Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No 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);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in DATE and resides in GPE .

At TIME on DATE CARDINAL M. ’s house in the town of LOC ( in the NORP region ) was burgled by several persons . PERSON , his mother ( PERSON ) , his wife ( PERSON ) and PERSON ( PERSON ’s niece ) were in the house at the time . PERSON and GPE sustained bodily injuries . Various items of property , including jewellery , were stolen . Criminal proceedings were instituted by the police on DATE .

On DATE the applicant was arrested in GPE . According to the applicant , he was arrested while at home . According to official records , the applicant was arrested at TIME for swearing in public and behaving “ with insolence ” ( викликаюче ) .

On DATE the Kyiv ORG imposed on the applicant CARDINAL days’ administrative arrest for disorderly conduct .

On DATE the applicant was transported from GPE to the town of LOC ( QUANTITY ) . On DATE he confessed to the above - mentioned burglary .

On DATE the applicant was formally arrested on suspicion of having committed a crime .

On DATE a lawyer , PERSON . , allegedly hired by the applicant ’s family , submitted a request to the investigation officer for permission to represent the applicant in the criminal case against him . The lawyer also noted that since investigative actions planned for DATE had not taken place he had returned to GPE . On DATE , PERSON . was given leave to represent the applicant .

On DATE an identification parade took place in the presence of CARDINAL attesting witnesses . The victims , PERSON , GPE and PERSON , identified the applicant as the person who had been in their house on TIME . CARDINAL more persons participated in the identification parade . Their description , according to the official records , was as follows : person no . CARDINAL : QUANTITY tall , dark hair , brown eyes , wearing dark blue jeans , a grey T - shirt and trainers ; person no . CARDINAL : QUANTITY tall , dark blond hair , green eyes , wearing grey trousers , a grey T - shirt and trainers ; person no . CARDINAL ( the applicant ) : QUANTITY tall , dark blond hair , grey eyes , wearing dark blue sport pants , a T - shirt and trainers .

M.G. stated that she had recognised the applicant by his voice , height and body type . PERSON stated that he had recognised the applicant by his voice , and PERSON that she had recognised the applicant by his voice and body type .

NORP The identification parade was carried out in the absence of the applicant ’s lawyer . The police officer who conducted the parade informed his supervisor that the applicant ’s lawyer was not able to attend as he was busy in another criminal case . The applicant was offered another lawyer but refused . The record of the identification parade was signed by all those present and it was noted that the parade ’s participants had “ no complaints ” .

On DATE a lawyer , PERSON , was given leave to represent the applicant . She represented him until DATE .

On DATE the ORG sentenced the applicant to DATE imprisonment with confiscation of his property , and CARDINAL of his accomplices ( NORP and PERSON . ) to terms of imprisonment and confiscation of their property for the burglary of PERSON ’s house and the infliction of minor bodily injuries on PERSON and PERSON CARDINAL other persons involved in the crime ( P. and L. ) had not been found . The court also granted the GPE civil claims .

In the course of the trial proceedings , the applicant pleaded innocent . His testimonies at the trial could be summarised as following . In DATE he had been asked to drive NORP in exchange for payment . Zh . and My . had been with them . They had stopped near a building . Everybody except the applicant had left the car . The applicant stated that he had slept in the car for TIME a day . Then NORP , PERSON . and CARDINAL unknown persons had driven “ to the garages ” . Everybody had left and he had stayed in the car . The applicant did not know where they had gone i.e. he did not know about the burglary . The applicant further stated that he had pleaded guilty because the police officers had beaten him .

At his court hearing PERSON . pleaded partially guilty and testified that the applicant had remained in the car while PERSON ’s house was being burgled . NORP pleaded partially guilty but did not say anything regarding the applicant ’s involvement in the crime .

M. and PERSON testified that they had seen CARDINAL persons break into the house TIME . They had tied PERSON up and had taken money . PERSON had been severely beaten by NORP The former recognised the applicant since the applicant had been very frightened and he remembered his eyes . It was noted in the court hearing record that PERSON said : “ I saw [ the applicant ] , he was trembling all over , he was so stressed , I saw his eyes . I can not be mistaken ” . The aggressors had worn masks but later removed them . All of them had been shorter than NORP and the applicant , who were the tallest . PERSON testified that she had seen CARDINAL persons and that GPE had seen a fifth one , who had been in the corridor .

M.G. testified that the applicant had been very frightened and had been trembling all over . He had been similarly frightened during the identification parade . She also recognised him because of his height and voice . She remembered that he had asked her age and whether she was married . During the identification parade all QUANTITY persons had said the same sentence and she had recognised the applicant .

NORP The court found that on DATE the applicant , NORP , PERSON . , PERSON and PERSON upon prior planning had broken into the house of PERSON , had inflicted bodily injuries to PERSON and GPE , and robbed the PERSON ’s family . In this finding , the court referred to various pieces of evidence , including the record of the reconstruction of events where PERSON . explained how he , NORP , PERSON and the applicant had committed a robbery ; the record of the identification parades in which PERSON , GPE and PERSON had recognised the applicant ; and the conclusion of the forensic examination of tyre tracks found near PERSON ’s house , which matched the applicant ’s car .

In respect of the applicant ’s punishment , the court noted that the applicant was young , had positive character traits , and it was the first crime he had committed ; however , his guilt had been aggravated by the fact that he was transporting criminals to and from the place of the crime .

The applicant ’s lawyer appealed against that decision . In her appeal she stated that the applicant had been ill - treated and had pleaded guilty under physical pressure . The applicant had been paid by NORP to drive him and the others . As the applicant had been drunk , NORP had driven the car himself . The applicant had remained in the car all the time . The applicant ’s dog had also been in the car as the applicant had initially been taking him to an acquaintance to have him mated . Once there , he had been asked to drive NORP The applicant ’s lawyer also noted that during the investigation stage the victims had given contradictory statements as to whether they had seen their aggressors . Moreover , the identification parade had been carried out in the absence of a lawyer .

On DATE the NORP ORG of Appeal dismissed the appeal . The court held that the applicant ’s guilt was confirmed by the testimony of NORP and PERSON . given during the pre - trial investigation in the presence of their lawyers . The court also noted that the applicant ’s complaints of ill - treatment were unsubstantiated and that the separate ruling adopted on DATE ( see paragraph CARDINAL below ) had been quashed accordingly .

On DATE ORG of GPE rejected the applicant ’s appeal in cassation . The court noted that the applicant ’s complaints of ill - treatment had been properly checked and dismissed as unsubstantiated .

The applicant stated that police officers had beaten him in GPE and on DATE in LOC . They had hit him with a book on the head , punched him , threatened him with murder and rape , and put a gas mask over his face and blown cigarette smoke into it . After being severely beaten he had been forced to confess .

On an unspecified date the applicant made a complaint about this illtreatment .

The case - file materials contain references to an expert forensic medical examination performed on DATE ( the applicant stated that it was performed on CARDINAL DATE following his complaint lodged on DATE ) . According to the references , the expert concluded that the applicant had minor bodily injuries which could have been caused by “ items in his surroundings ” ( предмети оточуючої обстановки ) . However , the applicant stated that the expert had concluded that the injuries could not have been caused by “ items in his surroundings ” . Neither of the parties submitted a copy of the report in question .

On DATE an investigative officer of ORG issued a decision refusing to institute criminal proceedings following the applicant ’s complaints of ill - treatment . Several police officers had been questioned . They had testified that the applicant had confessed his guilt and that nobody had ill - treated him . The prosecutor also referred to the forensic medical examination report of DATE .

On DATE that decision was quashed by another prosecutor of the same prosecutor ’s office . It was noted that not all of the circumstances of the applicant ’s complaint had been looked into . In particular , it should have been ascertained why the applicant had been arrested in GPE , and under what circumstances he had sustained the bodily injuries ; his medical documents should have been studied and his complaints should have been carefully examined .

On DATE ORG refused to institute criminal proceedings against the police officers . The decision was similar to the CARDINAL of DATE .

On DATE the ORG quashed that decision and ordered an additional investigation . The court specified that the investigation should ascertain the cause of the applicant ’s injuries , whether he had had those injuries upon his arrival at FAC , and which police officers had had contact with him .

On DATE ORG again dismissed the applicant ’s complaints . In its decision it noted that the applicant had been arrested in GPE on DATE . Upon his arrest and transfer to ORG the applicant had not complained about any ill - treatment . The rest of the decision was similar to the CARDINAL of DATE .

On DATE the court quashed that decision and remitted the case for additional investigation . The court raised the same points as in its decision of DATE .

On DATE ORG adopted another refusal to institute criminal proceedings which was identical to its previous decisions . In particular , it was noted that the applicant had been arrested in GPE on DATE .

On DATE , ORG adopted a separate ruling by which it requested ORG to examine the applicant ’s complaints of ill - treatment . The court stated that the applicant had been unlawfully transported from GPE to ORG and that , according to the forensic medical report , he had had CARDINAL bruises on his chest from being punched .

On DATE the NORP Regional Court of Appeal adopted another separate ruling in which it requested ORG to examine the applicant ’s complaints of ill - treatment . The court noted that according to the conclusions of the forensic medical examination of the convicted persons , they had bodily injuries which could have been inflicted on the date and under the circumstances described by them . However , the court did not indicate whether the persons concerned included the applicant . The court also noted that the applicant had made a note on the decision ordering his arrest of CARDINAL DATE that he had been illtreated on DATE . The court further noted that on DATE the applicant had complained about ill - treatment , but the case - file contained no response to that complaint .

On DATE the NORP ORG Office quashed the decision of DATE not to institute criminal proceedings and remitted the case for additional investigation . On DATE it requested ORG to ascertain the following :

- which police officers had arrested the convicted persons and on what grounds ;

- who had conducted the “ pre - investigation ” activities ( дослідчі дії ) in respect of the applicant and prepared the relevant procedural documents ;

- who had picked up and transported the convicted persons from FAC to FAC ;

- whether the convicted persons had had bodily injuries upon their arrival at FAC .

It further requested ORG to question the personnel of FAC .

A decision not to institute criminal proceedings was adopted on DATE . It was similar to the CARDINAL of DATE . It was noted that the applicant had been arrested in GPE on DATE . The police officers of ORG had testified that the applicant had not been ill - treated but had confessed on his own free will . According to the forensic medical report of DATE , the applicant had had minor bodily injuries which could have been caused by “ items in his surroundings ” . Scratches on his wrists had been caused by handcuffs .

On DATE the NORP ORG of Appeal quashed the separate ruling of DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

On the dates set out in the appended table domestic courts and a labour disputes commission delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour . The decisions became final and enforceable . However , the applicants were unable to obtain the enforcement of the decisions in due time .

Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non - enforcement issues .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

The applicant is a private entrepreneur in the food supply sector .

Since DATE the ORG has been investigating a number of apparent offences related to forgery of food quality certificates and supply of overpriced foodstuffs for school catering in the city of GPE . As part of this investigation the police ran checks on the applicant ’s business and questioned his associates and family members .

On DATE the police instituted criminal proceedings against the applicant in the context of an investigation of unlawful food supply price increases .

On DATE the applicant was arrested by the police on suspicion of a financial offence . A record of his arrest was drawn up CARDINAL and TIME on DATE .

On DATE the applicant was taken to the Poltava Oktyabrsky District Court ( hereinafter “ the ORG ” ) , which remanded him in custody for DATE under LAW ( see paragraph CARDINAL below ) without giving any specific reasons for this decision . According to the applicant , the hearing started at TIME and the decision was taken only at TIME , when the maximum period of detention without a court decision ( TIME ) permitted under domestic law had expired . The applicant ’s lawyer lodged a formal complaint with the judge about unlawful arrest and detention . That complaint was not examined DATE .

On DATE the police instituted CARDINAL more sets of proceedings against the applicant on suspicion of other counts of the same crime .

On DATE the applicant ’s lawyer submitted to the court a further complaint about unlawful detention , in addition to the one he had submitted on the date of the hearing ( see paragraph CARDINAL above ) .

On DATE ORG remanded the applicant in custody with no maximum duration and on the basis of standard reasoning , referring to gravity of charges , risk of interference with investigation , and personal characteristics without any further explanation . In a separate ruling it rejected the applicant ’s lawyer ’s complaint ( see paragraph CARDINAL above ) that from TIME on DATE his detention had been unlawful . It noted “ Documents [ attached ] to the application [ for a warrant for the applicant ’s arrest ] refute the allegations regarding the detention of [ Mr ] ORG in terms that are not provided by law . ”

On DATE the NORP Regional Court of Appeal upheld the decision of the first - instance court . In reply to the lawyer ’s complaint about the failure to release the applicant after TIME of initial detention without a court order , the appellate court noted that on CARDINAL DATE the applicant ’s detention had been extended for DATE .

On DATE ORG extended the applicant ’s detention for DATE , i.e. until DATE , on the grounds that the applicant might avoid justice , obstruct the investigation and continue his criminal activities , and that it was necessary to ensure the implementation of procedural decisions .

On DATE the NORP ORG upheld the decision of the first - instance court .

On DATE the criminal case against the applicant was referred to the court and was received by that court on DATE . DATE the prosecution authorities called the case back to correct certain shortcomings . On DATE the court returned the case to the prosecutor , who sent the case back to the court on DATE .

On DATE the ORG examined the application for release lodged by the applicant ’s lawyer and allowed it . The applicant ’s pre - trial detention was replaced by an obligation not to abscond .

The relevant provision of the LAW reads as follows :

“ Every person has the right to freedom and personal inviolability .

No one shall be arrested or held in custody other than pursuant to a reasoned court decision , and only on grounds and in accordance with a procedure established by law .

In the event of an urgent need to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be established by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the time of detention , with a reasoned court decision in respect of the holding in custody .

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention , apprised of his or her rights , and from the time of detention shall be given the opportunity to personally defend himself or herself , or to have the legal assistance of defence counsel .

Everyone who has been detained has the right to challenge his or her detention in court at any time .

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention . ”

The relevant provisions of the Code read as follows :

“ An investigating body shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on CARDINAL of the following grounds :

NORP if the person is discovered whilst or immediately after committing an offence ;

NORP if eyewitnesses , including victims , directly identify this person as having committed the offence ;

NORP if clear traces of the offence are found on the body of the suspect or on the clothing he is wearing or which is kept at his home .

For each case of detention of a criminal suspect , the investigating body shall be required to draw up a record mentioning the grounds , the motives , DATE , time , DATE , the place of detention , the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to consult defence counsel in person before he is questioned , in accordance with the procedure provided for in paragraph CARDINAL of Article CARDINAL of the present Code . The record of detention shall be signed by the person who drew it up and by the detainee .

A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor . At the request of the prosecutor , the material which served as a ground for detention shall be sent to him as well ...

Within TIME of the arrest the investigating body shall :

( CARDINAL ) NORP release the detainee if the suspicion that he committed the crime has not been confirmed , if the term of detention established by law has expired , or if the arrest has been effected in violation of the requirements of paragraphs CARDINAL and CARDINAL of the present Article ;

( CARDINAL ) NORP release the detainee and select a non - custodial preventive measure ;

( CARDINAL ) bring the detainee before a judge with a request for a custodial preventive measure to be imposed on him or her .

If the detention is appealed against to a court , the detainee ’s appeal shall be immediately sent by the head of the detention facility to the court . The judge shall consider the appeal together with any request by the investigating body for the preventive measure . If the appeal is received after the preventive measure has been applied , the judge shall examine it within DATE of receiving it . If the request has not been received , or if the appeal has been received after the term of TIME of detention , the appeal shall be considered by the judge within DATE of receiving it .

The appeal shall be considered in accordance with the requirements of LAW . Following its examination , the judge shall give a ruling , either declaring the detention lawful or allowing the appeal and finding the detention to be unlawful .

The judge ’s ruling may be appealed against within DATE of the date of its adoption by the prosecutor , the person concerned , or his or her defence counsel or legal representative . Lodging such an appeal does not suspend the execution of the court ’s ruling .

Detention of a criminal suspect shall not last for CARDINAL .

If , within the terms established by law , the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre - trial detention facility , the head of the pre - trial detention facility shall release the person concerned , drawing up a record to that effect , and shall inform the official or body that carried out the arrest accordingly . ”

“ ... In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure , with the prosecutor ’s consent he shall lodge an application with the court . The prosecutor is entitled to lodge an application to the same effect . In determining this issue , the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody , and to establish that the evidence was obtained in a lawful manner and is sufficient for charging the person .

The application shall be considered within TIME of the time at which the suspect or accused is detained ...

Upon receiving the application , the judge shall examine the material in the criminal case file submitted by the investigating bodies , the investigator , or the prosecutor and shall question the suspect or accused and , if necessary , hear evidence from the person who is the subject of the proceedings , obtain the opinion of the previous prosecutor or defence counsel , if the latter appeared before the court , and issue an order :

( CARDINAL ) refusing to select a custodial preventive measure if there are no grounds for doing so ;

( CARDINAL ) selecting a custodial preventive measure .

The court shall be entitled to select a non - custodial preventive measure for the suspect or accused if the investigator or prosecutor refuses to apply a custodial preventive measure .

The judge ’s order may be appealed against to the court of appeal by the prosecutor , suspect , accused or his or her defence counsel or legal representative , within DATE of the date on which it was made . The lodging of an appeal shall not suspend the execution of the judge ’s order .

If the selection of the preventive measure for the detained person requires further examination of information about that person , or if other circumstances relevant to the decision on this matter need to be established , the judge may issue a decision to continue the detention for DATE , and , at the request of the suspect or accused , for DATE . Where such a need arises in respect of a person who has not been apprehended , the judge may postpone the hearing for DATE and take measures which would ensure that person ’s cooperation or issue a decision to detain a suspect or an accused for that period of time . ”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

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

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the police conducted a search of an apartment which the applicant owned . The apartment was searched because another person staying there was suspected by the police of attempted manslaughter ( tapon yritys , försök till dråp ) .

NORP The applicant claims that he , as the owner of the apartment , was not allowed to be present during the search , nor was he told why the apartment was being searched and why he could not be present . The search was conducted TIME ( at TIME ) without any special reason . The apartment had been damaged because the police had entered violently , even though the applicant had been willing to give them a key , and the police dog had damaged the floor . The applicant ’s car had also been searched .

According to the ORG , the minutes drawn up after the search indicated that the applicant , as the owner of the apartment , had been informed about the search . He had been requested to give the police the key to the security lock of the door to the apartment . As no key was available , the security lock was drilled with the applicant ’s consent . It appeared from the minutes that the applicant ’s car was never searched . Nor had the police dog entered the apartment during the search .

On DATE the applicant received the minutes drawn up after the search .

NORP By letter dated DATE , the applicant claimed compensation from ORG for the damage caused by the police .

On DATE the applicant ’s claim for compensation was rejected by ORG for lack of fault or negligence on the part of the police .

The applicant has the possibility to take the issue further by instituting a civil action in a ORG ( käräjäoikeus , tingsrätten ) but apparently he has not done so .

According to LAW ( perustuslaki , grundlagen , Act no . CARDINAL/CARDINAL ) , the sanctity of everyone ’s home is guaranteed . Measures derogating from this right , and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime , must be laid down by an Act .

Chapter CARDINAL , section CARDINAL , subsection CARDINAL , of LAW ( pakkokeinolaki , tvångsmedelslagen , Act no . CARDINAL ) provides that a search may be conducted , inter alia , if there is reason to suspect that an offence has been committed and provided that the maximum sentence applicable exceeds CARDINAL months’ imprisonment .

The person whose domicile is being searched , or in his or her absence someone else , must be given the opportunity to be present at the search and to call a witness , unless this causes delay . If none of the abovementioned persons were present at the search , the person whose domicile has been searched must be informed immediately ( LAW , section CARDINAL , subsection CARDINAL ) .

A search at domicile can not be conducted TIME and TIME unless there are special reasons ( LAW , section CARDINAL , subsection CARDINAL ) .

The search warrant is issued by the investigative organs themselves .

According to LAW , section CARDINAL , of LAW ( rikoslaki , strafflagen , as modified by Act no . CARDINAL/CARDINAL ) , a person shall be sentenced for manslaughter to imprisonment for DATE and a maximum of DATE . For an attempt , the maximum sentence is at DATE of the maximum sentence for the accomplished offence .

According to section CARDINAL , subsection CARDINAL , of the LAW anyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to punishment and that the public organisation , official or other person in charge of a public function be held liable for damages , as provided in more detail by an LAW .

Chapter DATE , section CARDINAL , subsection CARDINAL , of LAW no . CARDINAL/CARDINAL ) provides that if a public official , when acting in office , intentionally in a manner other than that provided above in this LAW violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not a petty offence , he shall be sentenced for violation of official duties to a fine or to imprisonment for DATE .

Chapter DATE , section CARDINAL , of LAW no . CARDINAL/CARDINAL ) provides that if a public official , when acting in office , through carelessness or lack of caution , in a manner other than that referred to in DATE , subsection CARDINAL , violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions , and the act , when assessed as a whole , taking into consideration its detrimental and harmful effect and the other circumstances connected with the act , is not a petty offence , he shall be sentenced for negligent violation of official duties to a warning or to a fine .

According to LAW , section DATE , of LAW ( laki oikeudenkäynnistä rikosasioissa , lagen om rättegång i brottmål , Act no . CARDINAL ) , an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges .

Under LAW and CARDINAL of LAW ( vahingonkorvauslaki , skadeståndslagen , Act no . CARDINAL ) proceedings may be brought against the ORG in respect of damage resulting from fault or negligence by its employees in the performance of their duties .


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in DATE and habitually resides in GPE .

DATE and CARDINAL DATE the applicant was charged with a number of offences , mainly of a violent nature and with an organised crime background .

On DATE he was arrested in the context of his prosecution on these charges , and subsequently remanded in custody pending trial . At the time of his request for release , which forms the subject matter of this application and is described in detail below , his detention was authorised by ORG ) until DATE .

After the events complained of , the applicant was released on DATE . However , the criminal proceedings against him appear to be still pending .

By a submission dated CARDINAL DATE , addressed to ORG ( ORG prokuratúry - “ the ORG ” ) , and received by its addressee on CARDINAL DATE , the applicant requested release .

He relied on a recent judgment of ORG ( Ústavný súd ) concerning the status of ORG ( see PERSON v. GPE , no . CARDINAL , § § DATE and DATE , DATE ) , argued that his detention on the authority of ORG had been unlawful , and maintained that his detention had in any event been unwarranted .

By a submission dated CARDINAL DATE , the applicant addressed a similar request to ORG prokuratúra - “ the OPG ” ) , where it was received on CARDINAL DATE .

Lastly , by a submission dated CARDINAL DATE , addressed to ORG and received there on CARDINAL DATE , the applicant requested release on similar grounds and offered a formal pledge that , if released , he would live in accordance with the law .

By law , all CARDINAL submissions fell to be examined at first instance by the ORG . Those made to the ORG and ORG were therefore transmitted to the ORG on CARDINAL May and DATE , respectively .

As the ORG did not grant the request formulated in the CARDINAL submissions , they fell to be judicially examined by ORG , to which they were transmitted on CARDINAL and DATE , respectively .

By way of a submission dated CARDINAL DATE , which was received by ORG on DATE , the applicant expressed objections to the handling of his case by ORG judge who was handling his detention case at first - instance , which ORG interpreted as a challenge to the judge on the grounds of bias .

On DATE the challenge was dismissed . On DATE the decision was served on the applicant and on DATE he lodged an interlocutory appeal ( sťažnosť ) , which was dismissed by ORG ( Najvyšší súd ) on DATE . The case file was returned to ORG on DATE .

On DATE ORG ordered that the request be examined in the framework of a public session ( verejné zasadnutie ) to be held on DATE .

On DATE the ORG was informed that the applicant ’s lawyer had been struck off the list of counsel and thus could no longer represent him . In response , on DATE ORG enquired of the investigator whether the applicant had been asked to appoint a new lawyer and , if so , whether he had actually done so . Later on DATE , the investigator asked the applicant to appoint a lawyer within DATE , failing which a lawyer would be appointed for him by the court .

On DATE the applicant was heard before ORG . He submitted that it was his intention to appoint a lawyer , that the DATE timescale allowed him for that purpose had been unrealistically short , and that he disagreed with having a lawyer appointed for him by court .

In the circumstances ‒ as legal representation was mandatory ‒ the public session scheduled for later on DATE had to be cancelled .

Nevertheless , on DATE , that is on DATE , the applicant also made a written submission containing his arguments and waiving his right to have the request for release examined in a public session .

On DATE the ORG appointed a lawyer for the applicant and dismissed the applicant ’s request for release .

The written version of the decision to dismiss the applicant ’s request for release was served on his courtappointed lawyer on DATE , on his subsequently appointed lawyer of choice on CARDINAL DATE , and on the applicant himself on DATE .

In it , ORG recapitulated the procedural history and the applicable statutory provisions . In addition , it observed that ORG judgment referred to by the applicant ( see paragraph CARDINAL above ) had not yet been published in LAW . Its rulings had thus not entered into force yet and ORG status was not compromised for the time being . Moreover , ORG explained in detail why it considered the applicant ’s detention necessary and why his release in return for a pledge of lawful conduct was not acceptable .

By way of an interlocutory appeal lodged by both the applicant ’s lawyer and the applicant himself , the applicant challenged the decision of CARDINAL DATE to dismiss his request for release .

The appeal lodged by his lawyer was dated DATE , was addressed to ORG , reached its addressee on DATE , and was transmitted to ORG on DATE .

The applicant ’s own appeal was dated DATE , was addressed directly to ORG , and was received there on DATE .

At the same time as lodging the appeal , the applicant challenged the entire criminal - law bench of ORG on grounds of bias , once again relying on ORG judgment mentioned above ( see paragraph CARDINAL ) .

On DATE ORG dismissed the challenge . Prior to this decision , all the ORG judges concerned had been asked to state a position in respect of the challenge and a special chamber had been appointed to rule on it .

On DATE , sitting in private ( neverejné zasadnutie ) , ORG dismissed the applicant ’s interlocutory appeal against the decision of DATE .

On DATE the applicant filed a complaint under LAW of LAW ( Constitutional Law no . PERSON . , as amended ) with ORG . The complaint was directed against ORG ( Špecializovaný trestný súd ) , which had by then come into being as the legal successor to ORG , and also against ORG and the ORG .

Relying on LAW and CARDINAL of the LAW and its constitutional equivalents , he argued that his request for release had not been determined by an independent tribunal , that its dismissal had not been supported by adequate reasoning , that he had arbitrarily been denied his right to release pending trial , and that his request had not been determined “ speedily ” .

In terms of relief , the applicant requested that the decisions of CARDINAL DATE and CARDINAL DATE be quashed , that his release be ordered , and that he be awarded MONEY ( ORG ) by way of compensation for nonpecuniary damage , plus reimbursement of his legal costs .

On DATE ORG declared the complaint inadmissible for being in essence manifestly ill - founded .

As to the complaint about the alleged failure to achieve a speedy determination of the applicant ’s request , ORG observed , in particular , that the delay in serving the ORG decision of CARDINAL DATE on his lawyer of choice and the applicant himself ( see paragraph CARDINAL above ) was due to the facts that the lawyer of the applicant ’s choice had only announced his appointment to the police , that this information had accordingly had to be transmitted to the court , which had taken some time , and that the prosecution service had failed to inform the court that , at the given time , the applicant had been transferred to a prison other than the CARDINAL known to the court , as a consequence of which the decision had been sent to a wrong address and had had to be sent again .

Examining separately the proceedings before ORG and ORG and the involvement of the ORG , ORG concluded that , taking into account all the circumstances , there had been no delays attributable to the authorities that had reached a constitutionally relevant threshold . From that perspective , ORG considered that any delays resulting from the applicant ’s challenges alleging bias had been imputable to him and that the relevance of the delays in serving the ORG decision of DATE on the applicant ( on DATE ) ‒ which had been due to a lack of coordination among the authorities concerned ‒ had been diminished by the service of that decision on the lawyer of the applicant ’s choice on CARDINAL DATE .

The written version of ORG decision was served on the applicant on DATE .


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

András Sajó;Egidijus Kūris;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

At the relevant time the applicant was a member of the teaching staff , as associate professor ( “ conferenţiar universitar ” ) , of ORG ( hereafter “ the University ” ) , which is a ORG university .

DATE the applicant submitted many requests to the education authorities of ORG for the creation of a position of full professor in his department . He claimed that he met all the required professional criteria for occupying such a position . On DATE the rector informed the applicant that for financial and other objective reasons , a new professor position could not be created .

The applicant was also a member of a non - profit organisation called ORG in GPE ( “ the Association ” ) . Its general aim was to stop the degradation of education and research standards by making known the abuses , unlawful acts and corruption in education .

On DATE , a journalist , ORG , had an article published in the newspaper PERSON liberă entitled “ Corruption at university level ” . The article stated that intellectual theft and plagiarism had been noted at ORG . The journalist stated in this connection that O.A.A. had published a book , which was mostly ( PERCENT ) a copy of another book . She nonetheless enjoyed the status of university lecturer under the protection of the deputy rector , Professor N.C.I. , who was also the scientific referent of the book .

On DATE ORG had another article published in the same newspaper , entitled “ University lecturer ostracised because he denounced university corruption ” . The article referred to the applicant , who , having noted that his disclosure about O.A.A. ’s plagiarism to the dean and the rector of ORG had not been followed up by any measures , had informed the press . Instead of benefiting from the protection provided by PERSON no . CARDINAL for employees who revealed infringements of the law within public authorities and institutions , the applicant had been invited to a meeting organised by the rector on DATE and asked why he had informed the press . On DATE another meeting was organised by the deputy rector and the dean of the applicant ’s faculty . On the pretext of redistribution of the faculty ’s space , they cleared the laboratory used by the applicant for research and practical activities with his students .

On DATE the ORG organised a press conference the main topic of which was corruption at university level . CARDINAL cases of alleged corruption were presented . While other members of the ORG referred to the corruption existent in other universities , the applicant , in his capacity as secretary - general of the ORG , delivered a speech about corruption in his own university . He referred to the cases of O.A.A. , a colleague , and of the deputy rector , N.C.I. The former had published a book called ORG that according to him was mostly ( PERCENT ) a copy of another book , PERSON , published in DATE by another author . The applicant also mentioned that the book had been written under the direct supervision and guidance of GPE , who had written a eulogistic foreword to the book .

NORP The applicant criticised the way in which N.C.I. had managed the ORG programme concerning public funding of scientific research stations ; he alleged that N.C.I. had offered funding only to stations from which he could make personal gains .

The applicant also stated that N.C.I. was benefiting from a preferential regime because of his past as former secretary of ORG . According to the applicant , N.C.I. was occupying too many positions to be able to handle them properly : professor at several different universities ; deputy rector of ORG ; president of ORG and Vineyards ; and director of the ORG programme for public funding of research stations . He was also the head of ORG and PERSON .

The applicant also stated that N.C.I. was involved in sabotaging scientific research and that in the department of LOC and PERSON led by N.C.I. there was a mafia - type organisation ( “ încregătură de tip mafiot ” ) .

Most of those statements were repeated in an article entitled “ Professor at ORG accused of corruption ” published in the DATE newspaper ORG of CARDINAL DATE .

On DATE N.C.I. lodged a joint criminal and civil complaint against the applicant for defamation . He claimed that the newspaper ORG had published an article containing the applicant ’s views expressed at a press conference on DATE .

The applicant adduced extensive documentary evidence before ORG . He submitted certificates from different universities at which N.C.I. had taught , the statute of the ORG , different documents concerning the ORG programme , including the composition of the management of the programme , and a few letters issued by the PERSON research station at which ORG had performed research activity . He also submitted several newspaper articles containing criticism of N.C.I. and O.A.A.

N.C.I. gave a statement before the court on DATE . He acknowledged that he was cumulatively occupying the positions of deputy rector of the University , president of ORG and ORG and director of the ORG programme for public funding of research stations . He also stated that even before the press conference the applicant had made defamatory statements about him in letters addressed to the rector of ORG , the dean of the Faculty of Oenology and ORG .

On DATE the court heard as a witness on behalf of the applicant ORG , one of the journalists who had written articles about the alleged corruption in ORG ( see paragraphs DATE above ) . He stated that he had attended the press conference of DATE . As regards the applicant ’s allegation that ORG was responsible for the incorrect manner in which public money had been allocated for scientific research , the journalist pointed out that on the basis of the documents he had seen on that occasion , such as salary slips and reports , it was clear to him that discriminatory treatment had been applied to the researchers working for the research stations and ORG . The very high payments received by certain members of the ORG staff had convinced the applicant that only research stations which had accepted the teaching staff agreed by the plaintiff obtained public funding . The journalist also referred to the fact that the plaintiff was occupying several teaching positions at different universities . Lastly , the journalist stated that he had based his articles about the ORG not only on the material presented by the ORG but also on documents from other sources , which he could not reveal .

By a judgment of DATE , GPE Court dismissed the criminal complaint . It held that even though the applicant could not prove the veracity of his statements , CARDINAL element of the crime of defamation was missing , namely an intent to damage the reputation of N.C.I. It also held that the applicant , convinced by the accuracy of his statements , had only intended to present a case of corruption at university level . The most relevant part of the judgment read as follows :

“ In the instant case , the defendant did not prove the accuracy of his statements despite the fact that on DATE the court ( taking into account that the morality and legality of the education system at university level is obviously a topic of public interest , and the interest of informing the public opinion and the authorities is serious and legitimate in accordance with LAW and the ORG ’s case - law – the case of PERSON v. GPE and the case of PERSON v. GPE ) had admitted all the evidence proposed on his behalf .

Moreover , the documents submitted by the defendant ( namely , the foreword of the book signed by the injured party ( N.C.I. ) , copies of the book covers of ORG and of the original PERSON , chapters from the CARDINAL books ) do not prove that the injured party encouraged plagiarism .

Some resemblance in the form and contents of the CARDINAL works that could be noted by reading in parallel certain chapters can not lead to the conclusion that the injured party was liable for not denouncing plagiarism . Such a conclusion would mean that the injured party knew perfectly well the previously published book and that he had made a comparative analysis of both works , noting some inconsistencies which he ignored ...

However , the role of that foreword ( and of any foreword in general ) is to express a point of view about a work ... and does not represent an objective and critical opinion . ”

“ Moreover , the defendant did not prove that the injured party had blackmailed the research stations ...

The documents submitted by the defendant ( copies of the pay slips of DATE issued by the ORG research station , the records of the salaries paid by the same research station to several collaborators , and the report of an assessment performed at the research station by an authority of the Agriculture Minister on DATE ) could not lead to the conclusion that the injured party had blackmailed the ORG research station ” .

“ In addition , the defendant ’s allegations that the injured party obtained undeserved profit by unlawfully occupying several positions have not been proved to be true , as the injured party acknowledged that he had several sources of income by lawfully occupying several public offices .

As regards the defendant ’s allegation about the sabotaging by the injured party of scientific research by damaging different types of hybrids and then selling the greenhouse in which the defendant carried out research was not proved by the adduced evidence .

The minute ( “ proces - verbal ” ) signed by ORG and a private company proved that the latter rented a building and the adjacent greenhouse , in which no plants were cultivated ; moreover the minute was not signed by the injured party .

Under these circumstances , after the examination of all evidence , it can not be concluded that the defendant has proved , beyond any reasonable doubt , that the aspects stated by him are true . ”

As regards the applicant ’s intent to commit defamation , the firstinstance court stated the following :

“ The court notes that the defendant ’s statements were made in the context of a press conference organised by ORG ( of which the defendant is secretary - general ) , the main topic of which was the corruption and unlawful acts committed at university level , it being well known that the main object of the ORG is the monitoring and disclosure of irregularities in the academic system .

Even though the defendant ’s speech was shocking and exaggerated , it should be regarded as part of a topic of public interest – namely , corruption among university teaching staff – and the legislative and moral reform of the teaching system , an objective desired by the whole of society .

It should be noted that before the press conference of DATE , the newspaper PERSON had published an article concerning the plagiarism of ORG , and the ORG had drafted a report concerning the situation of teaching in GPE . The report denounced the fact that university teachers were simultaneously teaching at several universities ( “ cu normă întreagă ” ) and that teachers , guilty of plagiarism and scientific fraud , were maintained in their positions at universities ( a report that should have been known by the defendant in his capacity as secretary - general of the Association ) . These aspects prove that the topic had been previously published and debated in a public context .

At the same time , another important aspect is the fact that at the conference the defendant submitted several documents , such as : time sheets ( “ fişe de pontaj ” ) , reports , the foreword written by the injured party for ORG and copies of the alleged plagiarised book ... , documents which the defendant considered as evidence of the alleged acts .

Notwithstanding that these documents did not directly prove that the injured party had committed the acts of which he had been accused , they formed the basis of the defendant ’s intimate conviction that the former was guilty of committing certain irregularities .

In this context , even though it is obvious that the honour and reputation of the injured party were objectively harmed , the court considers that this situation was the result of the speech and not an aim in itself , since the speaker had expressed his viewpoint in his capacity as a member of the ORG and not as a private person , with the intention of contributing to informing on a topic of extreme public interest , that of corruption at university level , which had already been known by the press .

Consequently , the court considers that the defendant did not act with intent to gratuitously harm the injured party ’s reputation , but with the conviction that he was revealing a corruption case . ”

The court partially allowed the civil complaint , ordering the applicant to pay compensation for non - pecuniary damage amounting to CARDINAL NORP lei ( PERSON ) ( MONEY ( ORG ) ) . It held that under the applicable civil law the applicant could be held liable for even the slightest level of fault . Therefore , the applicant was ordered to pay compensation to N.C.I. for the way he had brought to the attention of journalists the information regarding his professional activity .

The relevant passages of the decision read as follows :

“ The way in which the defendant brought this information to the PERSON attention , without clear evidence , convinced them that the presented facts were plausible ( see in this respect the statements of witness ORG , as well as the articles published in the DATE newspapers ORG and ORG ) .

Consequently , the presentation of superficial information , with a high degree of suggestibility , constitutes an illicit act .

As regards the defendant ’s liability , it must be emphasised that the court ’s finding concerning the defendant ’s good faith has relevance only in connection with the criminal complaint , given the fact that in order to establish civil liability it is enough for the court to find the slightest level of fault .

It is true that according to the ORG ’s case - law , persons acting as whistleblowers can share information concerning topics of public interest , even if shocking and disturbing ; however , they should also take into account the protection of the reputation of others , as provided for by LAW ( see PERSON and PERSON v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALI ) . ”

Appeals on points of law lodged by the parties were allowed . By a decision delivered on DATE GPE dismissed the criminal complaint , as a direct consequence of an amendment made to LAW regarding the decriminalisation of defamation . The civil complaint was left unresolved .

On DATE Professor N.C.I. , brought a separate civil action for compensation against the applicant before ORG . He claimed that certain remarks made by the applicant on DATE and other occasions had constituted an attack on his reputation .

The applicant produced extensive testimonial and documentary evidence before the court in order to demonstrate the accuracy of his statements . He adduced copies of the books ORG and Oenology , and underlined the paragraphs he said had been copied by O.A.A. He also proposed that the court hear statements from individuals working for a certain research station in order to prove that the author of the book ORG , a “ protégée ” of N.C.I. , was registered as an employee and received a salary from the ORG research station , which benefited from funding granted by N.C.I. , without ever turning up to work there . He tried to prove that despite the fact that under the applicable law , a professor does not have the right to teach at CARDINAL universities , GPE was a professor at CARDINAL universities .

On DATE ORG of First Instance allowed the action and the sum of PERSON CARDINAL was awarded to N.C.I as compensation for non - pecuniary damage . It held that the applicant was liable for the way in which he had presented the above information concerning N.C.I. to journalists , who were convinced of the accuracy of his information and had published it in newspapers . The court endorsed the reasoning of ORG in its judgment of CARDINAL DATE by copying most of the paragraphs from the latter judgment . Thus , it held among other things , that the applicant had not proved that N.C.I. had encouraged plagiarism by writing the foreword for the book The Chemistry of Wine as the role of any foreword is to express a point of view about a work and not to represent a critical opinion . The court also held that the applicant had not proved that N.C.I. had obtained undeserved profit by unlawfully occupying several positions .

The applicant was also ordered to pay ORG ’s legal expenses .

The applicant lodged an appeal on points of law against that judgment . He claimed that he had submitted enough evidence to prove the accuracy of his statements about N.C.I. He pointed out that the court had turned his statement that “ in the department of oenology there is a mafiatype organisation ( “ încregătură de tip mafiot ” ) into the statement that N.C.I. “ is involved in a mafia - type organisation ” . On CARDINAL DATE ORG dismissed the appeal , upholding the judgment of the firstinstance court . The applicant was ordered to pay the N.C.I. ’s legal expenses .

On DATE the ORG issued a decision by which it ordered the seizure of CARDINAL of the applicant ’s DATE salary up to ORG CARDINAL ( approximately ORG CARDINAL,CARDINAL ) , representing compensation for non - pecuniary damage and the legal expenses awarded to N.C.I. by the domestic courts .

On an unspecified date the ORG lodged a criminal complaint against O.A.A. accusing her of plagiarism . On DATE the prosecutor ’s office attached to ORG decided not to institute criminal proceedings against O.A.A. on the grounds that the complaint had not been lodged by the aggrieved party . It noted , however , that a significant part of the CARDINAL books , ORG and PERSON , was similar .

On DATE the ORG together with the author of the book PERSON lodged another criminal complaint against O.A.A. They also accused N.C.I. of being an accomplice to O.A.A. ’s plagiarism in his capacity as scientific coordinator of the book . On CARDINAL DATE the prosecutor ’s office attached to ORG discontinued the investigation on the grounds that the statutory time - limit for prosecuting the offence of plagiarism had expired .

On DATE the applicant lodged a complaint against the ORG ’s decision to decrease his salary of DATE on account of his unjustified absence from work . He claimed that the measure was illegal as timesheets for registering presence at work had not been introduced at ORG until DATE . Moreover , he adduced evidence according to which he had been at work on DATE in question . Among other aspects , he pointed out that the actual reason for sanctioning him was his conflict with the management of ORG because he had made public that the deputy rector had encouraged plagiarism .

By a decision of CARDINAL DATE GPE ORG allowed the applicant ’s complaint and ordered the ORG to pay him the amounts withdrawn from his salaries of DATE . The court held that under LAW the burden of proof lay with the applicant ’s employer but that it had been unable to produce any legal documents which could prove the applicant ’s unjustified absence from work .

On DATE the ORG issued a decision by which it applied a disciplinary sanction to the applicant consisting in the suspension , for DATE , of his right to apply for a higher teaching position , to obtain a teaching degree or take up a management position . The reasons for the sanction were the following : ( i ) unjustified absences from several classes and teaching activities ; ( ii ) non - compliance with the teaching curriculum ; and ( iii ) contempt and ignorance of the decisions taken by the management of the faculty and of the department concerning the clearance of a space assigned for setting up a research laboratory .

The applicant challenged the decision before GPE Court .

On DATE the county court noted that the applicant ’s action remained without object as the University had decided to revoke its decision of DATE .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

He was living in GPE together with a NORP national , to whom he was not married . On CARDINAL DATE a child was born to the applicant ’s partner ( “ the mother ” ) in GPE . The applicant is the father of the child . The child is both a NORP and a NORP national .

Following the birth , the applicant , the mother and the child lived together with the applicant in GPE until DATE , when the mother took the child from GPE to GPE . Neither of them has ever returned .

On DATE the mother petitioned ORG Okresný súd ) in PERSON ( GPE ) to make an order governing the exercise of parental rights and responsibilities in respect of the child . At the same time , she requested that , pending the final outcome of the proceedings , the ORG deal with these matters by way of an interim order .

On DATE ORG issued an interim order , pursuant to which the child was placed with the mother and the applicant was ordered to contribute towards the child ’s maintenance pending the outcome of the proceedings on the merits . It was submitted by the applicant and not disputed by the Government that the written version of the interim order was not served on the applicant before DATE and that , upon its service , the applicant was contributing to the child ’s maintenance as ordered .

The interim order remained in force until the proceedings on the merits of the mother ’s petition were terminated by ORG on DATE and , following the mother ’s appeal , by ORG ( Krajský súd ) in PERSON ( GPE ) on DATE .

These courts found that the relevant law for the determination of jurisdiction in the matter was ORG ( ORG ) No . CARDINAL of CARDINAL DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ( “ Regulation No . CARDINAL ” ) and that , under Regulation No . DATE , the crucial criterion for establishing jurisdiction over the matter was the place of habitual residence of the child . Having regard to the conclusions that had meanwhile been reached in that respect by the Bratislava I ( GPE ) ORG and ORG ( see paragraphs CARDINAL below ) , the place of the child ’s habitual residence was GPE , and the NORP courts had no jurisdiction to entertain the matter .

Meanwhile , on DATE , the applicant had complained about the removal and retention of the child by the mother before ORG responsible for implementing LAW .

Subsequently , on DATE , the applicant lodged an application with the Bratislava I ORG under LAW . CARDINAL .

In his application , he argued that the child ’s habitual residence was in GPE and that the mother had removed or retained the child wrongfully within the meaning of LAW .

Accordingly , the applicant sought an order for the child ’s return to GPE .

On DATE ORG appointed the social services department for the city of PERSON to represent the child ’s interests in the proceedings .

ORG called a hearing for DATE . However , DATE before that date , that is to say on DATE , the mother ’s lawyer asked for an adjournment on the grounds that the summons had only been received on DATE , that a copy of the application had been served on them without enclosures , and that they had consequently not had adequate time and facilities to prepare .

On DATE ORG informed the mother ’s lawyer , in response to her request of DATE , that , in view of the short time limits in proceedings under LAW , it was not possible to have the hearing postponed and that it would take place .

On DATE the mother ’s lawyer inspected the case file ; informed the court that , nevertheless , and on the same grounds as previously relied upon , they would not appear ; and insisted that the hearing be adjourned .

On DATE ORG held a hearing as scheduled , in the presence of the applicant and his lawyer , who both made oral submissions . Neither the mother , nor the child , nor the social services department on the child ’s behalf were present . The hearing was adjourned until DATE .

On DATE the mother ’s lawyer again inspected the case file and , on DATE , she lodged extensive written submissions . She explained the development of her client ’s relationship with the applicant and described it . She submitted that , in connection with her falling out with the applicant , the mother had sought care from a mental health specialist ; and that the child was closely attached to the mother and their separation was unthinkable . In addition , she submitted a letter from an association in GPE supporting women in need attesting that since CARDINAL DATE the mother had been receiving their support in connection with allegations she had made that the applicant had been mistreating her . While admitting that there was no risk of direct harm to the child , the lawyer submitted that the applicant ’s behaviour towards the mother should nonetheless be taken into account .

On DATE ORG held a hearing in the presence of the parties and their legal representatives , who all made oral submissions . The social services department on behalf of the child were not present .

At the conclusion of the hearing , ORG allowed the applicant ’s claim and ordered the child ’s return to GPE . The order had the procedural form of a decision ( uznesenie ) .

ORG established that the child ’s habitual residence was in GPE , that the mother had removed the child from there wrongfully , and that there were no obstacles to the return of the child there within the meaning of LAW . In addition , ORG pointed out that its ruling in the present proceedings had nothing to do with questions of care and residence .

As to the mother ’s specific claim that the return of the child should be declined in view of the applicant ’s behaviour toward the mother , ORG found that she had failed to substantiate her allegations . The letter from the association that had been offering care and support to the mother was solely based on the mother ’s allegations and as such could not serve to support those allegations . In her own words , the applicant had never mistreated her physically and there was nothing to support her allegations of psychological mistreatment . In that respect , ORG found it of relevance that the mother had not brought the alleged psychological mistreatment to the attention of the NORP authorities at the time when it had allegedly taken place .

On DATE the mother filed an appeal ( odvolanie ) with ORG . In the first place , she reiterated her argument concerning the time and facilities made available for preparation prior to the hearing of DATE . Moreover , she challenged ORG conclusions as regards the letter from the association that had been providing her with care and support and contended that ORG had failed to obtain a report from the mental health specialist treating her . In addition , she argued that ORG had failed to take into account the loss which the child would suffer by separation from the mother . In that respect , she relied on a written statement of the court - appointed representative for the child . Moreover , the mother claimed that risk within the meaning of LAW ( b ) of LAW did not have to be imminent , but could lie in the future . Lastly , in connection with ORG conclusions as regards the habitual residence of the child and the wrongfulness of the child ’s removal , the mother submitted that it had been her and not the applicant who had actually been taking care of the child and was better disposed and equipped to do so .

On DATE , in the procedural form of a decision , ORG dismissed the appeal and upheld the first - instance decision .

ORG fully endorsed ORG reasoning and conclusions . In addition , it pointed out that the object and purpose of LAW was to ensure immediate restoration of the status quo which has been unlawfully changed by a person who wrongfully removes or retains a child by returning the child to the country of his or her habitual residence so that questions on the merits concerning care and residence may be examined by the court in that country . The purpose of the present proceedings had nothing to do with such substantive questions and they fell within the exclusive jurisdiction of the courts of the country of the child ’s habitual residence .

ORG further held that LAW . CARDINAL represented a departure from the traditional private - international - law principle of nationality towards a principle based on the child ’s habitual residence .

On the facts of the case , ORG found no merit in the mother ’s argument concerning the time and facilities given for preparation prior to the hearing of CARDINAL DATE , pointing out that time - limits under LAW had precedence over time - limits under the national procedural rules ; that the mother and her lawyer had been duly summoned to the hearings ; and that they had been granted ample opportunities to familiarise themselves with the case and to answer it . As to the mother ’s complaints of ORG alleged failure to obtain evidence she had sought to have adduced , ORG pointed out that , under LAW of LAW , in return proceedings it was the person opposing the return who bore the burden of proof . Moreover , and in any event , some of the evidence adduced by the mother bore on questions falling outside of the scope of the present proceedings . As to the mother ’s specific allegations of mistreatment , these were contradicted by the contents of the case file , in particular by copies of her e - mail communications with the applicant and his sister , as well as by photographs of the mother , the child and the applicant from the period between the child ’s birth and her wrongful removal from GPE .

Lastly , ORG held that the order for the child ’s return by no means implied her separation from the mother , as the mother was free to return to GPE with the child and to assert her claims in respect of the child before the courts having jurisdiction to entertain them .

NORP The order for the child ’s return to GPE became final and binding on DATE .

Subsequently , on DATE , the mother lodged an appeal on points of law ( dovolanie ) with ORG ( Najvyšší súd ) of GPE . The applicant was then allowed to submit observations in reply .

On DATE ORG declared the appeal inadmissible . As to the applicable principles , it acknowledged that , in LAW proceedings , the courts are duty - bound diligently to establish the facts , and not to limit themselves to the evidence adduced by a single party to the proceedings .

As to the specific facts of the present case , ORG observed that the applicant ’s application for the commencement of the Hague Convention proceedings had been served on the mother without its enclosures . However , it held that this error had quickly been corrected when , on DATE , the mother ’s lawyer had inspected the case file ( see paragraphs CARDINAL , DATE and DATE above ) .

Moreover , ORG held that it had been wrong of the Bratislava I ORG to hold the hearing of CARDINAL DATE in the absence of the mother and her lawyer and without giving them adequate time and facilities to prepare . However , that error had also been rectified by hearing the case again on DATE . At that hearing , the mother had made extensive submissions and , in addition , she had had further ample opportunity to make her case before ORG .

Finally , as to the child , whose court - appointed representative ( see paragraph CARDINAL above ) had failed to show up without any excuse at either of those hearings , ORG observed that the representative had duly been summoned and held that , in the circumstances , the representative ’s absence had been no obstacle to the ORG proceeding with the determination of the case .

In parallel to her appeal on points of law , the mother also petitioned ORG ( “ PPS ” ) to exercise their discretionary power to challenge the lower courts’ decisions by way of an extraordinary appeal on points of law ( mimoriadne dovolanie ) .

The ORG decided not to act upon the petition , on the grounds that the mother ’s appeal on points of law and her later petition for reopening ( see paragraphs CARDINAL et seq . below ) were still pending , these remedies having precedence over an extraordinary appeal on points of law . This position was upheld in a letter of ORG of the PPS of CARDINAL DATE .

In that letter , the ORG endorsed the reasoning behind the judgment of ORG of DATE ( see paragraph CARDINAL above ) and , in addition , expressed a detailed and reasoned opinion that the order for the child ’s return was correct on merits .

In addition to the extraordinary remedies mentioned above , on DATE the mother filed a petition to have the LAW proceedings reopened ( návrh na obnovu konania ) .

The petition was dismissed by the Bratislava I ORG on CARDINAL DATE and , following the mother ’s appeal , by ORG on DATE . The grounds for the rejection were that LAW proceedings had been concluded in the procedural form of a decision ( see paragraph DATE above ) , as opposed to a judgment ( rozsudok ) , and that , in the circumstances , the reopening of proceedings concluded by a decision was not permissible by law ( LAW no . CARDINAL/CARDINAL Coll . , as amended – the “ ORG ” ) .

NORP By letter of CARDINAL DATE the applicant invited the mother to abide by the return order , to no avail .

On DATE the applicant applied to ORG for a warrant to have the return order enforced , pointing out that the order had become final and binding on DATE ( see paragraph CARDINAL above ) .

On DATE ORG called upon the mother to abide by the return order voluntarily and summoned her for an interview on DATE . In response , the mother asked for the proceedings to be stayed in view of her extraordinary appeal and petition for reopening that were still pending ( see paragraphs DATE above ) , and she did not show up for the interview .

On DATE ORG appointed ORG as the representative of the child ’s interests for the purposes of the enforcement proceedings .

ORG heard the enforcement case on DATE and CARDINAL DATE . At a further hearing called specifically for that purpose on CARDINAL DATE , it delivered a warrant for the enforcement of the return order and authorised the applicant to carry out the enforcement .

The mother and the child ’s court - appointed representative appealed to ORG , which DATE on DATE decided to stay the proceedings on their appeal . It did so observing that , in the meantime , the mother had petitioned for reopening of the LAW proceedings ( see paragraph CARDINAL above ) and that , if her petition was granted , the enforcement proceedings would be stayed by operation of law .

Following the dismissal of the mother ’s petition for reopening ( see paragraph CARDINAL above ) , on DATE ORG resumed the appeal proceedings , only to stay them again , on DATE , this time in view of the mother ’s petition to the PPS for an extraordinary appeal on points of law ( see paragraph CARDINAL above ) , which was still pending .

Following the dismissal by the PPS of the mother ’s petition for an extraordinary appeal ( see paragraph CARDINAL above ) , the appeal proceedings were again stayed on DATE , this time on the basis of the judgment ( nález ) of ORG ( Ústavný súd ) of CARDINAL DATE ( see paragraphs CARDINAL et seq . below ) .

On DATE , acting in her own name as well as that of the child , the mother challenged the decision of ORG of DATE to reject the appeal on points of law ( see paragraph CARDINAL above ) by way of a complaint under LAW no . CARDINAL/CARDINAL Coll . , as amended ) .

NORP The complaint was directed against ORG . The applicant was neither a party to the ensuing proceedings nor informed of them .

On DATE ORG declared the complaint admissible .

On DATE it gave a judgment dismissing the complaint on the merits in so far as it had been brought by the mother and , at the same time , in so far as the child was concerned , finding that ORG had violated the child ’s rights as specified below .

NORP In particular , a violation of the child ’s rights was found under LAW judicial protection ) , CARDINAL § CARDINAL ( procedural equality ) and CARDINAL § CARDINAL ( hearing in one ’s presence and opportunity to comment on evidence ) of the LAW ; LAW ( fairness ) of the LAW ; and Articles QUANTITY § CARDINAL ( consideration of the best interests of the child ) and CARDINAL ( protection and care necessary for the child ’s well - being ) and QUANTITY and CARDINAL ( expression of the child ’s views and being heard in judicial proceedings ) of the Convention on the Rights of the Child .

ORG endorsed ORG view that ORG error in respect of the mother had been rectified at the hearing of DATE .

In so far as the child was concerned , however , the child ’s views were to have been expressed by the court - appointed representative , whose failure to appear had not been a valid reason for ruling on the matter without having the child ’s views established . There were tools , including procedural fines , for ensuring the proper involvement of the court - appointed representative in the proceedings .

Consequently , the Constitutional Court quashed the challenged decision and remitted the mother ’s appeal on points of law to ORG for re - examination .

The judgment was final and not amenable to appeal .

On DATE ORG re - examined the mother ’s appeal on points of law of DATE ( see paragraph CARDINAL above ) against the return order . Being bound by ORG assessment of the case , it quashed the order and remitted the case to the first - instance court with a view to having the views of the child established by means appropriate for the child ’s age and maturity .

The Bratislava I ORG heard the case on CARDINAL and DATE . A further hearing was scheduled for DATE , but it was cancelled on the grounds that DATE before , the mother ’s lawyer had been appointed the head of ORG responsible for implementing LAW . Consequently , the lawyer had had to resign and the mother had appointed a new lawyer .

At a subsequent hearing on DATE , ORG ruled that the child was not to be returned to GPE . This ruling was upheld on DATE by ORG following the applicant ’s appeal .

The courts’ reasoning may be summarised as follows . The child ’s habitual residence for the purposes of the Hague Convention proceedings was GPE and her retention by the mother in GPE had been wrongful .

However , in view of the mother ’s objections , it had to be examined whether there was any grave risk that the child ’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation within the meaning of LAW ( b ) of LAW .

For that purpose , in addition to the other evidence taken , ORG had interviewed the child , aged CARDINAL at the time , and the child ’s courtappointed representative , and the courts had also examined complex documentary evidence , including a report from ORG as to the circumstances to which the child would be returned there .

The courts were guided by the best interests of the child , which they considered to be twofold , namely the interest in preserving relations with the child ’s family and the interest in developing in a healthy environment .

The courts found that the child was attached to the mother and , in view of the child ’s age , also to the child ’s home environment , to which the child had been introduced when it had been CARDINAL months’ old . The child only spoke NORP , attended a kindergarten in GPE and was part of an extended family circle there . The courts concluded that the child ’s removal from this environment would give rise to the risk of considerable detriment to the child and that , in the circumstances , the child ’s best interests prevailed over those of the applicant .

As regards the applicant , the courts concluded that it had been DATE since he had seen the child , that he had not been displaying a genuine interest in the child and that he had not been contributing to the child ’s maintenance .

A separation of the child from the mother did not come in question . However , the mother ’s vulnerable financial situation made it impossible to ensure proper care for the child in GPE . The child ’s removal to GPE with the mother would thus expose the child to the risk of living in poverty .

In view of those circumstances , the courts examined whether adequate arrangements within the meaning of LAW . CARDINAL/CARDINAL had been made to secure the protection of the child on its return .

In that respect , the courts expressed the view that adequate arrangements had to eliminate with the highest possible probability the risks that the child would face and that they should entail the provision of low - rent housing for the mother and the child , free of charge specialised social and psychological counselling , and a detailed explanation of the welfare benefits and supervision by social services available to the mother in GPE .

The courts held that , in so far as any guarantees had been identified by the NORP central authority , they were not specific enough . In so far as the applicant had been offering to cover the costs of the mother ’s and the child ’s air travel , the child ’s health insurance and kindergarten in GPE , and a room free of charge in his apartment there , these guarantees were found not to be adequate and the courts noted that their “ doubts as to whether he would actually keep his promises had not been assuaged ” .

The courts considered that they had established an overall picture of the social environment to which the child would return and had thoroughly examined the entire family situation . Based on the findings mentioned above , they concluded that the child ’s return under LAW was not permissible .


András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants , PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The NORP Government ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicants are the legal successors of former owners of land situated in GPE , GPE . In DATE the applicants’ legal predecessors were obliged to transfer their property to ORG without compensation . The transfer was confirmed by a protocol dated DATE issued by ORG .

On DATE , at the applicants’ request , the Minister of Economy declared the DATE protocol null and void . This decision entitled the applicants to seek compensation on the basis of the relevant provisions of LAW .

The applicants applied to ORG for compensation for the loss of profit they could have made had they had the property at their disposal . Their request concerned the period DATE ( the date of entry into force of LAW ) and DATE ( the date on which the property in question was returned to the applicants ) .

On DATE ORG refused to grant the applicants compensation for lost profit , finding that the rights to the property in question had been restored to the applicants and that they had not proved that they had sustained any further damage . It also found that according to the case - law of ORG , the applicants could not seek compensation for the loss of expected profit which they had allegedly sustained before the entry into force of LAW .

The applicants then applied to the civil courts seeking compensation for the loss of expected profit . On DATE they lodged a claim with ORG . Subsequently , they limited their claim to the period from the entry into force of the CARDINAL Constitution until DATE ; they maintained that the conduct of the authorities had prevented them from using their property even after its return . They claimed MONEY ( ORG ) and requested exemption from the court fees .

On DATE the ORG request was granted and they were exempted from court fees in excess of ORG CARDINAL ( approximately CARDINAL euros ( ORG ) ) .

On DATE the applicants further limited their claim to compensation for DATE .

On DATE ORG dismissed the applicants’ claim . The court admitted that ORG case - law had gone in CARDINAL opposite directions ; the first line of case - law accepted that in situations similar to that of the applicants they could seek both actual loss ( damnum emergens ) and loss of expected profit ( lucrum caessans ) , whereas the second line limited the compensation to actual loss only . The court decided to base its judgment on the latter case - law of ORG and held that it could not grant the applicants compensation for loss of expected profit because the right to full compensation had not been inserted in LAW until DATE , when the LAW entered into force , whereas the damage in question had occurred before that date .

Taking into consideration the incoherent case - law of ORG , ORG applied LAW and decided not to impose the costs of the proceedings on the applicants .

The applicants appealed against the first - instance judgment .

On DATE the applicants’ lawyer requested that the court stay the proceedings pending a decision by ORG on the legal issue in question .

On DATE ORG granted the request and stayed the proceedings .

On DATE ORG , sitting as a full bench , adopted a resolution ( III CZP CARDINAL/CARDINAL ) in which it acknowledged that the respective provisions of civil and administrative law had given rise to serious difficulties and to divergent interpretation in judicial practice . It held that in situations similar to that of the applicants , if a final decision had been given in breach of the law before the entry into force of LAW , compensation on the basis of LAW would not include lucrum caessans even if the loss of expected profit had happened after the entry into force of LAW .

On DATE the proceedings before ORG were resumed .

On DATE ORG referred to the abovementioned ORG resolution of DATE and held that compensation for loss of expected profit could be granted only if the wrongful decision had been issued after the entry into force of LAW . Finding that the loss in the applicants’ case had occurred before that date , it dismissed the ORG appeal .

The court did not impose the costs of the proceedings on the applicants .

The applicants did not lodge a cassation appeal , since it would not have had any prospects of success ; ORG would have had to follow the resolution adopted in DATE by ORG plenary .

Article CARDINAL of LAW , which entered into force on DATE , provides :

“ CARDINAL . Everyone is entitled to compensation for damage caused by the unlawful acts of a public authority .

A statute shall not bar access to court to persons seeking redress for any breach of their freedoms or rights . ”

LAW permits the amendment or revocation of any final administrative decision whenever necessary in the general or individual interest , if this is not prohibited by specific legal provisions . In particular , pursuant to LAW , a final administrative decision is subject to revocation if it has been issued by an authority which had no jurisdiction to do so , or if it has no legal basis or is contrary to the applicable laws .

The relevant part of LAW reads as follows :

“ A decision shall not be revoked ... if DATE has passed since the date on which it was delivered or if the decision had irreversible legal consequences . ”

Article CARDINAL § CARDINAL of LAW reads as follows :

“ If it is impossible to set aside a decision for reasons referred to in LAW , the administrative authority shall only declare that the challenged decision has been issued in flagrant breach of the law and shall give reasons for refusing to set it aside . ”

The relevant part of LAW , as applicable to the applicants’ case , reads :

“ Anyone who has suffered loss on account of the issuing of a decision in a manner contrary to LAW or on account of the revocation of such a decision may claim compensation for actual damage , unless he has been responsible for the circumstances mentioned in this provision . ”

By a judgment of DATE ( K CARDINAL/CARDINAL ) ORG declared LAW unconstitutional in so far as it limited the scope of compensation to actual damage only . ORG held that its judgment applied only to losses which had occurred after the entry into force of LAW , that is , after DATE .

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . The relevant amendments were in essence aimed at enlarging the scope of ORG liability in tort under LAW of LAW , including the addition of a new LAW . New Article CARDINAL CARDINAL § CARDINAL of the Civil Code provides that compensation can be claimed for damage caused by way of an unlawful and final decision , after the unlawfulness of such a decision has been declared in separate administrative proceedings . LAW abrogated LAW . However , under the transitional provisions of section CARDINAL of the CARDINAL Amendment , Article CARDINAL of LAW as applicable before DATE and LAW apply to all events and legal situations that subsisted before that date .

An administrative decision in respect of a compensation claim was amenable to appeal before a civil court .

Article CARDINAL § CARDINAL of LAW , as applicable after DATE , provides :

“ ORG , or [ as the case may be ] a self - government entity or other legal person responsible for exercising public authority , shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [ committed ] in connection with the exercise of public authority . ”

Following the judgment of ORG , the domestic courts , including ORG , took CARDINAL different approaches in interpreting the term “ time in which loss occurred ” .

According to the first approach , which could be observed from DATE , the decisive date was that on which the original decision had been issued . This , in turn , meant that if the decision in question had been issued before the entry into force of the LAW , only actual damage could be compensated for . The first approach was adopted by ORG in its judgments of DATE ( I CK CARDINAL/CARDINAL ) , DATE ( III CZP CARDINAL ) , CARDINAL DATE ( I CSK CARDINAL/CARDINAL ) , DATE ( I ORG CARDINAL/CARDINAL ) , DATE ( ORG CARDINAL/CARDINAL ) , DATE ( II CSK CARDINAL ) and CARDINAL DATE ( I CSK CARDINAL/CARDINAL ) .

According to the second approach adopted for the first time in DATE , loss could occur after the entry into force of the LAW even if the decision constituting the source of the loss had been issued long before that date . In such circumstances , a claimant could effectively seek full compensation for both : actual loss and expected profit . This approach was adopted by ORG in the judgments of DATE ( case no . CARDINAL ) , DATE ( I ORG CARDINAL/CARDINAL ) , DATE ( I ORG DATE ) , DATE ( I ORG CARDINAL/CARDINAL ) , DATE ( I ORG CARDINAL/CARDINAL ) and CARDINAL DATE ( I ORG ) .

On DATE the President of ORG requested that a bench of ORG composed of CARDINAL judges convene to clarify a legal question and adopt a resolution . The issue concerned the substantive law governing compensation claims in respect of damage caused by administrative decisions issued before DATE where the unlawfulness of the decisions had been declared by way of an administrative decision given after that date . The President noted , inter alia , that CARDINAL strands had developed in the case - law of ORG and other courts , against a background of serious difficulties concerning the temporal scope and consequences of the PERSON of DATE as to the applicable substantive law ( see paragraphs CARDINAL and DATE above ) . These divergences decisively affected the compensation rights of individuals in respect of whom unlawful administrative decisions had been made prior to DATE .

On DATE ORG of ORG , sitting as a bench of CARDINAL judges , requested the full composition of that ORG to adopt a resolution clarifying the issues raised by the President ( III CZP CARDINAL ) . The ORG noted that the issue had given rise to serious discrepancies in judicial practice , including that of ORG itself . Considering the importance of the issues involved and the fact that previous decisions and resolutions of ORG had failed to bring uniformity to judicial practice , a resolution by ORG of the ORG sitting as a full bench was called for .

On DATE ORG of ORG , sitting as a full bench , adopted a resolution ( III CZP CARDINAL/CARDINAL ) . It acknowledged that the applicable provisions had given rise to serious difficulties and to divergent interpretations in judicial practice . ORG held that former LAW was applicable . It further held that :

“ If a final administrative decision which was deficient ( wadliwa ) was issued before the date of entry into force of the LAW , compensation due on the basis of LAW shall not encompass lost profits , even if the damage occurred after the entry into force of LAW . ”

On DATE the Constitutional Court gave judgment ( ORG CARDINAL ) holding as follows :

“ ArticleCARDINAL § CARDINAL of the Code of Administrative Proceedings in conjunction with LAW of DATE amending LAW , as far as it limits compensation for damaged caused by an unlawful act of a public authority to actual loss in cases where the deficient final decision was issued before DATE :

a. is consistent with LAW [ rule of law in a democratic state ] and with LAW [ equality before the law ] of LAW ;

b. is not inconsistent with LAW . ”