORP taking care of the development of hunting and co - operating with the ORG administration , local government , units of ORG , national parks and other organisations in the preservation of nature , in the preservation and development of game and other wild animals ,

taking care of the hunting heritage ,

“ CARDINAL . Hunting is allowed after the consent of the lessee or manager of the hunting grounds has been obtained .

Proof of membership of ORG certifying appropriate qualifications and a hunter 's firearms licence ( ... ) are required to hunt .

PERSON 's qualifications shall be certified after an examination before a commission set up by ORG .

“ The lessee or manager of the hunting grounds shall compensate damage caused :

NORP to harvested crops and crops under cultivation by boars , elks , deer , fallow deer and roe deer ,

NORP during the hunt . ”

“ CARDINAL . The owners ( ... ) of agricultural and afforested grounds shall , as needed , co - operate with the lessees and managers of the hunting grounds in securing them against damage referred to in DATE .

NORP If there is a disagreement between the owner ( ... ) of a ground and the lessees and managers of the hunting grounds , as to the amount of compensation for damage referred to in LAW , the parties may request the ( ... ) local council to mediate a settlement . ”

“ ORG , ORG and Forestry in agreement with the Minister of Agriculture shall issue a resolution concerning detailed rules and procedures of damage assessment and payment of compensation for damage caused to crops under cultivation and harvested crops . ”

“ The State Treasury shall be responsible for damage caused by game under permanent protection ”

According to the materials submitted by the applicant , in DATE ORG charged foreign hunters ORG CARDINAL for each taken medium - seized deer . The ORG invested those funds in the preservation of forests .

Article CARDINAL ( CARDINAL ) of LAW of DATE provides , in so far as relevant , as follows :

“ Everybody whose constitutional freedoms and rights have been violated , shall have a right to ( ... ) lodge a complaint with ORG concerning the conformity with LAW of a law or any other regulation , which was a basis on which a court or an organ of public administration decided about his freedoms , rights or obligations provided by LAW . ”

LAW reads , in so far as relevant , as follows :

“ The Constitutional Court shall adjudicate cases concerning :

the conformity of laws and international agreements with the LAW ,

the conformity of ratified international agreements ( ... ) ,

the conformity of laws issued by the central organs of the state , with the LAW , ratified international agreements and laws ,

the conformity of the aims and activities of political parties with the LAW ,

the ORG complaint , referred to in LAW . ”

Article CARDINAL of the LAW provides , in so far as relevant , as follows :

“ CARDINAL . Decisions of ORG are binding and final .

Decisions of ORG in cases referred to in Article CARDINAL shall be published ( ... ) .

A decision of the Constitutional Court shall enter into force on DATE on which it is published ; however , ORG may set a different time - limit for the overturning of [ unconstitutional ] legislation to take effect . Such a time - limit shall not exceed DATE in cases concerning a law , and DATE in cases concerning other types of legislation . In respect of decisions resulting in financial outlays not provided by the budget law , a time - limit shall be set after the ORG acquaints itself with the opinion of ORG .

A decision of ORG declaring unconstitutional ( ... ) a piece of legislation , according to which a case was decided ( ... ) is a basis for re - opening the case . ( ... ) ”

LAW provides :

“ CARDINAL . Republic of GPE shall protect property and a right to inherit .

Expropriation is allowed only in the public interest and with just compensation . ”

Article CARDINAL of the Code of Civil Procedure provides , in so far as relevant :

“ § CARDINAL . A case may be reopened also when ORG declared unconstitutional a legal act ( .. ) on which a judgment was based .

§ CARDINAL . In the circumstances described in § CARDINAL an application for reopening shall be lodged within DATE after the entry into force of ORG decision . ”


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

At the material time the applicant was the deputy principal of the St ORG seminary , where future NORP priests are trained . In addition , he was private secretary to the bishop of the GPE diocese , Bishop PERSON . He resigned from his post as deputy principal in DATE and is currently living in GPE .

In the issue of the DATE news magazine ORG an article was published on searches carried out by police in the PERSON ORG seminary . According to the article , police had searched the seminary on suspicion of someone having downloaded child pornography from the Internet . The article further stated that , according to rumours , police had also found photographs showing seminarians engaging in homosexual activities , and that there were rumours of unwanted homosexual advances towards seminarians involving abuse of authority . The article was accompanied by a photograph of the principal of the seminary , showing him standing in a garden , and by an interview with him in which he said that he did not believe that there had been any unwanted sexual advances by superiors and that the rumours were part of an intrigue or a revenge plot by a former seminarian . He denied involvement in any such incidents .

NORP In its issue of CARDINAL DATE ORG published an article entitled “ Go on ! ” ( Trau dich doch ) , with the sub - heading “ NORP scandal . Photographic evidence of sexual antics between priests and their students has thrown the diocese of PERSON into disarray . First the principal and now the deputy principal have resigned . High - ranking dignitaries expect PERSON [ the bishop of the diocese ] to be removed from office . ”

The article stated that the applicant and the principal of the seminary had had sexual relations with seminarians , but clarified that there was nothing to corroborate the rumours of unwanted homosexual advances which had been reported DATE . The article further reported that some seminarians had downloaded pornography and child pornography onto their computers . According to the article , the existence of homosexual relations was well known within the seminary and was even known to the bishop , who had tried to “ hush up ” the case at first . The article contained CARDINAL photographs of the applicant , CARDINAL on which he was about to embrace a seminarian , PERSON , and another one on which he and PERSON were about to kiss each other . On this photograph the applicant ’s eyes are closed and his mouth is half open . The photographs had been taken by CARDINAL of the seminarians at a DATE party in the applicant ’s private apartment on DATE . In the article the applicant was identified by name while the DATE ’s identities were not disclosed . Likewise , on the published photographs , the applicant ’s face was visible while that of the seminarian was blurred . The article quoted the applicant as saying that the photographs could be interpreted in different ways and that , at the DATE party in question , all the participants had embraced each other in a friendly manner .

On DATE , the applicant initiated proceedings under LAW ( Mediengesetz ) against ORG , the publisher of ORG , in respect of the article published on DATE . Relying on sections CARDINAL and CARDINAL of the said LAW , he requested compensation for defamation ( üble GPE ) and for the violation of his strictly personal sphere ( höchstpersönlicher Lebensbereich ) caused by the publication of the photographs and the impugned article , especially the following passages :

“ Porn scandal . Photographic evidence of sexual antics between priests and their students has thrown the diocese of PERSON into disarray . ” ; “ A painful truth : PERSON ’s principal engaged in sex with subordinates , also PERSON ’s private secretary and legal adviser ... ” ; “ Photos showing , among others , seminarians from PERSON in kinky situations , in some cases with their superiors ... and because they were doing it with the boss and his deputy too , it was all quite normal and they felt perfectly safe ... ”

The publisher of ORG replied that the content of the article was true . The company also argued that in the light of ORG position condemning homosexuality , and the fact that the applicant was responsible for the training of future priests in the seminary , the public had an interest in knowing about the situation at the seminary . Moreover , the applicant was the private secretary of PERSON , who had repeatedly and publicly condemned homosexuality as being a sin and an aberration . Consequently , there was a connection with public life . The article was thus lawful by virtue of the right to freedom of expression guaranteed by LAW .

On DATE , after holding several hearings at which evidence was heard from a number of witnesses , ORG ( PERSON , hereinafter “ the Regional Court ” ) dismissed the applicant ’s request for compensation .

ORG observed that a large percentage of readers of the DATE ORG that had published the impugned article and the photographs would read the news magazine in only a cursory manner and would also consult other media before forming their opinion . Those readers would learn that there had been homosexual contacts between the applicant and seminarians and also among seminarians , and that there existed photographs to support this . The published photographs showed not merely a kiss on the cheek but a NORP kiss . The sexual nature of the kiss was visible from the fact that the applicant had his eyes closed and his mouth open with his tongue visible . Since the article had also stated that previous rumours about sexual coercion of seminarians by their superiors had not been confirmed , it was made clear that the QUANTITY men had had a consensual relationship .

Giving a detailed assessment of various witness statements , ORG found it established that the applicant had had a homosexual relationship with a seminarian , PERSON , in which he had openly engaged at the ORG seminary . CARDINAL witness had stated , for instance , that the CARDINAL men were wearing rings with each other ’s names engraved on them together with the date of the beginning of their relationship . Moreover , CARDINAL of the published photographs showed the applicant exchanging a NORP kiss with the seminarian PERSON photograph had been taken in the applicant ’s apartment , which was placed at his disposal by the diocese , during a DATE party attended by a number of seminarians . The statement by the applicant quoted in the article , according to which the photographs could be interpreted in different ways , would lead the reader to conclude that the photographs had not been manipulated before publication . ORG thus held that the publisher had succeeded in proving that the facts contained in the article were in essence true .

A request by the applicant to obtain the opinion of an expert in photographic analysis was rejected , as expert opinions were only to be taken if the resolution of a question of fact required expert knowledge which the court did not possess . Where the judge was able to assess the evidence on the basis of his or her own knowledge , no expert opinion was required . ORG noted that the applicant had not alleged that the photograph had been manipulated . It could therefore be assessed without the help of an expert .

Owing to the considerable importance of ORG as a role model , the public had a great interest in knowing what was going on within the ORG . The public also had an interest in what happened in the seminary , especially since it had become known that pictures containing child pornography had been downloaded from the Internet . The circumstances leading to such incidents were a subject of public interest and had a direct connection with public life . The applicant , as the deputy principal of the seminary , was a public figure in that capacity . Even though the impugned pictures had been taken in his private residence there was a connection to his public life . While accusing a dignitary of ORG of having homosexual contacts constituted the actus reus of defamation within the meaning of section CARDINAL of LAW and exposed his strictly personal sphere within the meaning of section CARDINAL of LAW , the publisher had proved that the reported facts were essentially true . Thus , the applicant ’s claim for compensation had to be dismissed .

The applicant lodged an appeal on points of law and fact with ORG ( Oberlandesgericht ) . ORG , after holding a hearing , dismissed the appeal in a judgment of DATE .

ORG upheld the judgment of ORG , holding that the said court had not erred in fact or in law and had rightly held that the newspaper publisher had managed to prove that the content of the article was true . Regarding the applicant ’s complaint that the publisher had not proved that there had been a homosexual relationship between him and a seminarian , ORG found that the photographs of the CARDINAL men hugging and kissing , together with the evidence from a witness who stated that he had seen them repeatedly exchanging NORP kisses at the DATE party , was sufficient to prove that such a relationship had existed . As to the complaint that the first - instance court had refused to obtain an opinion from an expert in photographic analysis , ORG found that the judge had rightly held that she could interpret the photographs for herself . Furthermore , the finding that the applicant and the seminarian PERSON had had a homosexual relationship was based not only on the photographs but first and foremost on a witness statement . The court further held that , in reporting on photographic evidence of seminarians in “ kinky situations ” , the publisher had provided proof that the statements were true . The average reader of the magazine would understand the term “ kinky ” to mean a deviation from what was considered normal , which would include photographs of priests and seminarians in a sexual pose wearing clerical clothing , especially as the persons concerned belonged to a group who publicly spoke out against homosexuality and denounced homosexual contacts as sinful . ORG went on to state as follows :

“ The appellant argues that the substantive law was also incorrectly applied ... because the court found that the published material was connected with ‘ public life’ . In his view , the public interest in occurrences within an institution did not warrant a report which identified individuals , particularly when the report dealt with their strictly personal sphere and the individuals concerned had not been in the public eye . He had merely been deputy principal of the PERSON seminary , a purely internal function within the ORG which had no external dimension ; accordingly , there had been no grounds for any interference with the intimate sphere of his private life .

The court is not convinced by this argument . ORG , to which the majority of the NORP population belongs and which , according to LAW ( BGBl . II No . CARDINAL/CARDINAL ) , has public - law status , has a level of importance in GPE going beyond that of a small association , as is clear from the overall content of the ORG and the circumstances in which it was ratified . Accordingly , conduct on the part of ORG dignitaries which is in flagrant contradiction with NORP teachings may very well be of public interest , particularly where DATE as in the present case – homosexual contacts take place and are maintained , albeit on a consensual basis , between staff and students in an educational establishment and between students themselves . ORG strives for acceptance and credibility among the public at large , and the activities of a principal and a deputy principal , as the persons in charge of a training college for future priests , have a public dimension . ORG is engaged in public relations work in many spheres and regularly makes its views on ( sexual ) morality known to the population as a whole , with the result that the general public is also entitled to be informed if individual officials are failing to practise what they preach , condemning homosexuality as a sin in public while practising it in private , even between staff and students . It should also be taken into consideration that the teachings of ORG on the subject of homosexuality are contrary to the fundamental right to sexual self - determination under LAW and to the prohibition on discrimination ; hence , on this basis also , there is a public interest in the publication of specific allegations that Church dignitaries are failing to observe their ORG ’s teachings on sexual morals . This is even more so where the reports concern homosexual contacts between a teacher and his students . Such relationships of dependency call for particular vigilance in order to avoid potential breaches of a fundamental code of conduct designed to protect the physical and psychological integrity of the students . The media have a vital role in publicly exposing misconduct in a democratic society governed by the rule of law .

The exposure and public condemnation of such misconduct is thus in any event in the public interest ; the same is true of the reports identifying those concerned , without which it would not be possible to express credible criticism of specific inadmissible situations and thus fulfil the role of “ public watchdog ” . The weighing of interests in the present case should undoubtedly lead to the conclusion that the public right to information prevails . The professional activity of an ordained priest who is active in public life , as a clergyman , as deputy head of a seminary and as a close adviser and secretary to the bishop , does not take place merely within the ORG ; ORG has an important and , in some respects even a ORG role , and the credibility of its officials , who demand moral standards from the population and compliance with the ORG ’s rules of community life , occupies an important position in that regard . In particular , the fact that the events involved students who , as future officials of ORG are supposed to be taught these moral precepts by example , lends those events a public - interest dimension extending beyond the ORG itself and affects all sections of the population .

Furthermore , the applicant was widely involved in public relations work not just through the training of priests but also through his role as secretary and legal adviser to the bishop ; this serves as further justification for lending greater weight to the report identifying him than to his interest in preserving his anonymity , and for holding that there was a direct connection with public life .

ORG concluded that , since the article had reported essentially true facts and there was a public interest in their being reported , ORG had rightly rejected the applicant ’s request for compensation . The judgment was served on the applicant ’s counsel on DATE .

Section CARDINAL of LAW provides for the strict liability of the publisher , inter alia in cases of defamation . The victim can thus claim damages from the publisher . LAW provides as follows :

“ ( CARDINAL ) Where a medium publishes statements which constitute the actus reus of disparagement , insult , derision or defamation the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered ... ”

( CARDINAL ) The right referred to in paragraph CARDINAL above shall not apply ...

NORP in the case of defamation

( a ) [ where ] the statements published are true or

( CARDINAL ) Where the publication concerns the strictly personal sphere , a claim under subsection CARDINAL shall be excluded only on the grounds set forth in ... subsection CARDINAL ) ... ; the case of subsection CARDINAL ) , this shall not apply where the published facts are directly related to public life . ”

Section CARDINAL of LAW provides a claim for damages in cases of interference with the strictly personal sphere of an individual ’s life . It reads as follows :

“ ( CARDINAL ) If the strictly personal sphere of an individual ’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned , he or she shall have the right to claim compensation for the damage sustained from the media proprietor ( publisher ) . ...

( CARDINAL ) The right referred to in paragraph CARDINAL above shall not apply where

( i ) ...

( ii ) the statements published are true and are directly related to public life ;

( iii ) ... ”

For the purpose of LAW of LAW “ defamation ” is to be understood as defined in LAW ) , which reads as follows :

“ ( CARDINAL ) Anybody who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

( CARDINAL ) Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...

( CARDINAL ) The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . ”

Section CARDINAL of LAW , in so far as relevant , reads as follows :

“ ( CARDINAL ) Images of persons shall neither be exhibited publicly nor in any way made accessible to the public where injury would be caused to the legitimate interests of the persons concerned or , if they have died without having authorised or ordered publication , those of a close relative . ”

Article CARDINAL of LAW ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows :

“ ( CARDINAL ) Anybody who , as a result of defamation , suffers real damage or loss of profit may claim compensation .

( CARDINAL ) The same shall apply if anyone disseminates allegations which jeopardise a person ’s reputation , income or livelihood , the untruth of which was known or should have been known to him or her . In this case there is also a right to claim a retraction and the publication thereof ... ”

The ORG refers to this resolution , adopted by ORG of ORG on DATE . Its relevant passages are reproduced in GPE v. GPE ( no . CARDINAL ) ( [ ORG ] , ORG . CARDINAL and GPE , § DATE , ECHR DATE ) .


The first applicant , PERSON , is a NORP national , born in DATE . She runs a family business together with the second and third applicants , PERSON PERSON and Mr PERSON . They reside in GPE . They are represented before the ORG by PERSON , a lawyer practising in FAC . The respondent Government are represented by PERSON , their Agent .

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

The applicants run a small family business . By decisions of DATE ORG found all CARDINAL applicants guilty of a fiscal offence punishable under LAW in that they had failed to pay a DATE income - tax advance on wages for their employees for DATE , in the amount of MONEY ( “ NORP ” ) . ORG imposed on each of the applicants a pecuniary penalty of ORG , to be substituted by DATE of imprisonment in case of default of payment . The penalty was imposed under LAW , stipulating sanctions for fiscal offences ( cf . distinction between “ fiscal crimes ” and “ fiscal offences ” in the “ Relevant domestic law ” below ) .

The applicants lodged an appeal against this decision with ORG , arguing that the first - instance authority had wrongly instituted the fiscal proceedings against them as no criminal offence had been committed and that , in any event , the legal classification of the offence should be changed to a more lenient one . They submitted that as soon as they had noticed their error they had informed ORG and , on DATE , had paid the income tax in arrears with the statutory interest due . Therefore , the ORG had not sustained any loss . In their submissions , their conviction was a result of an overly formalistic , impractical and unreasonable approach of the tax authorities to the business activities and the tax obligations resulting therefrom .

On DATE the ORG dismissed their appeals and upheld the contested decisions . No further appeal lay in law against this decision .

The DATE LAW ( Ustawa Karna Skarbowa ) , applicable at the material time , distinguished CARDINAL types of wrongful acts in the area of fiscal law : “ fiscal crimes ” and “ fiscal offences ” ; fiscal offences being a category of less serious acts .

LAW defined fiscal crimes as wrongful acts punishable by imprisonment , limitation of liberty or a fine between PLN CARDINAL and PLN CARDINAL,CARDINAL,CARDINAL . By virtue of LAW , additional sanctions could be imposed for fiscal crimes such as : deprivation of civil rights , prohibition to exercise certain activities , confiscation of an object , and publication of the court judgment by which the offender was convicted .

Articles CARDINAL and CARDINAL of LAW defined fiscal offences as wrongful acts punishable by a “ pecuniary penalty ” ( as distinguished in terminology from “ fine ” ) MONEY . Under LAW , the additional sanction of confiscation of an object could also be imposed for a fiscal offence where the LAW expressly provided therefor .

Under LAW , certain provisions of LAW of DATE , defining general notions of criminal responsibility , were applicable in proceedings concerning fiscal offences . The provisions in question concerned , inter alia , the definition of a punishable act , the prohibition of retroactivity , the definition of intentional and non - intentional offence , the age limit for liability , notions of attempted offence and aiding and abetting , the circumstances justifying exclusion of criminal liability , and the principles applicable to the determination of criminal sanctions .

As provided by LAW , when pecuniary penalty exceeding ORG CARDINAL is imposed , it may be substituted by DATE imprisonment in default of payment .

Pursuant to LAW , the courts were competent to examine cases concerning fiscal crimes punishable by imprisonment or limitation of liberty . Under LAW , cases concerning fiscal crimes in which only fines could be imposed , and cases concerning fiscal offences , were examined by fiscal administrative boards .

Article CARDINAL of the Act stated that decisions given in proceedings concerning fiscal crimes and offences could be appealed against if the law so provided . The remedies were the following : an appeal , a request that the case be examined by a court , and an appeal against interlocutory decisions .

Under LAW , in cases concerning fiscal crimes , a party to the proceedings could choose between an appeal to a higher administrative authority or a request that the case be examined by a court . An option to use one remedy barred the use of the other . In proceedings concerning fiscal offences , however , only an appeal to a higher administrative authority could be lodged .

On DATE a legislative amendment to LAW was adopted to the effect that the demand that the case be examined by the court became available also with respect to fiscal offences . It entered into force on DATE .

Subsequently , with effect as of DATE , the new LAW replaced the DATE LAW . According to the new law , the courts are competent to examine all cases concerning fiscal crimes and fiscal offences .

On DATE , the new LAW entered into force in GPE . Article CARDINAL § CARDINAL of the LAW provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

At the material time , the complaint had to be lodged within DATE from the date on which the individual decision was served ( Article CARDINAL § CARDINAL of ORG ) . This time - limit was extended to DATE with effect as of DATE . Article CARDINAL of the LAW , insofar as relevant provides as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . Where a judgment has financial consequences not provided for in the ORG , the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned , after seeking the opinion of ORG .

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a legally effective judgment of a court , a final administrative decision or settlement of other matters was issued , shall be a basis for re - opening proceedings , or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings . ”

Article CARDINAL of LAW , as amended by LAW , provides , insofar as relevant , as follows :

“ The Minister of Finance , in the exercise of his supervisory powers , shall , ex officio or upon request , amend or quash a final decision ... rendered on the basis of the legal provision which was found by ORG to be in contravention of the LAW , international agreement or statute .... ”

Article CARDINAL § CARDINAL of LAW , provides , insofar as relevant :

“ ORG should discontinue the proceedings ... when :

normative act challenged ... lost its binding force before the judgment of ORG was delivered . ”

With effect as of DATE , an amendment was introduced which allows ORG to continue the proceedings if it considers it necessary for the protection of constitutional rights and freedoms .

Article CARDINAL § CARDINAL of the LAW provides :

“ Within DATE of the day on which the LAW comes into force a judgment of ORG of the non - conformity with LAW of statutes adopted before its coming into force shall not be final and shall be required to be considered by the PERSON which may reject the judgment of ORG by a CARDINAL majority vote in the presence of CARDINAL of the statutory number of Deputies . The foregoing provision shall not concern judgments delivered by ORG upon requests for preliminary rulings . ”

It was controversial among legal writers in GPE whether the PERSON was also empowered to reject judgments delivered upon individual complaints as this category was not expressly excluded from the scope of this provision . The issue had not arisen in practice as the PERSON has never rejected ORG judgments on individual complaints and the transitional period of DATE , referred to in the above provision , expired on DATE .