No violations of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and is currently serving a life term in FAC .

On DATE the applicant was arrested on suspicion of having abducted a person . On DATE he was charged with that offence . In DATE he was charged with murdering QUANTITY police officers , and on DATE with CARDINAL other offences .

On an unspecified date in DATE the prosecuting authorities submitted an indictment against the applicant to ORG . However , on DATE the judge rapporteur referred the case back to them , citing irregularities in the manner in which some of the charges and evidence had been presented to the applicant .

On DATE the prosecuting authorities submitted to ORG an indictment against the applicant and CARDINAL others . The charges included the murder of QUANTITY police officers , several attempted murders , robberies , thefts , unlawful deprivation of liberty , and unlawful possession of firearms . On DATE the judge rapporteur set the case down for trial over DATE in DATE .

The Sofia City Court held CARDINAL hearings DATE and DATE , and on the latter date convicted the applicant of aggravated murder , hooliganism , attempted armed robbery , deprivation of liberty and unlawful possession of firearms , and acquitted him of the other charges . It sentenced him to life imprisonment without commutation and ordered that he should begin serving his sentence under the strictest prison regime ( the so - called “ special regime ” – see paragraph CARDINAL below ) .

On appeal , ORG held CARDINAL hearings , the last of which took place on DATE . On DATE it partly quashed the lower court 's judgment , acquitting the applicant of CARDINAL of the charges of attempted armed robbery and of the charges of unlawful possession of firearms , and re - qualifying one of the other charges . It upheld the remainder of the judgment , including the applicant 's sentence .

On DATE ORG partly quashed ORG judgment and remitted the case to that court for reconsideration of the charges of attempted robbery . It upheld the remainder of the judgment , including the applicant 's sentence .

NORP On remittal , ORG held CARDINAL hearings . On DATE , it upheld ORG judgment , acquitting the applicant of the charges of attempted armed robbery . No appeal was lodged , and the judgment became final on DATE .

On DATE the applicant was moved to the detention centre of ORG . On DATE he was transferred to FAC . DATE , he was held there as a detainee awaiting the final determination of the criminal charges against him . Since DATE , his stay in the prison has been continued on the basis of his final sentence of life imprisonment .

On DATE the prison 's governor , relying on the relevant regulations ( see paragraphs CARDINAL and CARDINAL below ) and having regard to a note in which the investigating authorities had described the charges against the applicant , his character , and their assessment of the risk that he could pose to prison staff , ordered that he be placed within an isolated group of prisoners subjected to stringent security measures and be deprived of the right to take part in communal activities . In a follow - up decision of CARDINAL DATE the governor ordered that the applicant be handcuffed each time he was separated from that group . According to the Government , the applicant was being handcuffed only when taken out of the premises occupied by the group DATE for outdoor activities , visits to the prison doctor , dentist or library , or receiving visitors or lawyers . He was allowed to exercise in a special secluded yard . The applicant contended that he was being handcuffed each time when taken out of his cell .

The applicant alleged that he was held alone in a locked cell measuring CARDINAL by QUANTITY . He could leave the cell only for his DATE onehour walk . During DATE in prison he took his walk alone . After that , he was allowed to join CARDINAL or CARDINAL other life prisoners , but was prohibited from talking to them . Since DATE , he was again taking his DATE walks alone , in a concrete enclosure covered with a wire - net and measuring CARDINAL by QUANTITY . The only other times when the applicant was allowed out of his cell were the scheduled visits to the sanitary facilities , for TIME twice a day . According to him , those were the only occasions when he could stock up on drinking water . Later , he was allowed to spend more time using the sanitary facilities . The applicant further alleged that during DATE of his stay in prison he was being deprived of CARDINAL of his DATE meals once DATE , and for an initial period of DATE he was not allowed to use his own bed sheets and pillows .

The Government disputed those allegations , saying that the applicant had not been subjected to serious isolation inside his prison group . They pointed out that , save for a limited number of restrictions flowing from the “ special regime ” to which the applicant was subjected , he enjoyed the opportunities available to all other inmates , such as the possibility to work , access to free health and dental care , access to the prison library and temple , receiving visitors , parcels , telephone calls and correspondence , etc . They cited a note drawn up by the prison 's governor , which said the following :

“ [ The applicant ] is even now extremely hostile towards the legal order of GPE . He does not accept his conviction and sentence , and considers the criminal proceedings against him to be unfair and biased . He shows complete disregard to others , and acts rudely and arrogantly when approached . Extremely mistrustful , suspicious and hostile towards all prison staff . His irascibility , undisguised cruelty and spitefulness , and constant nervous tension make him especially dangerous and unpredictable . His attitude towards the other inmates in his group does not differ markedly from the CARDINAL described above . He refuses to socialise with others , hates everything and everyone . He enters into sporadic contacts with the group 's hygienist when necessary . Refuses to take part in communal activities . On several occasions he was offered work , which he pointedly turned down . When taken out for visits and in the presence of larger groups of people , he often loudly makes negative remarks about the courts and the prison administration . He often rehearses his ' defence speech ' naked in his cell . ”

The applicant disputed those allegations and pointed out that the governor did not cite any specific facts to support them .

At the material time the regime of pre - trial detainees kept in prisons was governed by regulations issued in DATE ( ORG № CARDINAL от DATE г. за положението на обвиняемите и подсъдимите в местата за лишаване от свобода ) . In DATE those were superseded by similar regulations ( ORG CARDINAL от CARDINAL април DATE г. за положението на обвиняемите и подсъдимите с мярка за неотклонение задържане под стража ) , which remained in force until DATE .

Regulation CARDINAL(CARDINAL)(CARDINAL ) of the DATE regulations , superseded by regulation CARDINAL(CARDINAL ) of LAW , provided that detainees could be placed in a locked cell and be deprived of the right to take part in communal activities if considered a security risk . That measure could be imposed by the prison 's governor , who had to have regard to the detainee 's personal characteristics and psychological state , and to the dangerousness of the offence in relation with which he or she had been detained . Regulation CARDINAL(CARDINAL ) in fine of the DATE regulations , superseded by regulation DATE regulations , provided that detainees subjected to such measures had to be kept isolated from the general prison population each time they were taken out of their cells , for court transfers , medical treatment , receiving visitors , outdoor activities , etc .

NORP Until DATE the regime of prisoners serving a life sentence was governed by LAW ( DATE ) ( ORG за изпълнение на наказанията ) and the regulations for its implementation . In DATE and DATE these were superseded by , respectively , ORG and Pre - Trial Detention Act ( ORG за изпълнение на наказанията и задържането под стража ) and the regulations for its implementation .

NORP The regime of life prisoners was governed by sections CARDINALa-CARDINALe of LAW , added in DATE . Section CARDINALb(CARDINAL ) provided that when imposing a life sentence the court had to order the prisoner 's placement under the strictest regime , called “ special regime ” . Individuals placed under that regime were to be kept in locked single cells and subjected to heightened security and supervision ( regulation CARDINAL ) of the implementing regulations ) . Those provisions were maintained in DATE Act ( sections DATE ) , PERSON ) and CARDINAL ) ) and the DATE regulations ( regulation CARDINAL ) . Regulation CARDINAL additionally provides that life prisoners can take part in communal activities only with prisoners of the same category . Under regulation CARDINAL , they have to be kept isolated from the general prison population even when taken out of their cells for transfers , medical treatment , visits , outdoor activities , etc .

Section CARDINALb(CARDINAL ) of the DATE Act , superseded by section CARDINAL(CARDINAL ) of the CARDINAL Act , provided that , if they had good conduct , after DATE life prisoners could be placed under a lighter regime . The time spent in pre - trial detention does not form part of that period ( regulation CARDINAL ) of the implementing regulations of LAW , superseded by regulation CARDINAL of the implementing regulations of the DATE Act ) . The decision to place a life prisoner under a lighter regime is taken by a commission consisting of prison staff and various other officials ( section CARDINAL of the CARDINAL Act , superseded by sections CARDINAL and CARDINAL of the DATE Act ) . Under section CARDINAL of the DATE Act , the commission 's decisions could be challenged by the Minister of ORG . Under section CARDINAL(CARDINAL ) of the CARDINAL Act , only the decisions to place a prisoner under a stricter regime can be challenged , by way of judicial review . Once under a lighter regime , life prisoners can , under certain conditions , be placed together with the general prison population ( section DATE ) of the DATE , superseded by section CARDINAL(CARDINAL ) of the DATE Act ) .

The ORG has visited GPE CARDINAL times . PERSON was visited in DATE and DATE .

NORP The report on the DATE visit ( ORG ( DATE ) CARDINAL ) says :

“ CARDINAL . There were CARDINAL lifers at FAC at the time of the visit ; CARDINAL were being accommodated in the mainstream prison population , while the rest were held in a separate unit in the section used for disciplinary isolation ... Lifers in the separate unit were accommodated in single cells measuring QUANTITY m² ; the cells had a small barred window , set too high in the wall to afford a view out . There was integral sanitation which reduced the limited space in the cell ; however , the cells would provide adequate sleeping accommodation for CARDINAL person provided these prisoners were offered a varied programme of out - of - cell activities during the daytime .

However , in contrast to the situation observed in [ CARDINAL other prisons ] , life - sentenced prisoners in FAC lacked communal activities . They were locked up in their cells except for periods of outdoor exercise ( TIME like the rest of the inmates at FAC ) , which all but CARDINAL lifers took together . The lack of group activities is not justifiable in security terms , given that life - sentenced prisoners already exercise together . The delegation was told of plans to set up a group room for association and other activities for lifers , which would be opened in the near future . In - cell activities included watching TV and reading books from the library and a DATE newspaper ; further , CARDINAL lifers worked in their cells ( making gift bags ) . CARDINAL prisoner interviewed by the delegation complained that he had been refused permission to have a personal computer in his cell to do a computer literacy course .

The CARDINAL lifers who did not join the others for communal exercise were segregated under orders reviewed DATE . Whenever they were outside the cell , they were handcuffed , including for exercise which they took alone in a secure yard . In the ORG 's opinion , there can be no justification for handcuffing a prisoner exercising alone in a secure yard , provided there is proper staff supervision . ORG recommends that the NORP authorities review their current policy as regards the handcuffing of the above - mentioned life - sentenced prisoners , in the light of these remarks . ”

“ CARDINAL . [ A]t the time of the visit , there were CARDINAL life - sentenced prisoners at FAC . CARDINAL of [ them ] had been integrated into the mainstream prisoner population , while the remainder were being held in a separate unit ( Group CARDINAL ) .

Material conditions of detention in the lifer unit had remained basically unchanged since the DATE visit ... The installation of integral sanitation in the cells , with a shower head over the toilet and access to hot water DATE , was a positive feature ; however , as a result , prisoners had less occasions to leave their cells and interact with staff .

Some of the lifers had their own television sets and play - stations in their cells . At the time of the DATE visit , lifers had had hot plates in their cells , to cook food , which increased their sense of independence and helped to pass the time . The hot plates had reportedly been withdrawn DATE before the visit for safety reasons , and lifers had immersion coils for heating water .

DATE . As regards activities , CARDINAL notable change since the DATE visit was the entry into operation of a social room ( “ club ” ) in the lifer unit . This good facility was decorated in pleasant light colours and furnished with bookcases , a chess table with CARDINAL chairs , a larger table with CARDINAL chairs , a cupboard with games including a backgammon board , a television set with DVD player and a sink . Lifers were divided into CARDINAL subgroups on the basis of common interests ( playing cards , chess , discussing legal matters , etc . ) and each group was allowed to use the social room for TIME each weekday . At DATE , there were only the CARDINAL officers present , which made it difficult to organise activities .

Lifers who were willing to work ( CARDINAL of the CARDINAL in the lifers unit ) worked in their cells on the same kinds of piece work as was observed on the DATE visit ( e.g. putting strings on boutique bags ) .

Further , outdoor exercise for TIME per day was offered to all lifers . The delegation noted that a shelter had been provided at CARDINAL end of the exercise yard .

Despite the above - mentioned welcome introduction of a social room , which increased the amount of time spent out of the cells and in association with other prisoners , the DATE regime in the lifer unit remained monotonous . The ORG recommends that the NORP authorities strive to enhance the programme of activities provided to life - sentenced prisoners at FAC , if necessary , by increasing staffing .

Staff on the lifer unit indicated that CARDINAL of the inmates were in DATE of a life sentence and were therefore subject to particular security restrictions . The CARDINAL lifers were escorted in handcuffs and were not allowed television . It was up to the Director to review the use of handcuffs , but there was no time limit on their use and no regular review period .

As already stated in the report on the DATE visit , the ORG considers that there can be no justification for routinely handcuffing a prisoner within a secure environment , provided there is proper staff supervision . ORG recommends that the NORP authorities review the policy of handcuffing life - sentenced prisoners when outside their cells .

The ORG has in the past expressed its serious misgivings about the current legal provisions whereby lifers are systematically subjected to a strict and segregated regime for an initial period ordered by the sentencing court ( i.e. DATE ) . This approach runs counter to the generally accepted principle that offenders are sent to prison as a punishment , not to receive punishment .

The ORG does not question that it may be necessary for some prisoners to be subject , for a certain period of time , to a special security regime . However , the decision whether or not to impose such a measure should lie with the prison authorities , be based on an individual risk assessment and be applied only for the shortest period of time . A special security regime should be seen as a tool of prison management , and not be made part of the catalogue of criminal sanctions to be imposed by courts .

In many countries , lifers are not viewed as necessarily more dangerous than other prisoners ; many of them have a long - term interest in a stable and conflict free environment . Therefore , the approach to the lifer management should proceed from individual risk and needs assessment to allow decisions concerning security , including the degree of contact with others , to be made on a case - by - case basis .

Whereas lifers should not be systematically segregated from other prisoners , special provision should be made to assist lifers and other long - term prisoners to deal with the prospect of DATE in prison . In this respect , reference should be made to Rule CARDINAL of ORG which states that “ particular attention shall be paid to providing appropriate sentence plans and regimes for life - sentenced prisoners ” , taking into consideration the principles and norms laid down in ORG on the “ management by prison administrations of life - sentence and other long term prisoners ” .

Pursuant to NORP law , after DATE of their sentence , lifers are eligible for allocation within the mainstream prisoner population if they have behaved well and have had no disciplinary punishments . However , in practice , only a minority of lifers ( CARDINAL out of CARDINAL at FAC ) had found their way into the mainstream , some after many years served in the lifer unit . The ORG invites the NORP authorities to build on the success of the “ experiment ” of integrating some life - sentenced prisoners into the mainstream prison population , which should be considered as an appropriate part of the management of this category of prisoner and reinforced by legislative measures .

More generally , the ORG recommends that the NORP authorities review the legal provisions and practice concerning the treatment of life - sentenced prisoners , in the light of the above remarks . ”


Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant instituted proceedings for damages against ORG in ORG ( “ the ORG ” ) .

On DATE the court dismissed the claim as unsubstantiated .

On DATE and DATE the judgment was upheld by ORG and ORG of GPE , respectively .

NORP In DATE the applicant also instituted proceedings against her former employer , the local police department , seeking recovery of some retirement - related and other payments .

On DATE ORG found against her .

On DATE the Dnipropetrovsk Regional Court of Appeal upheld the judgment . It stated in the operative part that the applicant had the right to challenge the decision before ORG within DATE .

NORP The applicant appealed in cassation .

On DATE the ORG declined jurisdiction to consider her appeal in cassation on the ground that the case was of a “ civil ” rather than an “ administrative ” nature and therefore ORG was the correct court of cassation .

The applicant resubmitted her appeal in cassation to ORG . On DATE the latter , referring to LAW , declined jurisdiction asserting that , in fact , ORG was the appropriate forum for the case .

The relevant domestic law and documents of ORG are quoted in the judgment in PERSON and GPE v. GPE ( nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL , § § DATE , DATE ) .


Costs and expenses - claim dismissed;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed

The PERSON case was referred to the ORG by ORG ( " the Commission " ) in DATE . The case originated in an application against GPE lodged with the Commission in DATE by Mrs. PERSON .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to paragraphs CARDINAL of the ORG ’s judgment of CARDINAL DATE ( Series A no . CARDINAL , pp . CARDINAL ) .

By that judgment , the ORG held , inter alia , that there had been breach of Articles CARDINAL par . CARDINAL and CARDINAL ( article DATE , article CARDINAL) of the LAW by reason of the fact that the applicant did not enjoy an effective right of access to ORG for the purpose of petitioning for a decree of judicial separation ( points CARDINAL and CARDINAL of the operative provisions and paragraphs CARDINAL and CARDINAL of the reasons , ibid . , pp . CARDINAL , CARDINAL and DATE ) .

At the hearing of CARDINAL DATE , the applicant ’s counsel had informed the ORG that , should it find a breach of the LAW , her client would seek just satisfaction under LAW ) under CARDINAL headings : effective access to a remedy for breakdown of marriage ; monetary compensation for her pain , suffering and mental anguish ; and monetary compensation for costs incurred , mainly ancillary expenses , fees for lawyers and other special fees .

In its aforesaid judgment , the ORG reserved the whole of the question of the application of LAW ) . The Commission was invited to submit to the ORG , within DATE from the delivery of the judgment , the ORG ’s observations on that question , including notification of any settlement at which the Government of GPE ( " the Government " ) and the applicant might have arrived ( point CARDINAL of the operative provisions and paragraphs CARDINAL of the reasons , ibid . , pp . DATE ) .

The above - mentioned time - limit was extended by the President several times , on the last occasion until DATE .

On DATE , the Secretary to the Commission , acting on the Delegates’ instructions , transmitted to the registry copies of correspondence setting out in detail the course of negotiations between the ORG and the applicant and revealing that the applicant had rejected a " without prejudice " offer by the ORG to pay to her MONEY in full and final satisfaction of her claims . At the same time , the Secretary stated that the Delegates were of opinion that there was no useful basis on which efforts to reach a settlement could be pursued and that they submitted to ORG that an award under LAW ) should be made " on the basis of the above offer " .

By letter of CARDINAL DATE , ORG informed the Deputy Registrar , inter alia , that the Government consented to an award of £ MONEY . On DATE , the Secretary to the ORG transmitted to the ORG a telex received from the applicant ’s legal representative indicating that the applicant did not consider this amount to be fair and reasonable and requested an award in line with her earlier submissions ( see paragraph CARDINAL below ) . On DATE , the Agent wrote to the Registrar to advise him that , although her Government disputed the applicability of LAW ) to the present case and although they considered a sum of £ MONEY - which they had initially offered by way of settlement - to be an adequate award , they remained willing to consent to an award of £ MONEY .

During the course of the negotiations , proposals for a settlement had been put forward on the applicant ’s behalf which may be summarised as follows :

a ) Mrs. PERSON sought an undertaking from the Government to indemnify her against any future legal costs and expenses reasonably incurred in pursuing before the NORP courts the remedy of judicial separation ( " the domestic costs " ) .

b ) Compensation was requested in respect of :

- travelling and miscellaneous expenses : CARDINAL ;

- loss on re - housing : £ CARDINAL ;

- legal costs and expenses referable to the proceedings before LAW ( " the GPE costs " ) : £ MONEY .

c ) It was alleged that Mrs. PERSON had suffered severe mental anxiety and that her own and her children ’s health had been adversely affected ; further , her inability for financial reasons to obtain a maintenance or garnishee order in ORG was said to have caused her constant financial difficulties , to have obliged her to take unsuitable employment and to have resulted in her children ’s being denied normal educational facilities and opportunities . The applicant ’s solicitors suggested a figure of £ MONEY in respect of this item .

On DATE , Mrs. PERSON applied , under ORG introduced in GPE on DATE , for legal aid in order to petition for judicial separation . However , the competent office informed her on DATE that she appeared to be ineligible on the basis of the means test .

On DATE , the Secretary to ORG informed the Registrar that , should the applicant not be granted legal aid , the Delegates would regard it as an important element in any award under LAW ) that her legal costs for a separation action be underwritten by the ORG . The Secretary also transmitted to the registry a copy of a letter received from the applicant ’s solicitors , Messrs. PERSON O’Connor and Company , in which they requested that , if she were denied legal aid , she should be awarded an additional sum to enable her to instruct solicitor and counsel to represent her in separation proceedings .

On DATE , the Agent of the Government wrote to the Registrar in the following terms .

In the light of the information provided by PERSON , O’Connor and Company indicating that Mrs. PERSON , whose financial position appears to have improved since the events which gave rise to the ORG ’s judgment in her case , may not be granted legal aid under the Scheme and in view of the course of the proceedings in this particular case , my Government has decided to underwrite her reasonable costs of retaining Solicitor and Counsel for the purpose of taking proceedings for a legal separation , such costs to be taxed as between solicitor and client ( i.e. independently assessed by ORG ) in default of agreement thereon between Mrs. PERSON and the Government .

The Secretary to ORG transmitted to the Registrar on DATE a copy of a letter of DATE from ORG and Company , which read :

" ... We quote from our client ’s letter of instructions to us ‘ I accept the ORG ’s offer of costs for my legal separation but reject their offer of CARDINAL ORG etc . , from which you will see that we will be instituting proceedings against Mr. PERSON on behalf of Mrs. PERSON claiming a legal separation and relying on the Government ’s undertaking to underwrite our client ’s costs in the matter .

In accordance with a request by the President of the ORG , the Secretary to the ORG filed certain documents with the registry on DATE .

Having consulted , through the Registrar , the Agent of the Government and the Delegates of the Commission , the ORG decided on DATE that there was no call to hold oral hearings .

Mr. O’Donoghue , the elected judge of NORP nationality who had taken part in the adoption of the judgment of DATE and whose term of office expired on DATE , was in principle called upon to continue to sit in this case ( Article CARDINAL par . CARDINAL of LAW par . CARDINAL of ORG ) ( article DATE ) . However , on account of his inability to attend , his place was taken by his successor , Mr. PERSON .


Elisabeth Palm;Gaukur Jörundsson;Nicolas Bratza

The applicant is a NORP citizen born in DATE and residing in GPE , GPE , GPE .

A.

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

The applicant was appointed an executor and beneficiary under the will of the deceased B , a freemason , who died in DATE . This professionally drawn will , dated DATE , left a large part of the estate to the applicant subject to a life interest in the residuary estate to B ’s brother , PERSON applicant states that B told him that P was also a freemason . The Government have provided a letter from ORG of GPE stating that they had no trace of P as a member .

On DATE , B made a manuscript codicil endorsed on the back of a photocopy of the will by which he purported to revoke the will without making any other will in its place . It was purportedly witnessed by CARDINAL persons present at the time . The applicant complained to the police about the codicil after B ’s death but the police did not find any evidence of criminal conduct .

P applied to ORG for a declaration that the will had been validly revoked . The applicant states that he wished to produce in evidence tape recordings of a phone conversation between , amongst others , B and a friend . Although the tapes were not produced , a transcript of CARDINAL tape appears in one of the police statements which was before the judge . CARDINAL of P ’s witnesses were freemasons . The evidence before the court made reference to B ’s involvement in freemasonry . In his application , the applicant alleged that P ’s counsel and solicitor were also freemasons . The Government have provided letters from both in which they stated that they were not , and never had been , freemasons .

On DATE , the deputy ORG judge , Mr PERSON , declared that the will had been validly revoked by the codicil , ordered that letters of administration be granted to P and ordered the applicant to pay P ’s costs . The result of this order was that B died intestate and the entirety of his estate passed to P. The applicant had been legally represented until shortly before the trial when he dispensed with legal assistance and conducted his case in person before the judge .

P died on a date unspecified in DATE , leaving no surviving children or spouse .

The applicant appealed to ORG , claiming inter alia that the evidence as to the attestation of the will was inconsistent , that the judge disallowed the admission of tapes in evidence , that P failed to disclose documents or did so at a late stage , that the judge did not explain why he made a costs order and that the judge erred in concluding that the codicil was validly executed , that B knew what he was signing and that he was not the victim of undue influence .

In its decision of CARDINAL DATE , ORG ( Lord Justice Rose , Lord Justice PERSON and Lord Justice PERSON ) found that there were no flaws in the judge ’s essential findings or conclusion . Further it was noted that the applicant had not made any formal application for the admission of the tapes in evidence but that in any event it appeared unlikely that this would have influenced the trial judge CARDINAL way or the other . ORG unanimously held that there was no substance to the appeal and made an order for costs against the applicant . On DATE , ORG refused leave to the applicant to appeal to ORG .

On DATE , the applicant petitioned ORG for leave to appeal upon similar grounds . This was rejected by ORG on DATE .

The applicant alleges that he subsequently learnt that the trial judge was a freemason , and received confirmation that CARDINAL of ORG judges Lord Justice PERSON was also a freemason . At the time of the hearing the applicant states that there would have been no means of discovering this . A letter provided by the Government indicates that the applicant was aware of Lord Justice PERSON ’s membership by DATE at the latest .

In his letter dated DATE , Lord PERSON ( now a Law Lord in ORG ) did not recall being aware that either the deceased or plaintiff was a freemason but even if it was mentioned in the papers it would have made no impression on him . He pointed out that there were CARDINAL lodges in GPE and CARDINAL masons , the overwhelming majority of whom were complete strangers . As masons , they shared common interests , as did those who played golf or collected stamps . They owed each other no special obligations that they did not owe to others . They acknowledged the claims of charity but beyond this the notion that masons were obligated to support each other or protect each other ’s property was a complete myth .

In his letter dated DATE , PERSON recalled that he was aware during the proceedings that B had been a freemason as it had received fleeting mention . He also recalled that there were references in the documents to CARDINAL or CARDINAL witnesses being freemasons . He was not aware that P was alleged to be a freemason . However , this aspect was never an issue of feature in the case . At no time did it appear to him to have such a bearing or connection with the case as to call for a declaration of interest .

B. Relevant domestic law and practice

Freemasonry in GPE

According to a Parliamentary Home Affairs ORG report ( see below ) , freemasonry is a predominantly social organisation which plays a significant role in charitable activities , donating MONEY per year to charitable causes . In their evidence to ORG , ORG estimated their active lodge membership as CARDINAL .

NORP belong to a lodge , each lodge having on average CARDINAL members . Lodge meetings typically consist of a social dinner and the acting out of a series of CARDINAL - act plays by members . Members take an oath to abide by particular principles , including obedience to God and the law , the practice of morality and charity and basic principles of good citizenship . Members also take oaths of mutual support . In its written evidence to ORG , ORG stated that a PERSON ’s duty as a citizen must always prevail over any obligation to other NORP .

Although in the past , freemasons adopted an attitude of secrecy , since DATE there has been a change . Freemasonry now publishes leaflets , its rule book and DATE book . Nor is there any obligation on a freemason to keep his membership of the organisation secret .

Freemasonry and the judiciary

In a Memorandum from the Lord Chancellor ’s Department to ORG entitled “ PERSON in the NORP ” dated DATE it was stated :

“ CARDINAL.CARDINAL . Judges ... are bound by the judicial oath which they take on appointment ...

In honouring this oath , a judge can be expected to have full regard to the law on disqualification on grounds of interest or bias . Recent authority on this area of the law can be found in the judgment of ORG case of NORP v. PERSON [ DATE ] ORG .

The law as elucidated in NORP v. PERSON disqualifies a person automatically from taking a judicial decision if she or he has any pecuniary or proprietary interest in the outcome of the proceedings . Where a judge has an interest other than a pecuniary or proprietary one , the law disqualifies him or her from adjudicating in any cases where circumstances point to a “ real danger ” ... of bias in relation to a party or an issue involved in the case , each case falling to be considered on it own facts .

If a judge finds that he is acquainted with , or has any other sort of relationship with , a person involved in a case or with the subject matter of the case , then the judge must consider whether the nature of the relationship would ... be such as to create a real danger of bias . This would apply to an acquaintance or relationship resulting from membership of the freemasons just as it would to any other sort of relationship . If the judge sitting decides that the relationship would be regarded as creating a real danger of bias , then the judge should disqualify himself from adjudicating on the matter ...

The judicial oath overrides any commitment which might be made as part of a person ’s membership of the freemasons , and the Lord Chancellor has no reason to believe that freemasons who take the judicial oath can not be relied upon to honour it . ”

In DATE , the Parliamentary Home Affairs Select Committee published a report entitled “ PERSON in the Police and the Judiciary ” which concluded , inter alia :

“ The ORG conclude that , when the oaths are read in context , there is nothing in them that would appear sinister ; and nothing in the evidence we have heard that would show a conflict between the oath taken by a judge or policeman and that taken by a freemason .

We do not believe that there is anything sinister about freemasonry , properly observed , and are confident that freemasonry itself does not encourage malpractice . ” ( paragraph CARDINAL )

“ It is obvious that there is a great deal of unjustified paranoia about freemasonry and we have no wish to add to it ... We believe however that nothing so much undermines public confidence in public institutions as the knowledge that some public servants are members of a secret society CARDINAL of whose aims is mutual self - advancement - or a column of mutual support to use the masonic phrase ... The solution is disclosure . We recommend that police officers , magistrates , judges and crown prosecutors should be required to register membership of any secret society and that the record should be available publicly . However , it is our firm belief that the better solution lies in the hands of freemasonry itself . By openness and disclosure , all suspicion would be removed and we would welcome the taking of such steps by ORG . ” ( paragraph CARDINAL )

The Government responded to the ORG by announcing on CARDINAL DATE the setting up of a voluntary register . New recruits to the judiciary would be required to register their membership of the NORP . The ORG Secretary stated that he would be requesting existing judges to join voluntary registers . The Government would address the need for legislation having regard to the extent of compliance with voluntary registers .

According to the Government ’s provisional figures , PERCENT of the professional judiciary have responded to the invitation to declare whether they were freemasons or not . Of those that responded , PERCENT declared themselves to be freemasons .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

The applicant is the owner of an apartment in GPE , which she had let to M.A.H. on DATE .

In a writ served on the tenant on CARDINAL DATE the applicant informed the tenant that she intended to terminate the lease and summoned the tenant to appear before ORG .

By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises must be vacated by DATE .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on CARDINAL DATE .

DATE and DATE the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as , under the statutory provisions providing for the staggering of evictions , the applicant was not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant repossessed the premises with the assistance of the police .

The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , CARDINAL , § § DATE , ORG CARDINAL-V.


CASE OF FOLDES AND FOLDESNE HAJLIK v. HUNGARY

Violation of P4-2-2 in respect of the first applicant;Remainder inadmissible;Non-pecuniary damage - financial award

András Baka;Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa

The applicants were born in DATE and DATE respectively and live in LOC .

On DATE a company , ORG , laid charges of fraudulent bankruptcy and other offences against the applicants , then a married couple . Subsequently , ORG instituted criminal proceedings against the first applicant . On DATE he was questioned as a suspect .

On DATE the ORG prohibited the alienation of the applicants’ real property and their cars . On DATE ORG upheld this measure , observing that it was justified because it pursued the aim of guaranteeing the satisfaction of claims brought by the potential civil parties .

Meanwhile , on DATE the proceedings were extended to include the second applicant as a defendant .

On DATE ORG withdrew the first applicant ’s passport until the termination of the criminal proceedings , under sections CARDINAL and CARDINAL of LAW ( Law no . DATE ) , in order to secure his availability for trial . That decision was confirmed by the Minister of the ORG on DATE .

On DATE ORG preferred a bill of indictment against the applicants , charging them with fraudulent bankruptcy and other offences .

Meanwhile , the first applicant requested ORG to review the administrative decision ordering the withdrawal of his passport . On DATE ORG upheld that decision , which in its view had been delivered in accordance with the law .

After QUANTITY hearings DATE and DATE , on DATE ORG convicted the applicants and sentenced them to DATE and CARDINAL months’ imprisonment and DATE and CARDINAL months’ imprisonment respectively , these sentences being suspended for DATE . The court relied on the testimonies of witnesses , extensive documentary evidence and the opinion of CARDINAL experts . In its reasoning , it appreciated , as a mitigating factor , the “ very long time ” which had elapsed since the commission of the offences , finding that this delay could not be imputed to the applicants .

NORP On appeal , on DATE , the Borsod - Abaúj - Zemplén County ORG quashed ORG judgment on account of a serious procedural shortcoming and remitted the case to the first - instance court .

NORP In reply to a request by the applicants to have the case file photocopied , on DATE ORG invited them to specify which particular elements they wished to have copied . The court pointed out that the photocopying of the whole case file , which contained CARDINAL pages ( and was in any event available for personal consultation in its entirety ) , was impossible and also unnecessary , given that many documents were of little relevance .

In the resumed proceedings , CARDINAL hearings were held DATE and DATE .

On CARDINAL DATE ORG convicted the applicants of the offences of breaching accountancy rules ( punishable by up to CARDINAL years’ imprisonment under LAW ) and of fraudulent bankruptcy ( punishable by up to MONEY imprisonment under LAW ) , and fined them each MONEY .

On DATE the FAC dismissed an appeal by the applicants . It ordered that the measures attaching the applicants’ assets be discontinued .

On DATE ORG review bench quashed the second - instance judgment and remitted the case to ORG .

In the resumed second - instance proceedings , on DATE ORG upheld in essence the applicants’ convictions and fines . It dismissed the civil party ’s claims and lifted the prohibition on the alienation of the applicants’ assets . In its reasoning , it reiterated :

“ [ I]n the process of imposing ‘ legal detriments’ [ joghátrány ] , the courts fully recognised the extraordinarily protracted nature of the proceedings as an important mitigating factor , and appreciated this circumstance when determining the punishments . ”

NORP In reply to a complaint in the applicants’ appeal concerning the non - attendance of the experts at the court hearings , the court observed that their opinions had been added to the case file , since they had been extensively presented at the hearing on DATE . Despite an invitation by the court to do so , the applicants did not comment in writing on those opinions in the ensuing proceedings . Given that the opinions had at all times been available to the defence , copies had been dispatched to the parties , and the opinions had been explained at a hearing , the court was satisfied that the principle of “ direct and oral proceedings ” had not been infringed . In any event , it was convinced that , given the complexity of the case and the extensiveness of the opinions ( amounting to several volumes ) , any meritorious criticism thereof would only have been possible in writing and the experts – whose views were otherwise essentially convergent DATE could likewise have reacted to such criticism in writing .

The judgment became final on DATE .


Violation of Art. 6-1 by reason of lack of fair hearing;Violation of Art. 6-1 by reason of refusal of right of access to court;Violation of P1-1;Just satisfaction reserved

L. Mihai;Luzius Wildhaber;Nicolas Bratza

In DATE the applicant ’s parents had a house built in GPE . DATE they let the ground floor to the PERSON brothers , the uncles of the third party intervening in the case , Mr PERSON .

NORP In DATE the ORG took possession of the applicant ’s GPE house in GPE , allegedly under Decree no . CARDINAL on nationalisation . The applicant ’s parents were never informed of the grounds or legal basis for that deprivation of property . They were , however , allowed to continue to live in CARDINAL of the flats in the house as tenants of the ORG .

In DATE , pursuant to Law no . CARDINAL/CARDINAL , the ORG sold the Mirescu brothers the flat which they had hitherto occupied as tenants . The intervener , Mr PERSON , and his sister , ORG , inherited the flat in DATE . After his sister ’s death in DATE the intervener was left as the sole successor in title to the flat .

In DATE the applicant , as the beneficiary of his GPE estate , brought an action in ORG ( “ ORG ” ) seeking a declaration that the nationalisation was null and void on the ground that Decree no . CARDINAL/CARDINAL provided that the property of employees could not be nationalised and his parents had been employed at the time of the nationalisation of their house . It is not clear from the documents before the ORG whether the applicant informed ORG of the sale by the ORG to the Mirescu brothers in DATE .

In a judgment of DATE ORG held that the nationalisation of the applicant ’s GPE house under Decree no . ORG had been a mistake , as his parents had belonged to a category of persons whose property the decree exempted from nationalisation . The court went on to hold that the ORG had obtained possession by duress and so could not rely on prescription to establish title . It also ruled that the ORG could not have acquired title to the house under Decree no . TIME or Decree no . CARDINAL/CARDINAL since those instruments had been contrary to LAW and DATE respectively . The court therefore ordered the administrative authorities DATE namely the mayor of GPE and a ORG - owned company , ORG , which managed ORG - owned housing DATE to return the house to the applicant .

No appeal was lodged and the judgment became final and irreversible since it could no longer be challenged by way of an ordinary appeal .

On DATE the mayor of GPE ordered the house to be returned to the applicant and on DATE the C. company complied .

As of that date the applicant ceased to pay rent on the flat he was occupying in the house .

The applicant began paying land tax on the house on DATE and continued doing so until DATE ( see paragraph CARDINAL below ) .

On an unknown date the Procurator - General of GPE , acting at the instance of Mr PERSON , lodged an application ( recurs în anulare ) with ORG to have the judgment of DATE quashed on the grounds that ORG had exceeded its jurisdiction in examining the lawfulness of the application of Decree no . CARDINAL/CARDINAL .

The hearing before ORG was set down for DATE . Mr PERSON was not invited to take part in the proceedings . On DATE of the hearing , the applicant requested an adjournment as his lawyer was absent through illness .

ORG refused that request and proceeded to hear oral argument , after which it reserved judgment until DATE , the applicant being ordered to file written submissions before that date .

In those submissions , the applicant requested ORG to dismiss PERSON application . He argued , first , that Decree no . ORG had been incompatible with the DATE LAW , both in that it had been published only in part and in that it had breached the principle that no expropriation should be effected save in the public interest and after payment of fair compensation . Secondly , he submitted that , since his parents had been employees at the time of the nationalisation , the decision to nationalise their house had contravened the terms of the decree , which provided that dwellings belonging to employees could not be nationalised . Lastly , the applicant relied on LAW of DATE , which guarantees unrestricted access to the courts .

On DATE ORG quashed the judgment of DATE and dismissed the applicant ’s claim . It held that property could be acquired by way of legislation , noted that the ORG had taken the house on DATE on which Decree no . CARDINAL/CARDINAL on nationalisation had come into force and reiterated that the manner in which that decree had been applied could not be reviewed by the courts . Accordingly , ORG could not have found that the applicant was the rightful owner of the house without distorting the provisions of the decree , thus exceeding its powers and encroaching on those of the legislature . ORG confirmed that former owners were entitled to bring actions for recovery of possession but held that the applicant in the case before it had not established his title , whereas the ORG had demonstrated title under the nationalisation decree . In any event , provision as to redress for any wrongful seizure of property by the ORG would have to be made in new legislation .

Thereupon , the tax authorities informed the applicant that the house would be reclassified as ORG property with effect from DATE .

On an unspecified date the applicant lodged an application for restitution with the administrative board established to deal with applications lodged in GPE pursuant to Law no . DATE ( “ the ORG ” ) . He submitted that he had been dispossessed of his house in DATE in breach of Decree no . CARDINAL/CARDINAL on nationalisation ; that ORG had held that that deprivation of property had been unlawful in a final judgment of DATE ; and that he was therefore entitled to be reinstated as the owner of the whole house .

In a report drawn up in DATE the valuation board established under PERSON no . NORP valued the applicant ’s house at MONEY ( ROL ) , of which the flat occupied by the applicant accounted for ROL CARDINAL,CARDINAL,CARDINAL .

On DATE the ORG vested ownership of the flat rented by the applicant in him and awarded him financial compensation for the rest of the house . Having regard to section CARDINAL of Law no . CARDINAL , which put a ceiling on compensation , and to the ceiling applicable in DATE – ROL CARDINAL,CARDINAL,CARDINAL – the ORG awarded him ROL CARDINAL .

On DATE the applicant challenged that decision in ORG , attacking the ORG ’s refusal to return the whole house to him and pointing out that no grounds for that refusal had been given . He argued that in his case , where there had been an unlawful deprivation of property , PERSON no . DATE which concerned lawful expropriations – did not apply . Accordingly , his only means of protecting his right of property was an action for recovery of possession . However , since he had already brought such an action , and since ORG , in a final judgment of DATE , had held him to be the owner of the house , he believed himself to be debarred from bringing a fresh action for recovery of possession . Consequently , he sought a declaration that he was the owner of the whole house and stated that he was not seeking compensation under PERSON no . LANGUAGE .

That application was dismissed on DATE . The applicant appealed and the proceedings are currently pending in ORG .

LAW provides :

“ Everyone shall be entitled to apply to the courts for protection of his rights , freedoms or legitimate interests .

The exercise of this right shall not be restricted by any statute .

The relevant provisions of this LAW read :

“ The Procurator - General may , of his own motion or on an application by the Minister of ORG , apply to ORG for any final judicial decision to be quashed on any of the following grounds :

NORP that the court in question has exceeded its jurisdiction ;

NORP ... ”

“ An application for a judicial decision to be quashed may be made at any time . ”

Article CARDINAL was amended as follows :

“ Article CARDINAL : An application under LAW for a judicial decision to be quashed may be made within DATE on which the judicial decision in question becomes final ... ”

The relevant provisions of this decree read :

“ ... in order to ensure the proper management of dwellings which wealthy capitalists and exploiters who possess a large number of properties have allowed to fall into dilapidation as a means of sabotage ; [ and ]

In order to deprive exploiters of an important means of exploitation ;

The immovable property appearing in the schedules ... annexed to and forming part of this decree shall be nationalised . The listed property comprises :

immovable property belonging to former industrialists , owners of large estates , bankers , owners of large trading enterprises and other representatives of the wealthy capitalist class ;

immovable property belonging to real - estate exploiters ... ”

“ The immovable property of workers , civil servants , small artisans , persons working in intellectual professions and retired persons shall be excluded from the scope of this decree and shall not be nationalised . ”

“ Subject to its obligation to apply the criteria laid down ... in LAW [ of Decree no . MONEY ] , the ORG may amend the annexes [ containing the schedule of immovable property to be nationalised ] to [ that ] decree .

The ORG may also decide not to apply the nationalisation provisions to any flat or [ other ] immovable property . ”

In a number of cases ORG of ORG upheld judgments of lower courts asserting their jurisdiction to deal with claims concerning immovable property that had been nationalised , including property nationalised under Decree no . CARDINAL/CARDINAL . In a judgment of DATE ( no . CARDINAL ) , for instance , it held , on the issue whether the courts had power to deal with cases concerning the application of Decree no . CARDINAL :

“ ... in ruling on the applicant ’s claim for recovery of possession , and in allowing it , the courts , which have general jurisdiction under the law to determine civil disputes , merely applied the terms of the decree . To be more precise , they applied those of its provisions that forbid the nationalisation of certain immovable property and those which require such property to be returned in the event of an erroneous or improper application of the decree . ”

On DATE the full ORG decided by a majority of CARDINAL to twenty to depart from ORG previous decisions , holding :

“ [ T]he courts do not have jurisdiction to impugn Decree no . ORG or to order that property nationalised under its provisions be returned ... ; legislation alone can bring the nationalisations carried out under Decree no . CARDINAL/CARDINAL into accord with the provisions of the present LAW concerning the right of property ... ”

On DATE the full ORG of Justice unanimously decided to depart from its ruling of DATE that the courts did not have jurisdiction in matters concerning infringements of the right of property committed DATE . It held :

“ [ T]he courts have jurisdiction to entertain any action concerning an alleged infringement of the right of property or other rights in rem where such an infringement occurred DATE . ”

On DATE ORG ruled on the constitutionality of a bill to regulate the legal status of residential property which had passed into ORG ownership . As to whether the owners of immovable property which the ORG had vested in itself improperly or without legal authority could sue for return of their property or obtain compensation , it held :

“ ... The situation is different in relation to dwellings which became ORG property through an unlawful administrative act or simply de facto – that is to say without any legal authority , the ORG ’s ownership having no basis in law . In such cases the individual ’s legal right to the property has never been extinguished , with the result that , since the ORG is not the owner , such property can not be covered by a statute whose object is to regulate the legal status of dwellings which have passed into ORG ownership . In other words , ... the measures which the bill before us seeks to introduce are not applicable to dwellings not legally vested in the ORG .

If the bill were to treat the ORG as owning immovable property which it had taken without legal authority , it would be conferring ownership on the ORG retrospectively , or else introducing a mechanism not envisaged by the DATE LAW for transforming individual ownership into ORG ownership , and that can not be accepted .

It follows that this ORG must allow the objection that this part of the bill , in so far as it deals with immovable property taken without legal authority by the ORG or other artificial persons , is incompatible with the LAW ...

It is for ORG to decide , when amending the bill , whether to make provision for persons who have been deprived of their dwellings by the ORG without legal authority , or for the successors in title of such persons , to be able to benefit from the LAW if they choose not to embark on the slow , uncertain and costly course of bringing an action for recovery of possession ... ”

NORP The relevant provisions of this Act read :

“ Individuals who formerly owned residential property which passed lawfully into the ownership of the ORG or of another artificial person after DATE and which was still in the possession of the ORG or another artificial person on DATE shall be entitled to benefit , by way of reparation , from the measures in this LAW .

The provisions of this Act shall apply equally to the successors in title of such former owners , subject to existing statutory provisions . ”

“ The persons referred to in LAW shall be entitled to restitution in the form of the restoration to them of the ownership of flats in which they currently live as tenants or which are vacant . In respect of other flats , those persons shall receive compensation as provided in LAW ”

“ The amount of compensation to be awarded to former owners or their successors in title in respect of flats which have not been returned to them , or the sale price of such flats , as the case may be , shall be determined in accordance with Decree no . CARDINAL , legislative Decree no . GPE and Law no . CARDINAL/CARDINAL . The value of the appurtenant land shall be determined according to the criteria ( Document DATE of CARDINAL DATE ) for identifying and valuing land held by ORG - owned commercial companies ... The values so determined shall be converted to present - day levels by means of multipliers which may not be lower than the rate of increase in the national average salary over the relevant period .

Neither the total value of a flat which is returned nor the total amount of compensation due for a flat which is not returned and for the appurtenant land may exceed the cumulative total of the national average salary for DATE over DATE expiring on the date on which the compensation is assessed .

Where a flat whose value , calculated according to the rules laid down in the first paragraph of this section , exceeds the total referred to in the second paragraph is returned , pursuant to section CARDINAL , to its former owner , his heirs or living relatives to the second degree of consanguinity , those persons can not be obliged to pay the difference .

The amount of compensation due at DATE levels under the above provisions shall be calculated on DATE of payment , on the basis of the national average salary for DATE .

For the purpose of implementing this LAW , an extrabudgetary fund shall be established , on which ORG may draw and into which shall be paid :

( a ) the proceeds of the sale of non - returned flats , including payments in full , deposits , DATE instalments and interest ( less commission of PERCENT of the value of each flat ) ; and

( b ) the proceeds of government bonds issued for the purpose of financing the fund , as provided in PERSON no . CARDINAL/CARDINAL on public borrowing .

The above fund may be drawn on for the following purposes , in order of priority :

( a ) to pay the compensation due under the provisions of this LAW to owners or their successors in title ;

( b ) to redeem the bonds issued and cover the expenses entailed by their issue ; and

( c ) to build housing to be allocated in the first instance to tenants in the situation referred to in section CARDINAL(CARDINAL ) . ”

On DATE the government adopted decision no . CARDINAL implementing PERSON no . DATE . The decision provided that immovable property which had passed into ORG ownership under a legislative provision was to be regarded as property legally vested in the ORG . It also specified that PERSON no . DATE did not apply to immovable property held by the State where its title was not based on any legislative provision .

On DATE the government adopted decision no . CARDINAL/CARDINAL to supplement decision no . CARDINAL . Section CARDINAL(CARDINAL ) of decision no . CARDINAL/CARDINAL provided that , in order for property to be defined as having been acquired by the State under Decree no . CARDINAL/CARDINAL , it had to have been acquired in accordance with Articles I § § DATE and II of the decree and the person referred to in the lists drawn up under the decree as the owner of the property had to have been the true owner at the date of the nationalisation .

Following government decision no . CARDINAL of DATE , former owners who had succeeded in obtaining final court judgments ordering their property to be returned , only to see those judgments quashed by ORG on an extraordinary application by the ORG , brought fresh actions for recovery of possession . The plea of res judicata raised in those new actions was not treated in the same way by all courts , as appears from the following .

“ ... the property sought to be recovered has already been the subject matter of proceedings between the same parties , resulting in judgment no . CARDINAL of DATE ( now final and enforceable ) , in which this ORG found for I.P. and declared him to be the owner of the property ...

The Procurator - General applied for that judgment to be quashed and on DATE ORG did quash it and substituted its own judgment dismissing ORG ’s claim ...

... in accordance with LAW , which provides that ‘ the principle of res judicata applies where a fresh action concerning the same subject matter , based on the same cause of action , is commenced between the same parties acting in the same capacities’ , this ORG finds that there have already been proceedings between these same parties in respect of the same property and that those proceedings have been determined by ORG ...

… that being so , this ORG accepts the plea of res judicata and holds that it can not entertain the plaintiff ’s claim . ”

“ ... this ORG finds that Decree no . CARDINAL/CARDINAL was unlawfully applied to the building owned by the plaintiff ... , orders that it be returned to her and dismisses the plea of res judicata ... ”

The relevant provisions of this LAW read :

“ CARDINAL . Property acquired by the ORG DATE and DATE , provided that it passed into ORG ownership lawfully , that is to say in a manner not contrary to the LAW , to international treaties to which GPE was a party or to any legislation in force at the time at which it passed into ORG ownership , shall likewise form part of the public or private property of the ORG or other public authorities .

Save where it is governed by special reparation laws , property held by the ORG without valid legal authority , including property acquired by way of a transaction voidable for lack of true consent , may be claimed by former owners or their successors in title .

The courts have jurisdiction to determine whether or not the legal authority is valid . ”


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in GPE . He is a lawyer and President of ORG .

On DATE Mr Khodorkovskiy , a co - owner of the Yukos company , was charged with criminal offences and placed in custody . On DATE he was transferred to special - purpose remand centre IZCARDINAL/CARDINAL in GPE operating under the authority of ORG of GPE ( hereinafter “ the remand centre ” ) .

On DATE a lawyer , PERSON , accepted to represent Mr GPE in the criminal proceedings .

On DATE PERSON visited her client in the remand centre . On leaving the centre , she was stopped by a prison inspector , PERSON , who accused her of carrying unauthorised material that Mr PERSON had given her .

It appears from a personal inspection report ( протокол личного досмотра ) of the same date that Mr B. “ examined the belongings and clothing of the lawyer , Ms A. ” and seized CARDINAL documents : a printed document concerning the case against Mr GPE ’s co - defendant , and a torn handwritten note . The report was signed by PERSON and CARDINAL prison officers who were present during the search . The parties agreed that CARDINAL of them had been a man ( Mr F. ) ; the identity and sex of the second officer was in dispute : the Government claimed that it had been a woman , “ L - va ” ; the applicant insisted that it had been a man , “ L - vich ” .

The investigators claimed that the note had contained instructions about exercising influence on witnesses and interfering with the investigation . On DATE ORG asked ORG to disbar PERSON for acting in breach of the law and the lawyers’ code of ethics . The applicant , as President of ORG , publicly criticised the request by ORG .

On DATE the ORG channel invited the applicant and PERSON , the Director of ORG of ORG , to the talk show , “ The Country and the World ” ( « Страна и мир ORG ) , for a discussion of the incident involving PERSON The debate was broadcast live at TIME

NORP In TIME of the discussion the applicant asked Mr PERSON about his view on the events and the grounds for making the request for disbarment . PERSON did not give specific answers , stating that the issue was not within his competence .

The presenter then asked the applicant about the relationship between the GPE and ORG , implying that it was rather strained . The applicant denied that any tension existed and added :

“ I have to say that we have now examined the matter of lawyer PERSON There was no attempt to pass any note from Mr GPE outside the remand centre . There were no grounds for carrying out a search ( обыск ) which , by the way , was performed by men who rummaged ( шарили ) about the body of the woman lawyer . Evidence obtained by criminal or unlawful means has no legal value . There is nothing , absolutely nothing , in PERSON records that could warrant her disbarment . ”

The presenter then gave the floor to PERSON , who said that there existed a normal professional relationship between ORG and ORG . The show ended .

On DATE , remand prison PERSON and warders PERSON and PERSON lodged defamation claims against the applicant and the ORG television company with ORG of GPE . They claimed that the applicant had falsely stated that male officers had “ rummaged ” about PERSON body and carried out a “ search ” on her , whereas they had merely “ inspected ” her documents . Since the domestic law made a distinction between a “ search ” ( обыск ) and an “ inspection ” ( досмотр ) , the applicant ’s statement amounted to an allegation of a breach of the NORP law that was false and damaging both to the professional reputation of the remand prison and to the honour and dignity of its officers . They sought a rectification and compensation in respect of non - pecuniary damage .

In the defamation proceedings the ORG heard many witnesses and , in particular , the warders of the remand prison who had taken part in the incident involving counsel PERSON of them , PERSON , testified as follows :

“ I received a phone call and I was invited to take part in the drafting of a report . When I arrived , PERSON , PERSON and PERSON were in the office . PERSON was drafting the report . A. snatched a piece of paper and began tearing it apart . We removed the document [ from her ] , I signed the report and left . ”

PERSON described the way in which the documents had been removed from her :

“ I was subjected to a humiliating procedure , as a woman and as a lawyer . They took the materials of the defence away from me by force . How is it possible to take the materials , without touching me , while I was holding onto them ? ... Could there be any contact , other than bodily contact , if I was clutching the materials to my chest and the prison employees were tearing them away from me ? It was not just my hands that they touched . [ They touched ] the clothing that was covering my body . ”

In the meantime , on DATE ORG formally rejected the ORG ’s request for PERSON disbarment . It found , in particular , that the inspection ( досмотр ) carried out on the person of PERSON on DATE and the seizure of her materials had been unlawful .

On DATE the ORG gave judgment on the defamation claim , finding as follows :

“ It was established at the court hearing that on DATE a televised discussion between ... PERSON and the lawyer PERSON had been broadcast live on the ORG channel . The presenters did not edit the text of the interventions by Mr PERSON or PERSON ... PERSON was connected with the presenter via a direct link , the defendant PERSON was present in the studio . It can be seen from a video recording which the court examined ... that PERSON and the defendant made statements of a controversial nature . The participants put questions to each other and replied to questions from the presenters . ...

The court considers that the statements by the defendant [ Mr PERSON ] were simply an expression of his opinion on an event that had attracted public attention and was widely discussed at the time . During the show “ The Country and the World ” on DATE , a public official and a lawyer held a discussion in which they expressed different opinions on the same event . The statements by the defendant Mr PERSON were not offensive and did not damage the GPE honour , dignity or professional reputation . The defendant , in his reply to the presenter ’s question , did not mention either remand prison no . CARDINAL or the plaintiffs F. and B. ...

The plaintiff – remand prison no . DATE alleged a violation of the rights of individuals rather than those of prison no . CARDINAL . ... In the instant case , the statements by the defendant , PERSON , did not contain allegations about the plaintiff , remand prison no . CARDINAL , nor did Mr PERSON ’s statements damage its reputation . It follows that the claims by remand prison no . CARDINAL are unlawful and unjustified because the plaintiff seeks the rectification of allegations concerning its employees .

The claims by the plaintiffs F. and B. are likewise unjustified because the statements by the defendant did not mention any names , still less the plaintiff ’s names . Moreover , ... there was no mention of their place of work or place of residence , or of their appearance or characteristic features , their rank or their position ; the discussion was not accompanied by any photographs or video footage of the plaintiffs ; nor were their voices broadcast . It follows that the defendant ’s statements did not contain any information damaging to the honour or dignity of Mr F. or Mr B.

[ The court rejects as ] unfounded the arguments by remand prison no . CARDINAL to the effect that the discussion was preceded by footage showing a building with its postal address , which could have enabled television viewers to recognise PERSON remand prison no . CARDINAL . Neither PERSON nor PERSON mentioned remand prison no . CARDINAL in their replies . Moreover , it was the ORG channel that decided to broadcast the footage featuring the building with its address at the beginning of the show , but the plaintiffs have lodged no defamation claim against the channel ...

Having regard to the above - stated , the court finds that the claims are unjustified and must be rejected . ”

The remand centre , PERSON , and PERSON , all lodged statements of appeal .

On DATE the ORG quashed ORG judgment and granted the defamation claims by CARDINAL plaintiffs , finding as follows :

“ ... the conclusion of the [ district ] court to the effect that the statements made by the defendant in a live television show did not damage the reputation [ of the plaintiffs ] is not correct . The statements did damage the honour and dignity of the prison officers PERSON and PERSON and the professional reputation of remand prison no . CARDINAL because they actually contained an accusation that the male prison officers had searched the female lawyer in a degrading manner . ...

It can be seen from the statements by the witnesses PERSON and PERSON , the personal inspection report , and the conclusions of the Qualifications Panel of ORG that the prison officers did not carry out a search on PERSON , contrary to what PERSON alleged , but the [ district ] court did not take this fact into account ... The law distinguishes between the terms ‘ inspection’ and ‘ ORG , and the defendant PERSON , a professional lawyer , could not have been unaware of that distinction . Although he had at his disposal reliable information that the prison officers had carried out an inspection of PERSON documents rather than searched her , he made untrue statements in a live television show ...

Further , the [ city ] court can not agree with the [ district ] court ’s conclusion that the defendant [ Mr PERSON ] did not identify any of the plaintiffs by name ... That conclusion contradicted the operative part of the judgment , in which the [ district ] court found that the incident ... had taken place on the premises of remand prison no . CARDINAL and concerned the removal of a note from PERSON ... The ORG channel showed the building at CARDINAL GPE NORP Street , and the defendant Mr PERSON later made the contested statements . In those circumstances , the professional reputation of remand prison no . CARDINAL had been undermined and it had standing to seek judicial protection from defamation . The plaintiffs F. and B. , who were employees of the remand prison and who had taken part in the inspection of [ PERSON ] papers ... also had standing to sue in defamation . ”

ORG ordered the applicant to pay MONEY ( RUB ) to each of PERSON and PERSON in respect of compensation for non - pecuniary damage . The ORG channel was ordered to broadcast a rectification .

Article CARDINAL guarantees freedom of thought and expression , together with freedom of the mass media .

Article CARDINAL provides that an individual may apply to a court with a request for the rectification of statements that are damaging to his or her honour , dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness . The aggrieved person may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such statements .

A personal inspection ( личный досмотр ) or an inspection of personal belongings may be carried out with a view to uncovering instruments or objects of an administrative offence ( LAW ) . Personal inspections must be carried out by a person of the same sex , in the presence of CARDINAL attesting witnesses ( понятые ) of the same sex ( LAW ) .

A suspect in a criminal case may be subjected to a body search ( личный обыск ) ( LAW ) . Body searches must be carried out by a person of the same sex , in the presence of attesting witnesses ( понятые ) or specialists of the same sex ( LAW ) .

The Pre - Trial Detention Act ( Law no . CARDINAL of DATE ) established that , if there were grounds to suspect visitors of passing prohibited objects , substances or food , prison officers were entitled to carry out an inspection of their clothes and belongings upon their entry or exit from the prison LOC ( part QUANTITY ) .


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

NORP The applicant was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practicing in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

NORP The applicant was charged with indecent acts committed on a fiveyear old girl , following a report made by her mother on DATE . On DATE the ORG acquitted him of all charges , finding that there had been no evidence that he had committed an offence . The court noted that the girl ’s mother had testified before it that she had had a dispute with the applicant on the morning in question and had filed the complaint against him in revenge , and not because he had in fact committed any offence . She had also coached her daughter on how to testify in order to incriminate the applicant . However , the court noted that both mother and daughter had later withdrawn their statements .

The judgment was upheld by ORG on DATE . The court noted the discrepancies between the statements made on DATE by the child and her mother and the subsequent change to their statements . It also noted that a psychiatric report on the girl had shown that she was prone to adult influence , while the testimony given by the girl to the investigating authority had ended after a teacher assisting the girl had noted her difficulty in formulating phrases and logically explaining her thoughts , which had made the continuation of the interview pointless . Statements made by CARDINAL witnesses during the investigation had confirmed the girl ’s tendency to be influenced by adults , but the prosecutor had not asked for their presence at the court hearing and they had therefore not been able to be questioned about their statements .

On DATE ORG quashed the judgment of DATE and ordered a rehearing of the case by ORG . The reason for the rehearing was that the lower court had failed to directly examine all the relevant evidence , such as hearing from the victim , her representative and other witnesses , but rather had simply relied on the documents in the case file .

The victim and her mother were summoned to the hearing at ORG on DATE , but they did not appear . In the meantime , on DATE , the mother sent a letter to the court stating that she fully supported her statements and those made by her child during the investigation . She did not ask for the case to be tried in her absence .

On DATE the ORG found the applicant guilty of the crime with which he had been charged . The applicant was absent from the hearing , even though he had been summoned to attend it . He claims that he never received the summons . A court - appointed defence lawyer was present .

The court did not hear any witnesses , including the girl and her mother . After the applicant ’s conviction , the mother wrote to ORG stating that she had never received a summons for the hearing of DATE and that she withdrew her declaration of CARDINAL DATE . The applicant claimed that the letter of DATE had been written by someone else , because the mother could not write in LANGUAGE script , yet the letter had been written in LANGUAGE script . No expert report to verify whether she had written the letter was ordered .

On DATE the lawyer appointed by the applicant lodged an appeal on points of law . In his appeal , the lawyer drew the court ’s attention to the reason for which ORG had sent the case for a rehearing on DATE , namely the failure of ORG to directly examine all the evidence . However , that court had allowed the same irregularity to occur in convicting the applicant . He also submitted that the absence of the victim , the mother and other witnesses , as well as the applicant , from the court hearing of DATE had prevented the defence from properly challenging the prosecutor ’s evidence . The prosecutor had simply read out the statements made by various individuals during the investigation , and the court had ignored the statements made by the mother and daughter before the first - instance court rejecting their previously made statements . The lawyer questioned the authorship of the letter of DATE . He finally relied on LAW .

On DATE ORG upheld the judgment adopted by the lower court , finding that it had fully examined the case . The court referred to the same evidence as that examined by ORG on DATE . The parties had been summoned but had failed to appear . However , their absence from the hearing had not prevented the court from continuing to examine the case . Moreover , the mother had signed a declaration in LANGUAGE script on DATE , which proved that she could write in that script and thus could have been the author of the letter of DATE .

On DATE the applicant was conditionally released from prison , DATE and DATE before the expiry of his prison term .

After communication of the present application to the respondent Government , on DATE ORG asked ORG to reopen the proceedings in the applicant ’s case .

On DATE ORG accepted that request . It found that ORG and ORG in their judgments of DATE and DATE respectively had breached the applicant ’s rights guaranteed under LAW , as well as under domestic law , by failing to directly examine witnesses and evidence before overturning the first - instance court ’s judgment . Moreover , they had examined the case in the applicant ’s absence despite the absence of evidence that he had been properly summoned and all reasonable measures had been taken to ensure his presence in court , and had done so in the absence of a clear waiver of the applicant ’s right to be heard by the courts . Moreover , ORG had failed to follow the indications made by ORG in its decision of DATE , which had been aimed precisely at ensuring the observance of procedural rules and at preserving the rights of the accused to a fair trial . The court therefore annulled the judgments of CARDINAL DATE and DATE and ordered a rehearing of the case .

On DATE the ORG found the applicant guilty as charged . In reaching this conclusion , the court heard the applicant and his lawyer , the victim and her mother , as well as a teacher and has examined the psychiatric report made on the victim ’s intellectual development . In view of the expiry of the limitation period for the offence he had committed , the court did not impose any sanction on the applicant .

By the final judgment of ORG adopted on DATE , the applicant ’s appeal was declared inadmissible due to his failure to lodge it within the statutory time - limit of DATE from the date of adoption of the lower court ’s judgment .

The relevant domestic law has been set out in NORP v. GPE ( nos . CARDINAL and QUANTITY § DATE and DATE , DATE ) .

In a series of its judgments , ORG awarded compensation to persons whose cases had been communicated to the respondent Government and in which the latter acknowledged a violation of Convention rights ( see NORP v. GPE ( dec . ) , no . CARDINAL , DATE ; DATE and Others v. GPE ( dec . ) , no . CARDINAL , DATE ; Grosu and Others v. GPE ( dec . ) , no . CARDINAL , DATE ; PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ; and GPE v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ) . In adopting these judgments , ORG expressly relied on the LAW as the legal basis for awarding compensation . The ORG accepted that that the amounts awarded had been consistent with those it had made in similar cases in respect of GPE and thus struck those cases out of its list of cases .


CASE OF SCHULER-ZGRAGGEN v. SWITZERLAND (ARTICLE 50)

The case was referred to the ORG by ORG ( " the Commission " ) and by ORG of ORG ( " the Government " ) on DATE and CARDINAL DATE , within the DATE period laid down by Article CARDINAL para . CARDINAL and LAW ( article DATE , article CARDINAL ) of the Convention . It originated in an application ( no . CARDINAL/CARDINAL ) against ORG lodged with the ORG under LAW ( article CARDINAL ) by a NORP national , PERSON , on DATE .

In a judgment of DATE ( " the principal judgment " ) the ORG found that there had been a breach of LAW taken together with LAW CARDINAL ( article CARDINAL + CARDINAL - CARDINAL ) , as the assumption that women gave up work when they gave birth to a child had been the sole basis for the reasoning in a judgment of ORG and had introduced a difference of treatment on the ground of sex only , a difference that lacked any reasonable and objective justification ( Series A no . CARDINAL , pp . CARDINAL and DATE , paras . CARDINAL and point CARDINAL of the operative provisions ) .

The ORG ruled that its judgment constituted in itself sufficient just satisfaction in respect of the alleged non - pecuniary damage and that the respondent ORG was to pay the applicant , within DATE , MONEY ( CHF ) in respect of costs and expenses ( ibid . , pp . DATE , paras . CARDINAL and DATE and points CARDINAL of the operative provisions ) .

As the question of the application of LAW ) was not ready for decision as regards the pecuniary damage , it was reserved in the principal judgment . ORG invited the Government and the applicant to submit their written observations within DATE and , in particular , to notify ORG of any agreement they might reach ( ibid . , pp . CARDINAL and DATE , para . CARDINAL and point CARDINAL of the operative provisions ) .

On DATE the Agent of the Government informed the President that in a judgment of CARDINAL DATE ORG had concluded the rehearing proceedings commenced under section ORG . Its own judgment of CARDINAL DATE had been set aside , together with the decision of the GPE of ORG , ORG CARDINAL DATE and the decision of ORG of the GPE of GPE of CARDINAL DATE ; and the applicant had been granted a full invalidity pension with effect from CARDINAL DATE .

On DATE counsel for the applicant advised the Registrar that his client did not consider that the proceedings in GPE were terminated and that she had submitted to ORG a claim for compensation in the amount of CHF ORG based on section CARDINAL of the Act on the liability of the ORG .

On DATE the Secretariat of the Commission informed the Registrar that the ORG wished to leave the question of LAW ) to the ORG ’s discretion .

On DATE the applicant ’s representative sent the Registrar a copy of ORG decision of DATE whereby the compensation claim was refused ; he asked the ORG to consider the possibility of ruling on his client ’s claims as an agreement with the ORG seemed unlikely .

On the President ’s instructions , the PERSON consulted the Agent of the Government and ORG . On DATE the Agent said he had nothing to add to ORG decision of DATE . On DATE the ORG made it known that he was leaving the matter to the ORG ’s discretion .

On DATE