Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicants are NORP nationals and residents of the town of PERSON ( their further personal details are set out in the Appendix to this decision ) . They were all represented before the Court by PERSON NORP GPE , a lawyer practising in the same town . ORG ( “ the Government ” ) were initially represented by their former Agent , Mr S. Carić , and subsequently by their current Agent , PERSON .

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

The imposition and collection of a specific local tax

An assembly of the Majdanpek local community ( LOC mesna CARDINAL Majdanpek ) referred a proposal to its residents to levy a selfimposed local tax ( samodoprinos , hereinafter “ the ORG ” ) to fund the building / maintenance of certain facilities / utilities for the local community .

As a result of a ballot held DATE and DATE in the Majdanpek local community , the proposal was approved .

On DATE ORG hereinafter “ the ORG ” ) enacted an GPE introducing the ORG and elaborating on its purpose , administration and levying . The GPE , inter alia ,

( a ) specified the persons liable for the ORG ( poreski dužnici ) , the basis , rate and the method of its collection ( in the case of taxable incomes , “ deduction at source ” , the tax being paid by intermediary institutions ( poreski platci ) , that is , the ORG employers ( Articles CARDINAL ; see also paragraph CARDINAL below ) ;

( b ) identified the local community ’s current account X , held by the PERSON field office of ORG ( PERSON javna plaćanja GPE , filijala Majdanpek ) , as the account to be used for the collection of the SILT ( LAW ) ;

( c ) identified the exact amounts to be allocated per year for services , and entrusted the ORG with adopting DATE plans in that regard ( Articles CARDINAL and CARDINAL ) ;

( d ) limited , temporarily , the local community ’s power to levy the ORG to DATE ( Article CARDINAL ) or until the resources needed to fund the designated projects had been collected ( Article CARDINAL ) ;

( e ) designated the local community ’s finance departments to carry out the necessary financial administrative tasks and to track income and expenditure in accordance with the law ( LAW ) ;

( f ) stated that if the targeted amount was collected before the expiry of the time allotted for levying the ORG , the process should be discontinued and any overpayments repaid to the intermediary institutions in order to be passed on to the ORG taxpayers ( LAW ) ; and

( g ) provided that the legislation governing tax proceedings and tax administration should be applicable , as relevant , to various issues ( LAW ) .

It would appear that on an unspecified date , following certain legislative changes ( see paragraph CARDINAL below ) , the finance department of the Majdanpek municipality ( PERSON uprava opštine PERSON - odeljenje za budžet , finansije i trezor ) informed all of its local communities , by an instruction of CARDINAL DATE , that all public revenues should be paid into the municipality ’s current account Y. It would appear that the Majdanpek local community received this instruction on DATE , but did not inform the applicants’ employers of it .

NORP The applicants’ liability to pay the ORG was discharged by their employers , who withheld their contributions on a “ pay - as - you - earn ” basis in the form of a periodic DATE deduction from their taxable wages . It would appear that various employers , including those of the applicants , continued to pay all or most of the contributions into account X.

Discontinuation of imposition of the ORG and the related refund proceedings

On DATE a non - governmental organisation informed the officials of the Majdanpek municipality that , in analysing the DATE financial reports of the Majdanpek local community , it had discovered that by DATE twice the targeted amount had already been collected .

It would appear that on DATE , on receiving the above information , the PERSON municipality requested an opinion on the collection of the ORG from ORG and ORG and ORG .

On DATE ORG , referring to LAW ( see paragraph CARDINAL(f ) above ) , stated that the ORG should have monitored the collection of incomes from the ORG on a regular basis and , if the required amount was collected before the expiry of the period of DATE , should have informed the taxpayers that collection of the ORG was being discontinued and that any overpayments would be refunded to them .

Following pressure from the inhabitants of PERSON and the re - election of the ORG ’s members , the newly formed ORG issued a decision on DATE to discontinue the levying of the ORG . On DATE the ORG also formed a ORG to establish the total amount collected in respect of the ORG . On DATE the levying of the ORG was discontinued .

On DATE , on the basis of the data provided by the relevant finance departments of the Majdanpek municipality and the corresponding local community , the Commission found that : ( a ) the targeted amount had been collected by DATE and , thereafter , a further ORG MONEY ( ORG ; CARDINAL euros on that date ) had been collected unlawfully and without cause ; ( b ) each taxpayer was entitled to claim a refund of the amounts deducted from his or her income after the said date ; and ( c ) a total of ORG remained in the current accounts into which the ORG had been paid .

On DATE ORG stated that the reimbursement of the overpaid public revenues – if the ground for collection of the public income had been wrong – should be carried out in accordance with the law governing the collection of public revenues and that refunds should be made from the relevant revenue account .

On an unspecified date in DATE the finance department of the Majdanpek municipality announced that it would refund overpayments to the ORG taxpayers once they had filed their claims in that regard .

According to a report from the finance department submitted by the Government , it dismissed CARDINAL applications as incomplete and adopted CARDINAL decisions for the refund of overpayments , of which CARDINAL were the subject of appeals . CARDINAL out of the CARDINAL appeals are pending , while CARDINAL have been decided upon . The first claim was submitted on DATE and , since then , a total amount of ORG DATE has been reimbursed to citizens , the latest payment being made on DATE . The finance department further clarified that it had refunded only the overpaid ORG which the ORG employers as intermediary institutions had paid into current account Y ( see paragraph CARDINAL above ) . Following the instruction of CARDINAL DATE ( ibid . ) , the contributions paid into current account X ( see paragraph CARDINAL(b ) above ) could not be considered as overpaid ORG , but only as “ funds paid into the wrong current account ” .

According to the documents submitted by the applicants , the first CARDINAL applicants and CARDINAL other ORG taxpayers filed a claim with the finance department of the PERSON municipality requesting the refunding of overpayments made after DATE . DATE and DATE the finance department ruled on their claims as follows .

In CARDINAL cases , on DATE and CARDINAL DATE respectively , the finance department refunded the claimants without making reference to any current account .

DATE and DATE the finance department , referring to its instruction of CARDINAL DATE , agreed to refund the other claimants , including the first CARDINAL applicants , only the overpaid ORG which their employers had paid into account ORG , and rejected the remainder of their claims . In so doing , it informed the first CARDINAL applicants and another CARDINAL claimants that they could appeal to ORG of ORG , and directed the remaining claimants to appeal to the ORG executive council ( PERSON veće PERSON ) . On DATE the latter authority rejected all the appeals in a CARDINAL - sentence decision , on the same ground as that cited by the finance department .

It would appear that the first CARDINAL applicants and the other CARDINAL claimants did not appeal against the first - instance decisions .

NORP The remaining CARDINAL applicants and the majority of ORG taxpayers did not institute tax proceedings , but filed civil claims instead .

The relevant civil proceedings

DATE and DATE all of the applicants filed separate civil claims for unjust enrichment ( tužba zbog sticanja bez osnova ) with ORG – Majdanpek unit ( PERSON ORG jedinica Majdanpek ; hereinafter “ ORG ” ) , seeking a refund of the overpaid ORG from the PERSON municipality and the Majdanpek local community jointly , together with the statutory interest accrued . It would appear that CARDINAL SILT taxpayers in PERSON pursued the same remedy .

On CARDINAL DATE ORG ruled in favour of CARDINAL of the claimants . On DATE the ORG quashed this judgment , stating that the matter in issue should not be considered as a civil matter .

On DATE and DATE respectively the ORG lawyer applied to ORG and its President , requesting them to initiate proceedings before ORG to resolve the issue of civil jurisdiction in respect of the ORG refunds , in order to harmonise the domestic case - law ( see paragraphs CARDINAL below ) . On CARDINAL DATE he also submitted a request to ORG urging it to adopt an opinion on that issue . He did not receive any response to his requests .

Between DATE and DATE ORG Instance stated that it did not have competence ratione materiae to hear the applicants’ cases . In its reasoning , the court considered the ORG as a source of primary income for municipalities ( izvorni prihod opštine ) . It observed that ORG , which defined tax matters as public - law matters between ORG on the one hand and natural and legal persons on the other , empowered the latter to request a refund of overpaid or erroneously levied tax and ancillary contributions in tax proceedings . The court further stated that the provisions of that LAW should accordingly be applicable to various ORG - related matters not specifically covered by LAW , and that , according to ORG , the powers of local government departments as regards the assessment , levying and control of the primary incomes of municipalities should correspond to the powers of ORG . Therefore , and also given that the Majdanpek local community had never adopted a decision revoking the ORG , the present disputes could not be characterised as civil - law disputes coming within the competence ratione materiae of the civil courts .

DATE and DATE the ORG upheld the first - instance decisions on appeal .

Other civil suits

The Constitutional Court declared null and void several ordinances enacted by other local governments imposing or extending the levying of the ORG as being unlawful or unconstitutional for various reasons .

On DATE ORG declared null and void CARDINAL such ordinance adopted by the ORG local community as it had , inter alia , retroactively imposed the ORG DATE . In apparently CARDINAL cases examined DATE , ORG and ORG accepted jurisdiction and upheld the claims for a refund of the above - mentioned unlawfully imposed ORG as being civil in nature . Referring to ORG CARDINAL - CARDINAL of LAW and ORG ( see paragraphs DATE below ) , the courts in question ordered the ORG municipality and CARDINAL of its local communities to jointly refund the claimants ( see , for example , the final decisions of ORG of DATE , P. CARDINAL of CARDINAL DATE and PERSON of CARDINAL DATE ; and the decisions of ORG upholding the first - instance decisions of ORG , PERSON . CARDINAL/CARDINAL of DATE ; PERSON . CARDINAL of DATE ; CARDINAL of DATE ; CARDINAL of DATE ; CARDINAL of CARDINAL DATE ; CARDINAL of DATE and CARDINAL of DATE ) .

Constitutional remedies

In a constitutional appeal of DATE the first applicant contested the relevant judicial decisions in civil proceedings , relying on various Articles of the LAW ( see paragraph CARDINAL below ) . He claimed that ( i ) the summary dismissal of his civil claim had arbitrarily deprived him of judicial protection and of the expected refunds ; ( ii ) the municipal bodies had acted unlawfully , in an untimely manner and in breach of the rule of law and property rights when collecting the ORG and , thereafter , when ruling on his and others’ claims ; and ( iii ) the divergent case - law of the competent courts in his case and of the domestic courts which had accepted jurisdiction ratione materiae in similar cases amounted to legal uncertainty , unequal protection of citizens before the law and discrimination against him . The applicant did not , however , provide ORG with copies of any of the judgments in which the civil courts had accepted jurisdiction in cases similar to his own .

On DATE ORG , referring to LAW ( see paragraph CARDINAL below ) , requested the applicant to provide a copy of the first - instance administrative decision in his case and , if he had appealed against it , of the second - instance decision .

On DATE the first applicant provided a copy of the finance department ’s decision of CARDINAL DATE , clarifying that he had not appealed against that decision to the executive council ( compare and contrast with paragraph CARDINAL above ) . He considered that avenue of redress to be futile in view of overall municipal policy and the rejection of claims in respect of contributions that had been paid into account X.

In its decision of CARDINAL DATE ORG held that the applicant had not been denied access to a court , given that the dispute in issue had been a “ tax administrative ” matter to be decided by the tax authorities rather than a civil matter for the civil courts .

It further dismissed the property - related complaints on the grounds that it “ could not identify any link between the applicant ’s allegations and the contested judicial decisions in civil proceedings ” . Nevertheless , ORG pursued its analysis , considering that the applicant and other ORG taxpayers should not have suffered harm on account of the PERSON local community ’s failure to amend its LAW and inform the tax intermediaries in a legally valid manner of the change in the relevant current account . It concluded that “ the applicant and his employer were entitled to request the reimbursement of overpayments from the Majdanpek local community in tax ( administrative ) proceedings , within the time - limits and prescription periods laid down by law , given that the overpayments had been paid into its current account ” .

The Constitutional Court further summarily dismissed the applicant ’s complaint alleging unequal protection of rights , considering that the general allegations before it , which were unsupported by evidence ( paušalno izneti navodi ) , provided no constitutional basis for claiming a breach of that right . It also stated that there was no constitutional basis for examining the alleged violations of the general principles set out in Articles DATE ( see paragraph CARDINAL below ) , given that no violation of substantive constitutional rights had been found .

NORP Throughout DATE the other CARDINAL applicants lodged constitutional appeals identical or very similar to that lodged by the first applicant . ORG decisions rendered in their cases DATE and DATE were summarised versions of its leading ruling in the first applicant ’s case .

The relevant provisions of the LAW relevant to the ORG appeals are as follows : Article CARDINAL ( direct application of guaranteed rights ) , LAW ( purpose of constitutional guarantees ) , LAW QUANTITY CARDINAL ( restriction of human rights ) , LAW CARDINAL , CARDINAL and CARDINAL ( equality and prohibition of discrimination ) , LAW CARDINAL ( right to judicial protection of human rights ) , Article CARDINAL § CARDINAL ( right to a fair trial ) , LAW ( right to be awarded damages ) and LAW ( right to peaceful enjoyment of property ) .

Article CARDINAL § CARDINAL ( CARDINAL ) provides , inter alia , that the ORG shall reject ( odbaciće ) a constitutional appeal when the appellant has failed , following an additional request issued in this regard , to furnish the court with all the relevant details indispensable for the proper conduct of the proceedings before it .

Article CARDINAL § CARDINAL ( CARDINAL ) provides , inter alia , that the ORG shall reject a constitutional appeal whenever the relevant legal conditions for its examination have not been fulfilled . It is not required to issue any additional warning in this regard .

Article CARDINAL § CARDINAL refers to the compulsory information which must be contained in any constitutional appeal . This information includes : ( a ) the appellant ’s personal data ; ( b ) information concerning his or her legal counsel ; ( c ) the particulars of the decision being challenged ; ( d ) an indication of the relevant provisions of the LAW ; ( e ) a description of the violations alleged ; ( f ) the redress sought by the appellant ; and ( g ) the appellant ’s personal signature .

Article CARDINAL § CARDINAL provides that appellants should also substantiate their constitutional appeals with any and all evidence of relevance for the determination of their case , provide a copy of the impugned decision , and demonstrate by means of supporting documents that all other effective remedies have already been exhausted .

According to this opinion , where a constitutional appeal lacks any of the compulsory elements ( obavezni elementi ) mentioned in LAW of LAW , the appellant should be invited to provide the additional information by a certain deadline or have the appeal rejected pursuant to LAW .

The provisions regarding the legal nature and administration of local taxation , including the self - imposed local tax ( “ the ORG ” ) , are set out in the following legal acts which have been amended or repealed on numerous occasions over DATE : ( a ) LAW DATE ( Zakon o lokalnoj samoupravi , published in ORG RS CARDINAL . CARDINAL , CARDINAL/CARDINAL and DATE ) ; ( b ) LAW DATE ( OG RS no . CARDINAL , which came into force on DATE and repealed LAW ) ; ( c ) ORG ( Zakon o finansiranju lokalne samouprave , ORG nos . CARDINAL , CARDINAL , which came into force on DATE and repealed LAW on local government financing and Articles CARDINAL of LAW DATE ) ; ( d ) LAW CARDINAL ( Zakon o buǆetskom sistemu , ORG nos . CARDINAL ... CARDINAL/CARDINAL ) ; ( e ) LAW DATE ( ORG RS nos . CARDINAL , CARDINAL/CARDINAL and CARDINAL ) ; ( f ) the Act on Public Income and Public Expenditure ( Zakon o javnim prihodima i javnim rashodima , OG RS CARDINAL . CARDINAL ... DATE ) ; and ( g ) ORG o poreskom postupku i poreskoj administraciji , ORG RS nos . CARDINAL/CARDINAL ... CARDINAL ) .

The legal status of the ORG at the relevant time for the present cases will be summarised below . With the gradual decentralisation of governmentance in DATE , the assessment , collection and control of several taxes and revenues , including the ORG , were redefined and transferred entirely from central to local government level ( ORG , Articles DATE in that order ) . Accordingly , the local government units ( municipalities , towns and the city of GPE ) have , in principle , the same rights and duties as ORG of ORG with its field offices ( there are certain exception which are not relevant for the present case ; see Articles CARDINAL and CARDINAL of ORG ) .

The ORG was initially defined as a source of primary public revenue either for local government units such as municipalities or for the lower tier of government , the local communities ( mesne zajednice ) , depending on whether the contributions in question were collected on and for the territory of the whole municipality or only the particular local community ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW DATE ) . However , LAW DATE and ORG CARDINAL § QUANTITY and QUANTITY respectively ) stipulated that the ORG was designed as a source of primary revenue exclusively for the local government units , and that the collected funds were credited to their budgets and strictly intended for specific purposes , while funds for the functioning of the local communities were provided only under specific budget headings .

Pursuant to ORG , where a majority of citizens vote in favour of imposing the ORG for specific investments ( for instance , to fund the building or maintenance of utility services or buildings of value to the community ) , contributions become mandatory and are required from all citizens with different taxable incomes , including those who voted against the ORG or did not vote at all ( Article CARDINAL ) . The competent local government authorities subsequently define the procedures for calculating and collecting the ORG in the relevant decision , except where this is done by applying the principle of “ deduction at source ” . In the latter case , the deduction of the ORG from taxable income is the responsibility of those who pay these personal incomes and/or revenues ( intermediaries ; poreski platci ) , who deduct it when paying other applicable taxes and benefits ( LAW ) . The LAW also provides that the legislation governing tax proceedings and tax administration should be applicable , as relevant , to issues such as the manner of determination and assessment of the ORG , its collection , deadlines for payments , statutes of limitation , calculation of interest and other issues not specifically covered by the relevant legislation ( DATE ) .

Lastly , the municipality ’s administrative departments ( opštinsko uprava ) and the executive council ( opštinsko veće ) respectively decide at first and second instance on administrative matters which fall within the competence of the municipality ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL respectively of LAW DATE ) .

DATE provides that a court of law can not refuse to consider a claim in respect of which its jurisdiction has been established by law or by LAW .

Article CARDINAL provides that ORG adjudicates in administrative matters .

DATE provides that ORG , inter alia , shall adopt general legal positions in order to ensure uniform application of the law by the courts .

Article CARDINAL provided that where there was a large number of cases pending at first instance raising the same preliminary legal issue , the court of first instance could , either of its own motion or at the request of CARDINAL of the parties , institute separate proceedings before ORG requesting the latter to resolve the issue in question . The lawsuits pending at first instance were stayed in the meantime . Article CARDINAL provided that ORG determined the request under the procedure for the adoption of its legal opinions and could refuse to examine it if the preliminary legal issue was not of prejudicial importance in a large number of pending cases .

LAW entered into force on DATE , thereby repealing the CARDINAL Act . Articles CARDINAL to CARDINAL correspond , in principle , to the provisions of the DATE Act described at paragraph CARDINAL above , save that ORG has competence to rule on the request within DATE of receiving it and to adjudicate on the issue .

Under Articles DATE and CARDINAL § § CARDINAL and DATE , no administrative authority may take over an administrative matter which is within the jurisdiction of another authority and decide thereon , save where so provided by law . If the authority finds that it is not competent to receive written submissions , its officer shall advise the claimant or appellant accordingly and refer him or her to the competent authority . If the submission was received by mail , the authority shall immediately send the submission to the competent authority and notify the party thereof . If the authority which does not have competence can not establish with certainty which authority is competent in the matter , it must decline competence and serve that decision immediately on the party concerned .

Article CARDINAL of the LAW provides , inter alia , that ORG adjudicates on the lawfulness of final decisions rendered in administrative matters and/or in the determination of rights , duties or direct personal interests based on the law , where judicial protection has not been secured otherwise .

Under LAW , an administrative matter within the meaning of this LAW is an individual situation of public interest where the necessity to legally and authoritatively determine the future conduct of a party arises directly from the provisions of the law .

According to LAW , the competent authorities for the purposes of this LAW are , inter alia , local government bodies .

Articles CARDINAL § CARDINAL and CARDINAL provide that judicial review proceedings may be brought within DATE from the date on which the final decision was served on the party in question , or where an appellate administrative body fails to decide on an appeal lodged DATE previously and again fails to do so within DATE after receipt of the plaintiff ’s repeated request to this effect . The competent court should , in principle , hold a public hearing and may also rule in accordance with the principle of equity ( načelo pravičnosti ) .

Article CARDINAL § CARDINAL provides that if the competent court decides to uphold the action it shall quash the impugned administrative act in part or whole and order fresh consideration of the case ( spor ograničene jurisdikcije ) . Article CARDINAL § CARDINAL provides , however , that the competent court may instead rule on the merits of the claim , if the facts of the case and the very nature of the dispute in question allow for this particular course of action ( spor pune jurisdikcije ) . Articles CARDINAL § § DATE and CARDINAL provide details of other situations in which a claimant ’s request may be decided on the merits .

When deciding in a case concerning collection of the ORG , ORG considered that the municipality rather than the local community was the creditor in respect of the ORG for the purposes of standing to sue ( see PERSON of DATE ; see also ORG Bulletin no . ORG ) .

No details of the practice of ORG on ORG refunds , if any , have been provided . However , DATE and DATE ORG rendered CARDINAL judgments in cases concerning tax refunds . In CARDINAL of these judgments it quashed the administrative acts and/or ordered fresh consideration of the case , while in CARDINAL cases it rejected ( odbio ) the applications for judicial review ( see CARDINAL U CARDINAL/CARDINAL , ORG , CARDINAL ORG , CARDINAL U CARDINAL/CARDINAL , CARDINAL U CARDINAL/CARDINAL and PERSON ) .

Furthermore , in CARDINAL judgments rendered DATE and DATE ORG and ORG ( formerly the competent courts for judicial review in administrative matters ) , respectively , ruled on the merits of administrative disputes concerning property - related municipal decisions , pension entitlements , disability benefits , the right to stand for election and a proposed change in the registration of persons authorised to represent political parties ( see Up . br . PERSON , PERSON . DATE , Už . CARDINAL , U.br . CARDINAL , ORG . CARDINAL and ORG . CARDINAL ) .

Articles CARDINAL to CARDINAL set out provisions concerning unjust enrichment ( sticanje bez osnova ; condictio sine causa ) . Under the general rule set forth in LAW , when a part of the property of CARDINAL person passes , by any means , into the property of another person and that transfer has no basis in a legal transaction or statute , the beneficiary is required to return the property . If restitution is not possible , he or she is required to provide compensation equal to the value of the benefit received . The obligation to return the property or provide compensation for its value arises even when it was received in connection with a cause which did not come into existence or which subsequently ceased to exist .


Violation de l'article 6 - Droit à un procès équitable (Article 6 - Procédure civile;Article 6-1 - Délai raisonnable);Violation de l'article 13 - Droit à un recours effectif (Article 13 - Recours effectif)

Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

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

On DATE the applicant lodged an action with the Santa PERSON ( domestic proceedings no . CARDINAL/CARDINAL.CARDINALTBVFR ) against different defendants regarding the right to use a water channel .

On DATE applicant rectified the initial application upon request .

On DATE the defendant I. lodged her submissions in reply ( contestação ) and informed the court that defendant A. , her husband , had died in DATE .

On DATE defendant J. informed the Santa PERSON that defendant PERSON had died in DATE and that his heirs were living in GPE .

On CARDINAL DATE the Santa PERSON stayed the proceedings , pending the outcome of the inheritance proceedings in relation to the deceased defendants , after having given the applicant a deadline to submit to the case - file the death certificates of the deceased .

On DATE the applicant applied to the Santa PERSON for leave to continue the proceedings against the heirs of the deceased defendants ( incidente de habilitação de herdeiros ) . He submitted the relevant documents supporting his request on DATE , after being notified by the Santa PERSON .

On DATE the Santa PERSON admitted the heirs of the concerned defendants as parties to the proceedings .

On an unknown date the court , taking into account its decision of CARDINAL DATE , resumed the main proceedings .

On DATE the applicant was notified of the failure of the Santa PERSON to summon defendant PERSON

On DATE the Santa PERSON interrupted the proceedings for lack of action from the parties .

On DATE the applicant informed the court about the new address of defendant A. ’s heir .

On an unknown date the proceedings were resumed .

On DATE the Santa PERSON adopted a decision dismissing the applicant ’s claim for being time - barred .

On DATE the applicant appealed against the decision to ORG ( Tribunal da Relação do PERSON ) .

On DATE ORG quashed the first instance decision and ordered a new trial .

The proceedings are still pending at first instance .


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

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

PERSON was born in DATE and lives in GPE .

In DATE she complained to ORG that the school teacher of her son , then aged DATE , had on several occasions ill - treated and humiliated him . In particular , she alleged that the teacher had hit the child DATE and had since then often insulted him , had made remarks about his parents in front of other pupils , and had belittled his performance at school . PERSON argued that this had amounted to harassment , and said that her son had become demotivated . The ORG examined the complaint , heard the teacher , PERSON son and other witnesses , and concluded that the allegation of ill - treatment had not been made out . It found that relations between PERSON and the teacher had been strained since DATE , when the father of her son had threatened the teacher in front of other pupils . The teacher had brought a private criminal prosecution against the father in relation to that , and the proceedings were pending .

NORP In DATE PERSON complained to the school ’s headmaster and the police that the teacher had taken her son ’s mobile telephone in class and had later refused to give it back .

NORP The prosecuting authorities opened criminal proceedings against an unknown perpetrator in connection with this allegation and in DATE suspended them on the ground that the perpetrator had not been identified .

In DATE the teacher brought a private criminal prosecution against PERSON in connection with these CARDINAL complaints . She submitted that she had not read them because the authorities dealing with them had not shown them to her . However , she had been asked to give explanations and from the questions put to her she had inferred that PERSON had accused her of having stolen a mobile telephone and described her as a biased and incompetent teacher using inappropriate disciplinary methods . At the first hearing of the case in DATE , the teacher brought a civil claim against PERSON , seeking MONEY ( ORG ) ( MONEY ( ORG ) ) , plus interest , in non - pecuniary damages .

On DATE the ORG found PERSON ORG guilty of defaming a public official , contrary to Articles CARDINAL and CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of LAW ( see paragraphs DATE and CARDINAL below ) . The court replaced Mr LOC criminal liability with an administrative fine of BGN CARDINAL ( EUR CARDINAL ) . It partly allowed the teacher ’s claim for damages , ordering PERSON to pay her BGN MONEY ( ORG MONEY ) , plus interest . It also ordered PERSON to pay the teacher ’s costs , amounting to ORG CARDINAL ( EUR CARDINAL ) , and part of the court fee paid by the teacher , amounting to ORG CARDINAL ( EUR CARDINAL ) . The court noted that relations between the teacher and PERSON had for a long time been bad . Having examined the findings of ORG and the prosecuting authorities in relation to PERSON complaints , the court concluded that her allegations , the first of which had become known to the school ’s headmaster and a pedagogical counsellor in the school , had been false and therefore defamatory . The court also held , without specifying the basis for its conclusion on this point , that PERSON had acted with direct intent . In fixing the amount of the fine , the court noted , inter alia , her poor financial situation .

PERSON appealed , arguing , inter alia , that complaining about a public official to the authorities did not amount to “ dissemination ” within the meaning of LAW ( see paragraph DATE below ) . Such complaints could , in some cases , be seen as false accusation contrary to LAW ( see paragraph CARDINAL below ) . PERSON ORG also emphasised that she had not made her allegations publicly .

NORP In a final judgment of DATE , ORG upheld the lower court ’s judgment . It found that PERSON allegations that the teacher had ill - treated her son were not supported by the findings of ORG or her son ’s or the headmaster ’s testimony , and held that information was “ disseminated ” within the meaning of LAW even if CARDINAL person had become privy to it . The court found that the allegations in relation to the mobile telephone were false as well . It agreed that the statements in this respect in PERSON complaint to the police had amounted to a false accusation , and that the lower court had been wrong to characterise them as defamation . However , it stated that in the absence of an appeal by the teacher , it could not quash this part of the lower court ’s judgment . It upheld , without giving any details , the lower court ’s finding that PERSON had acted with direct intent .

To obtain payment of the award of damages and costs , the teacher brought enforcement proceedings against PERSON . It is unclear how these ended .

Mr GPE was born in DATE and lives in GPE .

On DATE he was stopped by CARDINAL road traffic police officers . CARDINAL of them recorded that Mr GPE had failed to obey a stop sign . Mr GPE objected , noting down in the record that the officer had refused to present himself , smelled of alcohol and staggered . In written explanations which he filed with ORG on DATE , Mr PERSON reiterated his allegations and said that the officer had behaved aggressively .

Mr GPE ’s allegations triggered an internal inquiry which exonerated the officer of any wrongdoing .

In DATE the officer brought a private criminal prosecution against Mr GPE in relation to these allegations . He also claimed ORG CARDINAL ( ORG CARDINAL ) in non - pecuniary damages .

In a judgment of DATE , ORG found Mr GPE guilty of defaming a public official , contrary to Articles CARDINAL and CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of LAW ( see paragraphs DATE and CARDINAL below ) . The court replaced his criminal liability with an administrative fine of BGN CARDINAL ( FAC ) . It partly allowed the officer ’s claim for damages , ordering Mr GPE to pay him BGN CARDINAL ( ORG CARDINAL ) , plus interest . It also ordered Mr GPE to pay BGN MONEY ( EUR CARDINAL ) in court fees . The court examined in detail the results of the internal inquiry carried out pursuant to Mr GPE ’s allegations , tests carried out TIME after the incident on DATE and showing that the officer had not consumed alcohol , and the oral evidence of the other officer present at the scene and the ORG superior . It concluded that Mr GPE ’s allegations did not correspond to the truth . It went on to find that Mr PERSON had not been certain of the truthfulness of his allegations , but had nevertheless chosen to make them , both in the record drawn up by the officer in the course of the incident on DATE and in his subsequent written explanations .

Mr GPE appealed . He argued , inter alia , that his statements , made in the exercise of his constitutional rights and only addressed to the officer ’s superior , had not amounted to “ dissemination ” within the meaning of the LAW ( see paragraph DATE below ) . He also relied , inter alia , on LAW and this ORG ’s caselaw under this provision .

In a final judgment of DATE , ORG upheld the lower court ’s judgment . It found it established that the officer had not displayed any signs of inebriation , which in the court ’s view meant that Mr PERSON had been fully aware that the officer had not been drunk but had nevertheless chosen to make his allegations , thus acting with a direct intent to discredit the officer . Those allegations , whose purpose had been to smear the officer and at the same time exonerate Mr GPE from liability for the road traffic offence recorded by the officer , could not be justified by the right to defend oneself against administrative - penal charges or the right to freedom of expression . The court ordered Mr GPE to pay the officer ’s costs for the appellate proceedings , amounting to ORG ( EUR CARDINAL ) .

On DATE Mr GPE , who was driving his lorry , was stopped by CARDINAL road traffic police officers . CARDINAL of them allegedly requested a bribe . PERSON promised to bring him the money in TIME and left his identity card and the vehicle ’s documents with the officers . He then called the police and informed the officer on duty of the incident .

On DATE and CARDINAL and DATE Mr Findulov made complaints to ORG , ORG and the Minister of ORG , alleging that one of the officers who had stopped him , whose identity was not known to him , had requested a bribe and had withheld his documents .

On DATE ORG of ORG replied to PERSON that his complaint was illfounded .

According to PERSON , on DATE he found his identity card in his mail box . The vehicle ’s documents were never recovered .

In a decision of CARDINAL DATE , ORG of ORG of ORG found , on the basis of a report by the CARDINAL traffic police officers issued in PERSON Findulov ’s absence , that he had not used a seatbelt , that one of the tyres of his lorry had been worn out , that he had refused a breathalyser test , and that he had driven away in an unknown direction . It gave Mr Findulov CARDINAL administrative fines of ORG CARDINAL and CARDINAL administrative fine of BGN CARDINAL , stripped him of CARDINAL control points from his driving licence , and barred him from driving a motor vehicle for DATE .

Mr GPE sought judicial review of that decision . On DATE the ORG found that no appeal lay against the ORG CARDINAL fines and discontinued the proceedings in that part . It quashed the remainder of the decision of CARDINAL DATE , finding that the report of the traffic police officers had not been communicated to Mr GPE . In a final judgment of DATE ORG upheld that judgment .

On an unspecified date in DATE , the officer accused by Mr Findulov of soliciting a bribe brought a private criminal prosecution against him in relation to that allegation . He also sought ORG CARDINAL ( EUR CARDINAL ) in nonpecuniary damages .

In a judgment of CARDINAL DATE , ORG found Mr GPE guilty of defaming a public official , contrary to Articles CARDINAL and CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of LAW ( see paragraphs DATE and CARDINAL below ) . It sentenced him to a fine of ORG CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) and a public reprimand . It partly allowed the officer ’s claim for damages , ordering Mr GPE to pay him BGN CARDINAL ( ORG CARDINAL ) . It also ordered PERSON GPE to pay ORG CARDINAL ( EUR CARDINAL ) in court fees . The court noted that in his complaints PERSON had not named the officer , but found that he had been identifiable from the complaints , which clearly alleged that he had requested a bribe , thus accusing him of an offence before third parties . The offence of defamation did not require that those third parties – the officer ’s hierarchy – had actually believed the allegations or taken any action in relation to them . PERSON , who under LAW ( see paragraph DATE above ) bore the burden of proof in this respect , had failed to establish that the officer had in fact solicited a bribe . The court went on to say , without explaining the reasons for this conclusion , that Mr Findulov had acted with direct intent . When fixing the sentence , the court noted that it could not replace Mr GPE ’s criminal liability with an administrative punishment as this was a CARDINAL - off possibility and PERSON had previously benefited from a waiver of his criminal liability in relation to a road traffic offence . In fixing the award of non - pecuniary damages to the officer , the court noted that ORG allegations had been particularly damning .

Mr GPE appealed .

In a final judgment of DATE , ORG upheld the lower court ’s judgment . It entirely agreed with the reasons given by that court , adding that Mr Findulov had been fully aware that his allegations against the officer were false but had nevertheless chosen to defame him . The court also ordered PERSON to pay BGN MONEY ( EUR CARDINAL ) incurred by the officer in costs for the appeal proceedings .

The public reprimand was executed , as ordered by the court , by announcing Mr GPE ’s conviction and sentence on the local radio station . To obtain payment of the award of damages and costs , the officer brought enforcement proceedings against ORG . It is unclear how these ended .

Mr GPE was born in DATE . PERSON was born in DATE . Both of them live in GPE .

The CARDINAL of them had a long - running conflict with neighbours of theirs . On DATE tensions escalated and PERSON and PERSON called the police , complaining that they had been assaulted by the neighbours . CARDINAL officers came and warned CARDINAL of the neighbours not to harass the applicants .

On DATE Mr and PERSON complained to the head of LOC against the officers , alleging that they had shown no interest in the incident and had failed to protect them , instead inviting the aggressors in the patrol car and “ muttering with them ” . PERSON and PERSON sent copies of the complaint to ORG , the head of ORG , and the Minister of ORG . On DATE the head of LOC informed PERSON and PERSON that an internal inquiry had established that their complaint was ill - founded .

On an unspecified date in DATE the officers brought a private criminal prosecution and claims for damages against Mr and PERSON .

In a judgment of DATE , LOC found PERSON and PERSON guilty of defaming public officials , contrary to ORG and CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of LAW ( see paragraphs DATE and CARDINAL below ) . It sentenced each of them to a fine of ORG CARDINAL ( ORG CARDINAL ) and a public reprimand . The reprimand was to be executed by announcing the conviction and sentence on the local radio station . The court also partly allowed the ORG claims for damages , ordering the applicants to pay each of them LAW ( EUR CARDINAL ) .

On appeal , in a final judgment of DATE ORG upheld the conviction with similar reasoning but reduced the fine imposed on each applicant to ORG CARDINAL ( EUR CARDINAL ) .

After the Government were given notice of the application ( see paragraph CARDINAL above ) , they brought PERSON and PERSON case to the attention of ORG . In DATE the Chief Prosecutor ad interim asked ORG to reopen the proceedings , set aside the judgments against PERSON and PERSON , and acquit them . He submitted that the statements in their complaint against the officers had not been defamatory but simply an expression of their disapproval of the way in which the officers had carried out their duties . Under the case - law of this ORG and the case - law of ORG , public officials could legitimately be subjected to heightened criticism . Accepting , as the GPE courts had , that critical statements in complaints against such officials were defamatory would mean that the vast majority of claims and complaints filed with the courts and the prosecuting authorities by nonlawyers could lead to penal sanctions .

NORP In a final judgment of DATE ( реш. № ORG от CARDINAL.CARDINAL.CARDINAL г. по н. д. № CARDINAL г. , ВКС , III н. о. ) , ORG allowed the request , reopened the proceedings , set the CARDINAL judgments aside , acquitted PERSON and PERSON , and dismissed the claims for damages against them . It held that their actions had not amounted to an offence . The statements in their complaints had been an expression of their disapproval of the way in which the officers had carried out their duties , and an exercise of their constitutional rights to make complaints to the authorities , express their opinion , and defend their rights . The statements had been value judgments which could not be proved or disproved , and could not be regarded as defamatory . Defamation could only consist in the imputation of concrete negative facts . The statements did not give rise to liability in damages either .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in DATE and until his arrest lived in GPE . He is currently serving a sentence in a correctional colony in LOC .

On DATE the applicant was arrested on suspicion of aggravated kidnapping , murder , fraud and conspiracy .

On DATE ORG found him guilty as charged and sentenced him to DATE and QUANTITY months’ imprisonment . DATE were to be served in a prison and the remaining term in a high - security correctional colony .

On DATE ORG upheld his conviction and sentence on appeal .

The parties provided the ORG with the applicant ’s medical documents , including clinical records , discharge summaries and expert reports . Parts of the clinical records drawn up during his detention and submitted to the ORG by the Government are illegible .

On several occasions before his arrest the applicant underwent inpatient and outpatient treatment in civilian hospitals . DATE he was treated for cerebral concussion , cerebral contusion , vertebral contusion , knee pain and a duodenal ulcer .

After his arrest on DATE the applicant was taken to a police detention facility in GPE . DATE he was transferred to remand prison no . CARDINAL ( “ the remand prison ” ) , also in GPE , where resident doctors carried out a general check - up , noting in the medical file that he had sustained a brain injury and suffered from a duodenal ulcer . The doctors found him fit for detention , noting that detention in northerly regions should be avoided .

According to the applicant , in DATE and in DATE he complained to the prison doctor about various health problems , including stomach pain , but his complaints remained unnoticed by the authorities . His medical records for the period DATE did not contain any entries regarding his complaints , medical examinations or treatment in that period .

On DATE the prison doctor saw the applicant after he complained of stomach pain and deteriorating eyesight . He diagnosed the applicant with a duodenal ulcer in the acute phase and myopia , but did not prescribe any treatment . He noted that a specific endoscopy was to be performed .

On DATE and CARDINAL and DATE the trial court adjourned its hearings in the applicant ’s case as he did not feel well and had complained of severe stomach pain . The court asked the detention authorities to submit detailed information on his actual state of health .

In DATE the applicant received injections of drotaverine allegedly provided by his mother , a retired doctor , to relieve his stomach pain . On DATE , at a court ’s request , a deputy head of the prison medical ward examined the applicant and observed that he was receiving treatment for an acute duodenal ulcer . In addition , he noted that the applicant was to be transported to ORG no . CARDINAL ( “ the prison hospital ” ) for the fibrogastroduodenoscopy ordered in DATE .

On DATE the applicant was taken to the prison hospital . Multiple tests performed there led to him being diagnosed with first - stage myopia , a duodenal ulcer in remission and duodenitis associated with cicatricial deformation of the duodenum bulb . Omeprazole was prescribed . Insofar as the submitted medical records could be deciphered , the applicant did not receive the prescribed treatment .

In DATE the applicant was transported to the prison hospital for the second time . This time the doctors prescribed him medication for his myopia and neurological symptoms resulting from the trauma in DATE . The medical records did not contain any information on the actual intake of drugs by the applicant .

In DATE the applicant ’s stomach pain came back . A fibrogastroduodenoscopy showed that he suffered from duodenitis with cicatricial deformation of the duodenum bulb and antral gastritis . The resident doctor saw him in DATE and DATE , prescribing him drug treatment and a special diet . The applicant ’s medical records do not contain any information indicating that the doctor ’s recommendations were followed .

On DATE the applicant underwent an in - depth medical examination in the prison hospital . It showed that in addition to his peptic problems , erosive duodenitis and antral gastritis , the applicant had developed first - stage sensorineural hearing loss and his myopia had progressed slightly . A drug programme and special diet were recommended . According to the applicant , the recommendation was not followed by the authorities . His medical documents contain no entries in this regard .

NORP In DATE the court had to adjourn several hearings in the applicant ’s criminal case owing to his severe stomach pain . It ordered the detention authorities to provide him with anti - ulcer treatment . At DATE the applicant was examined in a civilian hospital , which diagnosed him with an aggravated ulcer and acute gastritis . Inpatient treatment was prescribed . The authorities did not admit him for it .

The next recurrence of the applicant ’s ulcer occurred in DATE . According to the medical records , the applicant did not receive any drugs at that time . An examination on DATE showed that his ulcer had grown and the duodenitis and gastric disease had progressed further . A civilian doctor who visited him recommended inpatient treatment , but he remained in the remand prison . The resident doctor prescribed drug treatment in DATE and DATE . However , the medical records contain no information concerning the actual provision of the prescribed drugs to the applicant . According to him , CARDINAL of the drugs was made available to him . His mother sent him the required drugs in DATE to enable him to receive at least some relief .

A new acute stomach pain attack occurred in DATE . The applicant was immediately taken to the prison hospital for an QUANTITY - ray examination and a surgical consultation . The surgeon concluded that the applicant ’s condition did not call for surgery . Over DATE the applicant was diagnosed with duodenitis and recurring acute gastritis which had passed to the chronic stage . Drug treatment was prescribed , but the ORG was not given any records showing that he actually received it .

In the meantime the applicant started complaining of mild knee pain and impeded nasal breathing allegedly caused by a broken nose in DATE while in detention on remand . He stated that he had received some medication for knee pain , but had not undergone any septal surgery .

In DATE the applicant underwent a magnetic resonance imaging scan of the brain and spine in a civilian hospital . He paid for the scan himself , which revealed the presence of ORG ’s nodes , protruded discs , spondylarthrosis and a haemangioma in one of the spinal discs . It also indicated moderate changes within local tissue associated with a cerebrospinal fluid cyst in the arachnoid membrane of the brain . These diagnoses were confirmed by the prison doctor , who found that the applicant ’s condition did not call for surgical treatment .

The applicant was sent to a prison to serve his sentence .

On DATE the applicant arrived at the prison in GPE in LOC ( “ the prison ” ) . On admission he was seen by a prison doctor , who considered him to be in satisfactory health . He was included on a list of detainees subject to regular medical check - ups and enhanced medical attention .

DATE he was diagnosed with acute gastritis and degenerative disc disease . He was prescribed a fibrogastroduodenoscopy and several drugs , including nonsteroidal antiinflammatory medication and medication to treat his gastritis . He refused to comply with the ORG recommendations pertaining to the endoscopy and anti - inflammatory drugs , insisting that they would lead to a further deterioration of his ulcer . He nevertheless took the medication prescribed for gastritis treatment . According to the medical records , the ulcer treatment continued for DATE .

In the meantime , an independent medical specialist and neurologist , PERSON , assessed the applicant ’s health and prepared a report on CARDINAL DATE . It stated that he should be admitted to a neurological or neurosurgical medical facility , where his spinal problems could be treated with nonsteroidal anti - inflammatory medication , neuromuscular blocking agents and painkillers . The doctor gave detailed recommendations concerning the applicant ’s treatment .

On DATE the prison doctor prescribed the applicant vitamin injections and pain - relief ointment to treat his spinal problems . DATE the doctor authorised TIME rest from physical activity and prescribed nonsteroidal anti - inflammatory medication , spasm relief analgesics and omeprazole for his peptic problems .

In the absence of any positive developments , in DATE the doctor amended the spinal treatment and introduced a stronger antiinflammatory drug .

In DATE the applicant was transferred to the prison hospital . Tests showed that his conditions had not progressed . The gastritis and duodenal ulcer were in remission . The applicant was prescribed omeprazole and sucralfate - based medication . According to an entry made in his medical history on DATE , his attending doctor recommended testing for the bacteria ORG pylori ( “ GPE ” ) . The test was never performed .

After the applicant ’s return to the prison his treatment continued in line with the recommendations of the prison hospital doctors . He received meloxicam and omeprazole . However , in DATE his duodenal ulcer again worsened . The acute phase lasted DATE .

On DATE the applicant was examined by a number of medical specialists from a mobile prison hospital . He was diagnosed with a duodenal ulcer in remission , chronic gastritis , erosive duodenitis , osteoarthritis of the left knee , PERSON ’s syndrome , degenerative disc disease , acute back pain and second - stage myopia . He was prescribed drug treatment . The records do not indicate that he received all of the prescribed medications .

On DATE the prison authorities received a parcel of medication from the applicant ’s mother . He was treated with those drugs until DATE , when he was sent to a correctional colony .

On DATE the applicant arrived at correctional colony no . CARDINAL/CARDINAL in GPE . He complained to the resident doctor of nausea and was diagnosed with an ulcer and degenerative disc disease . He was put on a list of detainees for close medical supervision . The doctor noted that the applicant required anti - recurrence ulcer treatment and in - depth examinations DATE , recording that it was necessary for him to be placed on a special diet when the ulcer recurred .

On DATE the applicant was seen by doctors from the mobile prison hospital and underwent a fibrogastroduodenoscopy . It revealed that he had antral gastritis . According to him , his mother bought him medication for the ulcer treatment and sent it to the correctional colony .

In DATE the applicant had another severe attack of stomach and back pain . The prison doctor prescribed him drugs , injections of painkillers and vitamins . According to the Government , he refused to take CARDINAL of the drugs , a nonsteroidal antiinflammatory . He disputed that allegation .

On DATE the applicant filed a complaint against the prison administration , arguing that his treatment fell short of the requirements of NORP law . He stressed that the authorities had failed to properly treat his conditions .

On DATE ORG dismissed the applicant ’s complaint , finding that the authorities had provided him with adequate treatment . According to the court , he was regularly seen by a doctor and prescribed medication , including anti - inflammatory drugs and painkillers . They were given to the applicant as prescribed . His condition remained stable between DATE and CARDINAL DATE .

On DATE ORG upheld the judgment on appeal .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

The applicant was born in DATE . He is currently serving a life sentence in GPE .

By the final domestic judgment of DATE , the applicant was sentenced to life imprisonment for murder and other crimes .

Until DATE the applicant was detained in the ORG pre - trial detention centre ( “ the ORG SIZO ” ) in which , he stated , cells had been overcrowded and had lacked basic amenities .

NORP In DATE the applicant was transferred to ORG no . CARDINAL in PERSON ( “ the GPE ” ) , where he remained until DATE .

The applicant stated that during his detention in the above ORG , one of his cellmates had been PERSON , a former applicant to the Court , with whom he had shared the cell for DATE . PERSON application has already been examined by the ORG , which found , in particular , a violation of LAW on account of the conditions of his detention in the above Colony ( see PERSON GPE [ ORG ] , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

According to the applicant , during his stay in the ORG he was held in a cell , in which the living space was “ extremely insufficient ” . As confirmation thereof , he referred to a written statement signed by PERSON Guk , which he had submitted to the ORG . According to that statement , the cell measured CARDINAL by QUANTITY ( QUANTITY ) including a sanitary facility measuring QUANTITY ( QUANTITY ) .

The cell lacked basic amenities : no furniture for storage of personal belongings and food ; a very small table ; no rubbish container ; and no toilet cleaners . The tap water was of a poor quality and water filters were not provided . Heating in the cell was inadequate ; the air was damp and cold ; the walls were covered with mould .

According to the Government , the equipment in the applicant ’s cell corresponded to the domestic standards . Prisoners were provided with all necessary amenities . The quality of the tap water corresponded to the standards . The temperature in the cell was not QUANTITY and the air in the cell was neither damp nor cold .

According to the applicant , the washing unit in the ORG had no changing facilities , so the prisoners had first to undress in their cells . A guard watched them wash and hurried them up . The prisoners had to shave with poor - quality razors . Prisoners with tuberculosis washed in the same unit as healthy prisoners ; no disinfection measures were taken . Sick and healthy prisoners took their DATE walks in the same courtyards , which were also small , damp and dark .

Whenever the guards opened the cell , the prisoners had to retreat to its far corner , squat and put their arms behind their heads . When taken out of the cell , the applicant was handcuffed ; he was required to walk in a squat or some other unnatural position ; his head was covered with a black bag ; handcuffs were not disinfected .

NORP Until DATE the prisoners had been required to roll up their mattresses in TIME . During the daytime they had been prohibited from lying down on the beds .

NORP In support of the above submissions , the applicant referred to the written statement of PERSON , which confirmed the procedure the prisoners had had to follow when the guards had opened the cell . It also stated that , when taken out of the cell , the prisoners had been handcuffed and escorted in a crouched position ; a bag had often been put over a prisoner ’s head . Sick and healthy prisoners washed in the same unit and walked in the same courtyard . Mattresses on the beds had to be rolled up during the daytime .

The applicant also stated that the administration had carried out searches of personal belongings , leaving them in disorder and often damaged ; his watch had been stolen by an unidentified guard . Prisoners had not been provided with adequate medical assistance ; they had been constantly ill - treated by the administration . In DATE the applicant had been regularly beaten by the guards . In DATE family visits had not been adequately organised . The applicant ’s correspondence with relatives had been reviewed and a number of his letters had disappeared .

The Government stated that the washing unit had a changing room . Disinfection measures in the ORG had fully complied with the domestic standards . Prisoners with tuberculosis were detained in a separate cell ; they washed after others , and the washing unit was disinfected afterwards .

Whenever the cell was opened , the prisoners were required to retreat to its far end , but not to squat . When escorted out of the cell , they were handcuffed , but not required to walk in a squat or with the head covered with a bag ; handcuffs were in a proper condition and their disinfection was not required .

Searches were conducted pursuant to the relevant regulations , and there were no situations alleged by the applicant . Prisoners were not prohibited to use mattresses during the daytime .


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicants were born in DATE and DATE and live in GPE and NORP respectively .

On DATE the applicants participated in reading out a press statement in commemoration of PERSON , the leader of ORG ( ORG – NORP / PERSON ) , who had died in DATE , allegedly under torture in police custody .

On DATE the GPE public prosecutor initiated criminal proceedings against CARDINAL people , including the applicants , charging them with disseminating propaganda in favour of the TKP / ML , under section CARDINAL(CARDINAL ) of the Prevention of Terrorism Act ( Law no . ORG ) . According to the indictment , during the gathering , the second applicant had read out a press declaration containing statements praising the TKP / ML and PERSON , and the following slogans had been chanted by the demonstrators : “ PERSON is our leader ” , “ Our struggle continues and shall continue ” , “ PERSON is immortal ” , “ Down with the GPE ” and “ We will drown fascism in the blood it has shed ” . The group had also carried a banner which read “ PERSON is immortal NORP ” .

On DATE the ORG found the applicants guilty as charged and sentenced each of them to CARDINAL months’ imprisonment pursuant to section CARDINAL(CARDINAL ) of PERSON no . ORG . In its judgment , the assize court held that the applicants had disseminated propaganda in favour of the TKP / ML , given that the second applicant had read out the press statement and the first applicant had chanted slogans . The court based its judgment on a report prepared by an expert regarding a police video - recording of the public gathering in question .

Taking into account the applicants’ good behaviour during the trial and the fact that they had no previous criminal convictions , the court suspended pronouncement of the applicants’ conviction on the condition that they did not commit another intentional offence for DATE , under LAW ( hükmün açıklanmasının geri bırakılması ) .

The applicants filed an objection against the decision of DATE . In their petition , they stated that the first - instance court had erred in interpreting the facts and the law , and they asked to be acquitted of the charges against them . They further stated that their prosecution had constituted a breach of LAW .

On DATE ORG held that the application of LAW in the case was in line with the domestic law , and rejected the applicants’ objection without examining the merits of the case . That decision was served on the applicants on DATE .


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Jon Fridrik Kjølbro;Georges Ravarani;Ksenija Turković

The applicants were born in DATE and DATE respectively and are currently serving their prison sentence in LOC .

On DATE the applicants were arrested on suspicion of membership of an illegal organisation . On CARDINAL and DATE respectively , the first applicant gave detailed police statements in the absence of a lawyer . On DATE , the second applicant was also interrogated by the police in the absence of a lawyer , and he used his right to remain silent .

On DATE both applicants were examined at ORG . According to the medical report , there was no trace of ill - treatment on their bodies .

On DATE , still in the absence of a lawyer , the applicants were brought before the public prosecutor and subsequently the investigating judge . Before the public prosecutor and the investigating judge , both applicants gave statements , and the second applicant complained that he had been ill - treated in police custody . The investigating judge remanded the applicants in custody .

On DATE ORG at ORG filed an indictment with that court and accused the applicants of carrying out activities for the purpose of bringing about the secession of part of the national territory . He sought the death penalty under LAW .

On CARDINAL DATE ORG held a preparatory hearing . It decided that the applicants’ detention on remand should be continued . DATE and CARDINAL DATE ORG , composed of CARDINAL civilian judges and a military judge , held CARDINAL more hearings . On DATE the constitution was amended and the military judge sitting on the bench of ORG was replaced by a civilian judge . Thereafter , the court held CARDINAL more hearings . During the hearings , the applicants alleged that they were ill - treated under police custody .

On DATE ORG , which was composed of CARDINAL civilian judges , found the applicants guilty as charged and sentenced them to life imprisonment under LAW . In convicting the applicants , ORG had regard to the ORG statements to the police , the public prosecutor and the investigating judge respectively .

On DATE ORG upheld the judgment of ORG . This decision was deposited with ORG first instance court on DATE .


CASE OF NICHIFOR v. THE REPUBLIC OF MOLDOVA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in GPE .

The applicant was a shareholder in a limited liability company created in DATE with a registered capital of CARDINAL NORP lei ( MDL ) ( the equivalent of MONEY ( ORG ) ) . At the time of the events he owned PERCENT of the company ’s shares . CARDINAL of the shares was owned by ORG

On DATE ORG lodged an action with ORG seeking the applicant ’s exclusion from the list of shareholders on the grounds , inter alia , that he had not paid for his part of the shares , that is to say he had only paid ORG CARDINAL instead of MDL CARDINAL . The applicant objected , claiming that the action was time - barred : under the relevant law , it had to be introduced within DATE of the creation of the company . The applicant also presented bank documents which showed that ORG had not paid his part of the shares until DATE .

On DATE ORG dismissed the action against the applicant on the grounds that it was time - barred . ORG appealed .

The hearings before ORG took place on CARDINAL different dates : DATE , DATE , DATE , DATE and DATE . On DATE ORG ’s representative submitted that the applicant had not paid his contribution and that he had been asked to do so every year since the creation of the company in DATE . When asked whether there were any minutes to confirm the contention that the applicant had been summoned to pay his contribution , he answered that he was not aware of any such minutes .

On DATE ORG ’s representative presented for TIME of a meeting of the company ’s shareholders , which had allegedly taken place on DATE . The minutes showed that the applicant had admitted to not having paid for the totality of his shares and had pledged to pay within DATE or lose his status as a shareholder in the company .

The applicant objected that the minutes in question had been forged . He argued , inter alia , that his first name had been spelt wrongly and that the signature was not his . He requested that an expert authentication of his signature be carried out . His request was not mentioned in the transcript of the hearing .

NORP On DATE the parties made their closing statements at the hearing before ORG . The applicant reiterated that TIME of a ORG meeting dated DATE had been forged and requested that an expert authentication be carried out . A document containing his submissions was attached to the file .

On DATE adopted a judgment in the case by which it upheld the appeal , reversed the judgment of the first - instance court and found in favour of ORG In ruling on the case , ORG relied entirely on TIME of the ORG meeting dated DATE .

DATE after the pronouncement of the judgment , the applicant had access to the case file and noted that the transcript of the hearing of DATE did not contain a record of his request for an expert authentication of his signature . He made an official request to have the transcript corrected . However , on CARDINAL DATE ORG rejected his request .

The applicant lodged an appeal on points of law with ORG claiming , inter alia , that the proceedings had been unfair because ORG had used as the main and sole piece of evidence in the ruling against him a forged document , namely TIME of a ORG meeting dated DATE . ORG had given decisive weight to that document in spite of his express statement that the signature on the document was not his . He had requested to have the document authenticated by an expert , but the court had rejected his request without giving any reasons . He stressed that ORG had not relied on TIME either in his initial action or in his appeal against the judgment DATE . He had presented them for the first time during the fourth hearing before ORG . In support of his assertion that the TIME in question had been forged , the applicant submitted evidence that CARDINAL DATE he had been undergoing medical treatment in GPE and could not therefore have attended a NORP meeting held on DATE . He presented documents issued by the NORP border authorities and NORP stamps in his passport confirming his travel to GPE between the above - mentioned dates . He also reiterated his objection concerning the statute of limitations and urged ORG to quash the judgment of ORG and order a re - examination of the case .

In the proceedings before ORG , ORG presented for the first time a copy of TIME of a meeting of the company ’s shareholders which had allegedly taken place on DATE . In TIME the applicant was recorded as acknowledging that in TIME dated DATE , the date had been wrongly indicated and that the correct date should have been CARDINAL DATE .

On DATE ORG dismissed the applicant ’s appeal on points of law , upholding the judgment of ORG . It did not respond to the applicant ’s argument that ORG ’s action was time - barred or to the contention that ORG judgment had been based on a forged document . Nor did ORG respond to the applicant ’s argument that ORG had rejected without any reasons his request for an expert authentication of TIME . Instead , relying on TIME , ORG concluded that the applicant had not paid the totality of his shares in the company . ORG did not mention TIME dated DATE presented by ORG in the proceedings before it .

On an unspecified date the applicant lodged a criminal complaint against ORG , alleging that he had forged the company TIME dated DATE . In the course of the criminal proceedings , an expert from ORG presented his report dated DATE , in which he concluded that the signature on TIME of the company ORG meeting dated DATE did not belong to the applicant . The criminal proceedings are pending .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Criminal proceedings;Article 6-1 - Reasonable time)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicants complained about the excessive length of various criminal and civil proceedings ( see the appendix to this judgment ) .

All the applicants obtained decisions by ORG that found a violation of their right to a hearing within a reasonable time and awarded them various sums of money in respect of non - pecuniary damage ( see appendix ) .


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Aleš Pejchal;André Potocki;Angelika Nußberger;Dmitry Dedov;Egidijus Kūris;Ganna Yudkivska;Georgios A. Serghides;Guido Raimondi;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Linos-Alexandre Sicilianos;Nebojša Vučinić;Paul Lemmens;Pauliine Koskelo;Pieter Van Dijk;Robert Spano;Yonko Grozev;Pere Pastor Vilanova

NORP The applicant was born in DATE in GPE , in GPE ( “ GPE ” ) , and lives in GPE in the GPE of GPE .

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

According to the applicant , on DATE he was arrested by the NORP police at his place of residence in GPE and taken to ORG in GPE , where he was presented with a bill of indictment stating that he represented a threat to NORP State Security . He alleges that he was then taken to GPE by NORP officials . By his own account , he has never instituted proceedings against the NORP authorities in respect of those events .

The applicant further submits that he was arbitrarily detained and tortured in GPE in the LOC of ORG , from DATE to DATE , on the orders of PERSON , the then Minister of the Interior . He submits that he was subjected to the so - called “ roast chicken ” position throughout the entire period of detention and deprived of his basic physiological needs , particularly sleep ; he was also beaten on the soles of his feet with a baseball bat and struck all over his body with telephone cords .

The applicant submits that he suffers from a series of physical and psychological injuries and disorders .

After having been subjected to the alleged torture in GPE in DATE , the applicant fled that country in DATE and took refuge in GPE , where he applied for asylum in DATE . The applicant has since been living in GPE .

On DATE the NORP authorities granted the applicant asylum .

On DATE , having learnt that PERSON was being treated in a NORP hospital , the applicant lodged a criminal complaint against him with ORG for the Republic and GPE ( “ the Principal Public Prosecutor ” ) , for severe bodily injury , illegal confinement , insults , causing danger to health , coercion and abuse of authority . The applicant applied to join these proceedings as a civil party seeking damages .

On DATE ORG transmitted to the head of the security police , by internal mail , a request to “ attempt to locate and identify the accused individual , who [ was ] supposedly hospitalised in ORG , for heart surgery ” and “ if possible , to arrest him and bring him before an investigating judge ” . On receipt of this request , the police immediately contacted the hospital , which informed them that PERSON had indeed been a patient there , but that he had already left the hospital on DATE .

On DATE ORG made an order discontinuing the proceedings on the grounds that PERSON had left GPE and that the police had been unable to arrest him . This decision to discontinue the proceedings was not challenged by the applicant .

By his own account , on DATE the applicant asked a NORP lawyer to represent him with a view to bringing a civil action for compensation against PERSON and GPE . On DATE the lawyer informed the applicant that this type of action had never been successful and advised him not to lodge such a claim . It was allegedly impossible to lodge a civil action of this sort in GPE .

By a writ dated DATE , the applicant lodged a claim for damages with ORG ( “ ORG ” ) against GPE and against PERSON He claimed MONEY ( CHF ) , with PERCENT interest from DATE , as compensation in respect of the non - pecuniary damage arising from the acts of torture to which he had allegedly been subjected . The applicant submitted that the conditions for reparation of non - pecuniary damage provided for by Articles CARDINAL et seq . of LAW , applicable under LAW ( CARDINAL ) of LAW ( PERSON fédérale sur le droit international privé , the ORG , see paragraph CARDINAL below ) , had been met .

On DATE a hearing was held before ORG ; neither of the defendants was in attendance or represented .

By a judgment of DATE , ORG declared the claim inadmissible on the grounds that it lacked territorial jurisdiction . The relevant part of the judgment reads as follows :

“ With regard to an action in tort based on the unlawful acts that were allegedly committed in GPE by the defendants , to the claimant ’s detriment , the NORP courts do not have territorial jurisdiction under international law to examine the complaint , given that the defendants are not domiciled or habitually resident in GPE , and given also that no illegal act or detrimental outcome occurred in GPE , pursuant to sections CARDINAL and CARDINAL of the ORG . ”

Under section CARDINAL of the LDIP ( see paragraph CARDINAL below ) , the NORP courts also lacked jurisdiction under the forum of necessity , given the lack of a sufficient connection between , on the one hand , the case and the facts , and , on the other , GPE . In this connection , ORG ruled as follows :

“ All of the acts with regard to whose after - effects the claimant , a NORP national , seeks compensation for non - pecuniary damage , were allegedly inflicted on him , as he submits , in GPE in DATE , within the premises of ORG of the Interior , by ORG and its officials . The mere fact that on account of those acts the claimant applied for and received political asylum in DATE in GPE , where he has since been domiciled , does not , in itself and in the light of current case - law , amount to a sufficient connection enabling a forum of necessity to be established against the defendants in GPE and GPE . ”

By a writ dated DATE , the applicant appealed against that decision before ORG GPE ( “ ORG ” ) . His appeal was rejected in a judgment of DATE . After noting that the appellant had shown that he was unable to bring a civil action in GPE , ORG found as follows :

“ As the outcome of the present appeal depends on the immunity from jurisdiction of the respondent parties , the question whether there exists a forum of necessity in the appellant ’s place of residence can , however , remain undecided . ”

ORG thus held that the respondents enjoyed immunity from jurisdiction , since the acts of torture had been perpetrated in the exercise of sovereign authority ( iure imperii ) and not under private law ( iure gestionis ) . Referring to the judgment delivered by ORG in the case of PERSON v. GPE ( [ ORG ] , no . ORG , ORG CARDINAL-XI ) , it further considered that there had been no violation of the applicant ’s right of access to a court .

The applicant lodged an appeal with ORG , dated DATE , in which he asked it to rule that the courts of the Republic and the GPE of GPE had territorial jurisdiction and to find that the defendants did not enjoy immunity from jurisdiction . With regard to the jurisdiction of the NORP courts , he argued that the purpose of the introduction of a forum of necessity in section CARDINAL of the LDIP ( see paragraph CARDINAL below ) had been to avoid denials of justice , especially in cases of political persecution , and that he had provided sufficient evidence that he could not reasonably bring proceedings before a foreign court . As to the immunity from jurisdiction purportedly enjoyed by GPE and PERSON , the applicant submitted that the exercise of public power did not include an entitlement to commit international crimes such as torture . He specified in this regard that the very definition of torture in LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment of DATE ( hereafter : “ the Convention against Torture ” ; see paragraphs CARDINAL et seq . below ) ruled out any immunity . Lastly , he referred , in very general terms , to LAW relating to ORG ( see paragraph CARDINAL below ) .

By a judgment of CARDINAL DATE , the reasoning of which was notified to the applicant on DATE , ORG dismissed the appeal . Reiterating the reasoning in the first - instance judgment , ORG considered that the NORP courts did not in any event have territorial jurisdiction . The relevant passages of ORG judgment read as follows :

“ It must first be considered whether the NORP courts have jurisdiction to examine the action .

CARDINAL As GPE is not a party to LAW on jurisdiction and the enforcement of judgments in civil and commercial matters ( ORG , RS CARDINAL.CARDINAL.CARDINAL ) , there exists no convention rule between the CARDINAL GPE governing the question of forum , which must therefore be examined in the light of the ORG ( sections PERSON ) and CARDINAL ) LDIP ) .

CARDINAL In this instance , the jurisdiction of the NORP authorities can not be derived from the general rule concerning the international jurisdiction of the ORG of domicile of the defendant contained in section CARDINAL of the LDIP , since the respondents are not domiciled in GPE . The cantonal court was , moreover , right in finding that the criteria , set out in section CARDINAL of the ORG , for establishing jurisdiction over actions in respect of wrongful acts were not met in so far as the defendants had neither their domicile nor their place of habitual residence or business in GPE ( section CARDINAL ) PERSON ) , and neither the wrongful act nor the resultant injury occurred in GPE ( section CARDINAL(CARDINAL ) LDIP ) .

CARDINAL In the absence of an ordinary forum , the problem must be addressed under LAW of the ORG , which concerns the forum of necessity ... Under the latter provision , where no forum is provided for in GPE by the ORG and where proceedings in another country prove impossible or one can not reasonable require that they be brought in that country , the NORP judicial or administrative authorities of the locality with which the case has a sufficient connection have jurisdiction .

The application of this rule for assigning jurisdiction thus calls for CARDINAL cumulative conditions to be met : firstly , the NORP authorities do not have jurisdiction under another provision ; secondly , legal proceedings in another country are impossible or can not reasonably be required ; and , thirdly , the case in question has a sufficient connection with GPE . In the present case , the first condition is indisputably fulfilled . Fulfilment of the second condition appears more problematic , but in the light of the third condition , which merits more extensive discussion , it is not necessary to elaborate further on this question .

CARDINAL LAW of the ORG , which must be interpreted restrictively ... represents a safety valve , intended to avoid denials of justice ... in the event of a negative conflict of jurisdiction .

In this connection , ORG , in its authoritative interpretation of this provision , noted that “ there are cases that have such a tenuous connection with GPE that it is not appropriate to set in motion the entire judicial system in order to resolve them . However , section CARDINAL lays down an exception to this principle . The NORP authorities must assume jurisdiction even in cases where the connection with our country is very tenuous , where it is impossible to bring proceedings or to lodge an appeal abroad . It is for the claimant or the appellant to demonstrate this impossibility . Where this evidence has been adduced , jurisdiction reverts to the authority of the locality with which the case has a sufficient connection . Where there are several competing fora in GPE , it is the first authority before which an action is brought that has jurisdiction . Clearly , the impossibility of bringing and pursuing proceedings abroad can only be examined in the light of the tangible circumstances and of the possible consequences for the individual concerned in the particular case ; it will ultimately be for the court to recognise , or not , its jurisdiction ” .... .

Although section CARDINAL ORG may thus seem innately paradoxical in so far as proceedings for which there is no basis for connection with an ordinary forum in GPE are , ipso facto , lacking in any particular connection with this country , in such a way that determining a “ sufficient connection ” may prove challenging , and the aim pursued by DATE to prevent a formal denial of justice – difficult to achieve , this legal provision has not in practice been without effect ; the cantonal courts in particular have recognised its applicability in the areas of family law , inheritance and proceedings on debt - enforcement and bankruptcy ... .

Moreover , legal writers have noted that a subsidiary forum must necessarily be recognised in situations of political persecution ... However , neither the case - law nor legal opinion provide much in the way of guidance concerning civil actions for compensation in respect of damage resulting from crimes against humanity , life and physical integrity , committed abroad , by foreign perpetrators .

CARDINAL That being stated , it is necessary to consider what is meant by “ case ” [ “ cause ” in the NORP version ] in section CARDINAL LDIP .

It is settled case - law that the law must , in the first instance , be interpreted literally . An interpretation which deviates from the literal meaning of a text expressed in clear terms is allowable only where there are objective reasons for considering that the text fails to convey the true meaning of the provision concerned . Such reasons may derive from the drafting history , from the aim and sense of the provision concerned and from the structure and layout of the law . If the text is not absolutely clear , if it can be interpreted variously , the approach must be to seek out the true import of the provision having regard to all relevant factors , including in particular the drafting history , the intention pursued by the rule , the spirit and values on which it is based or again its relationship with other legal provisions . ORG does not favour any CARDINAL method of interpretation but adopts a pragmatic plurality in its search for the true meaning of the rule ; in particular , it takes as a basis a literal understanding of the text only where this offers , with no ambiguity , a solution that is substantively just ( ORG CARDINAL III CARDINAL § CARDINAL.CARDINAL.CARDINAL , V CARDINAL § CARDINAL.CARDINAL ; CARDINAL III CARDINAL § CARDINAL.CARDINAL.CARDINAL and the judgments cited therein ) .

In itself , the meaning to be attributed to the term “ cause ” is uncertain in the sense that it does not have a general definition in the laws of civil procedure of the LANGUAGE - speaking cantons ( see , however , Bertossa / Gaillard / Guyet/ Schmidt , PERSON procedure civile genevoise , vol . I , GPE DATE , n.CARDINAL ad LAW , concerning the force of res judicata , in which the authors consider that identical claims , in terms of their content , based on the same arguments and the same combination of alleged facts , constitute the objective limit of res judicata ; that identity is determined by the complete set of legal considerations which formed part of the first application and were adjudicated upon ; this was how “ cause ” was to be understood in former Article CARDINAL ) ; the alleged facts of the case determine an overall situation [ “ ORG ” , “ PERSON ” ] which it is for the court to assess ) but would appear to equate to “ procédure ” or “ demande en justice ” or in NORP to “ NORP ” , “ Rechtssache ” , “ Prozess ” , “ GPE ” , “ causa litigandi ” or “ ORG ” . At all events , “ cause ” is not the literal and unambiguous translation of the terms “ ORG ” or “ fattispecie ” used in the NORP and NORP versions of section CARDINAL of the LDIP . It should be borne in mind , at this point , that the latter terms are usually translated in NORP as “ énoncé ” or “ exposé des faits ” or “ état des faits ” .

As the versions of the law drafted in the CARDINAL official languages have the same standing , the question arises whether the difference between the NORP wording and that of the other CARDINAL versions results from an error in the legislative process , from a difference in meaning which becomes apparent only in the context of specific cases according to a varying understanding of the legal provision in each of the languages , or , lastly , from a linguistic difference attributable either to the non - translatability knowingly taken into account in the drafting or to uncertainty on the part of the legislator as to the meaning to be conveyed ( see PERSON , PERSON mehrsprachiger PERSON , in ORG présentés au ORG international de droit comparé , GPE DATE , p. CARDINAL et seq . , especially p. CARDINAL s. ) .

It seems clear that the first of these possibilities can be ruled out . To distinguish between the second and third possibilities the understanding of the term “ cause ” in legal NORP terminology must be considered . In this regard , the “ cause ” of the action is the basis of the claim [ “ base de la prétention ” ] ( ‘ ORG ” rather than “ ORG ” ) , though it should be noted that the legal writers are in some disagreement as to the content and scope of that basis . Some argue that the “ cause ” must be seen as a legal concept allowing the claim to be defined , while for others the “ cause ” comes down to a set of facts giving rise to the legal issues in debate or the legal interest invoked ( see PERSON / Guinchard , ORG civile , CARDINALth edition , GPE DATE , n. CARDINAL p. CARDINAL et seq . , who conclude that the “ cause ” of the action is constituted by a legally characterised set of facts ) .

In the case in point , it must be acknowledged that a comparison with the NORP and NORP versions assists in the interpretation of the NORP text , supporting the view that the term “ cause ” should be assigned the restricted meaning of “ set of facts ” or , to take a literal translation of “ PERSON ” and “ fattispeccie ” , “ exposé ” or “ état de faits ” and not “ procédure ” . In other words , it is the “ cause ” – which concerns the set of facts and the legal argumentation – rather than the person of the applicant which must have a sufficient connection with GPE .

In the present case , however , the claimant complains of acts of torture that were allegedly committed in GPE , by NORP resident in GPE , against a NORP residing in GPE . All of the specific features of the case come back to GPE , except for the fact of residence in GPE at the relevant time . The facts of the case thus have no connection with GPE , so that the question of whether or not the link with this country is sufficient does not arise . In those circumstances , it is not possible to recognise the jurisdiction of the NORP courts , short of disregarding the clear text of s[ection ] CARDINAL of the LDIP [ see paragraph CARDINAL below ] . The fact that the claimant then chose to come to GPE can not change anything , since it is a fact subsequent to the events of the case and , moreover , does not form part of it .

Since the absence of a sufficient connection between the facts of the case and GPE suffices to establish the NORP courts’ lack of jurisdiction , the appeal must be dismissed , without it being necessary to examine the issue of immunity from jurisdiction .

ORG made submissions before the Grand Chamber describing the action taken by GPE after the fall of the regime in DATE in order to establish a new democracy and a political system based on respect for human rights and the rule of law . They considered that the possibility of submitting complaints to the newly established courts was the most direct and “ natural ” means of promoting reconciliation , re - establishing social peace and improving prevention , whilst also respecting the steps taken to repair the harm done to the victims . In this context , the Government referred to LAW of DATE , worded as follows :

“ The ORG commits to implementing the transitional justice system in all areas within the timeline set by the related legislation . In this regard , no claim in respect of the non - retrospective nature of laws , or the existence of a previous amnesty or pardon , or the binding force of double jeopardy , or the statute of limitations or prescription of the crime or punishment , shall be admitted . ”

The Government observed that the constituent elements of transitional justice had already been set out in “ Organic Law no . DATE of DATE , on the introduction of transitional justice and related organisational arrangements ” , enacted by ORG on DATE and published in ORG on DATE . The respondent Government specified that Part III of Title I covered “ Accountability and criminal liability ” , in order to “ prevent impunity and ensure that offenders do not escape punishment ” ( section CARDINAL ) . Section CARDINAL provided for the establishment of specialised divisions in the courts of first instance , composed of judges who would receive special training in transitional justice . They “ [ would ] rule on cases relating to serious violations of human rights ” , including torture ( section CARDINAL ( CARDINAL)(CARDINAL ) ) , which DATE in accordance with section DATE were not subject to statutory limitation .

The Government explained that Part IV of Title I focused more specifically on “ Reparation and Rehabilitation ” ( sections CARDINAL ) . Pursuant to section CARDINAL § CARDINAL :

“ [ CARDINAL compensation of victims of violations is a right guaranteed by law and the ORG shall offer every form of sufficient , effective redress commensurate with the extent of the violations committed and the individual situation of each victim . ”

The Government further added that LAW of the law established a “ Truth and ORG ” ( ORG ) , which was an independent body whose members were chosen by ORG from among public officials known for their neutrality , impartiality and competence ( sections CARDINAL , DATE and DATE of LAW ) . Under section CARDINAL , the ORG ’s work was to cover the entire period from DATE to DATE , the date of the law ’s promulgation . The duration of the ORG ’s work was limited to DATE , starting from the date of appointment of its members ( section CARDINAL ) .

Lastly , the Government informed the ORG that , according to information obtained by it from ORG in GPE , persons who considered themselves victims of the former regime had until DATE to apply to the ORG . ORG was currently dealing with CARDINAL cases . In this capacity , it was holding hearings which , since DATE , had also been held in public . According to the information received , it was foreseen that selected cases would be transmitted to the courts at a later stage in the investigation process .

The applicant has not contested these submissions by ORG ( see paragraphs CARDINAL above ) . He specified at the hearing of DATE that he had in fact contacted the ORG and had received a simple acknowledgment of receipt in DATE , but had had no further communication from the ORG since then .