Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

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

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

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

The applicant and his wife moved to GPE from GPE sometimes in DATE and they bought a flat in GPE from PERSON and FAC Although there was no written purchase agreement , the applicant paid the full purchase price and moved into the flat .

Meanwhile , the applicant ’s wife was admitted to a nursing home in GPE and the applicant moved to a rest home in GPE .

On DATE the applicant brought an action in ORG ( PERSON ) against PERSON and ORG , seeking a court order for the conclusion of a written sale and purchase agreement concerning the flat .

On DATE ORG ruled in the applicant ’s favour but on DATE ORG ( PERSON ) , as the court of appeal , quashed the first - instance judgment and remitted the case on the grounds of inadequate reasoning of the judgment .

In the resumed proceedings , on DATE , the applicant , represented by lawyer PERSON , amended his civil action seeking the award of title of ownership over the flat and the performance of certain construction works by PERSON and ORG

During the proceedings , PERSON and ORG lodged a counterclaim against the applicant seeking annulment of the oral sale and purchase agreement .

On DATE ORG accepted the applicant ’s action , awarded him the title of ownership over the flat and ordered PERSON and ORG to perform the requested construction works . It also dismissed PERSON ’s and ORG ’s counterclaim .

On DATE ORG upheld the first - instance judgment concerning the title of the applicant ’s ownership and the dismissal of PERSON ’s and ORG ’s counterclaim , whereas it quashed the part of the judgment concerning the performance of construction works and in that part remitted the case for re - examination .

In the resumed proceedings the applicant complained to ORG about the length of the proceedings before ORG .

On DATE the ORG found a violation of the applicant ’s right to a hearing within a reasonable time , awarded him CARDINAL NORP kunas ( HRK ) in compensation and ordered ORG to decide the case within DATE .

In DATE lawyer PERSON informed ORG that he no longer represented the applicant , and in DATE lawyer J.A.M. informed that court that he was the applicant ’s representative .

On DATE the ORG partially accepted the applicant ’s civil action concerning the construction works , ordering PERSON and ORG to carry out some additional works on the doors and windows , façade and the parquet floor in the applicant ’s flat . In addition , it authorised the applicant , in the case of a failure of B.M. and ORG to comply with that order , to carry out the construction works himself at the expense of B.M. and ORG The applicant was also awarded costs and expenses in the amount of HRK CARDINAL,CARDINAL .

This judgment was upheld on appeal by ORG on DATE . It thus became final , and on DATE it became fully enforceable .

On DATE the applicant , represented by lawyer PERSON , instituted enforcement proceedings against PERSON and FAC in ORG concerning the performance of construction works ordered in the judgment of DATE ( see paragraphs CARDINAL and CARDINAL above ) . Relying on section CARDINAL of LAW , the applicant requested that PERSON and ORG should comply with their duty to finish the construction work within DATE and , in case of a failure on their part to comply with the judgment , to pay an enforcement fine ( sudski penali ) of HRK CARDINAL for every further day of delay .

After unsuccessful friendly settlement arrangements , and several orders of ORG to correct his request for enforcement , on DATE the applicant reiterated his request , under LAW , asking that PERSON and FAC be given an additional period of DATE to comply with the judgment and , in case of a failure on their part , to pay an enforcement fine of HRK CARDINAL for every further day of delay .

On DATE ORG accepted the applicant ’s request and ordered PERSON and ORG to comply with the judgment of DATE within DATE , and , in case of a failure to that effect , to pay an enforcement fine in the amount of HRK CARDINAL to the applicant for every further day of delay .

On DATE PERSON and ORG challenged the time - limit set out for the enforcement , seeking its postponement due to the upcoming tourist season . On DATE ORG dismissed the request unfounded .

On DATE B.M. and ORG appealed to ORG against the dismissal of their request for the postponement of the enforcement , arguing in particular that the construction works could not be performed during DATE and that the applicant had denied their workers access to the flat .

On DATE ORG dismissed the appeal lodged by PERSON and ORG as unfounded , upholding ORG order for the payment of an enforcement fine .

The applicant did not seek the enforcement of that order by seeking payment of the awarded amount .

On DATE lawyer PERSON , who represented the applicant in his civil proceedings instituted against PERSON and FAC ( see paragraphs CARDINAL - CARDINAL above ) , asked a public notary in GPE to issue an enforcement order on the applicant ’s property in general for the payment of lawyer ’s fees in the amount of HRK CARDINAL,CARDINAL.CARDINAL , together with the statutory default interest .

The following day the public notary accepted the request and issued an enforcement order on the applicant ’s property . It instructed the applicant that he could lodge an objection against the order with the competent civil court within DATE following its service on him .

The material available to the ORG contains a delivery note of this decision dated DATE , bearing in handwriting the applicant ’s last name .

As there was no objection against the public notary ’s decision it became final on DATE .

On DATE the applicant , represented by lawyer PERSON , requested the public notary to re - open the proceedings arguing that he had not received the enforcement order on DATE , and that he had only later learnt of its existence . He also challenged the validity of the enforcement order .

After receiving the request , the public notary forwarded it to ORG for its examination and decision .

On DATE , after hearing the parties’ arguments , ORG declared the applicant ’s request inadmissible as being lodged out - of - time . In particular , ORG found that there was no doubt that the enforcement order issued by the public notary had been served on the applicant on DATE , which was therefore taken as the date when the DATE time - limit for lodging a request for re - opening had started running . Accordingly , as the applicant ’s request had been lodged on DATE , it followed that it was lodged out - of - time .

ORG informed the applicant that he could lodge an appeal against this decision with ORG . The applicant did not avail himself of that possibility .

Meanwhile , GPE asked ORG to enforce the public notary ’s enforcement order by the judicial sale of the applicant ’s flat . Following the applicant ’s protests , ORG on DATE invited the parties to provide further comments on the case .

After receiving the parties’ further submissions , on DATE ORG , in view of the applicant ’s specific complaints , advised him to institute a separate set of civil proceedings requesting an interdiction of the further enforcement on his property based on GPE ’s enforcement request . The applicant did not avail himself of this possibility .

On DATE a hearing was held before ORG with a view of establishing the value of the applicant ’s flat . It was decided that the competent tax authority would be requested to provide the relevant information in that respect .

On DATE ORG , on the basis of available information , set the value of the flat at HRK CARDINAL,CARDINAL and ordered its judicial sale on DATE .

On DATE PERSON asked ORG to postpone the judicial sale of the applicant ’s flat for DATE so as to allow him the possibility to settle the debt by other means .

In DATE PERSON requested ORG to resume the enforcement proceedings .

In DATE GPE informed ORG that so far he managed to receive HRK CARDINAL,CARDINAL.CARDINAL from the applicant and that the applicant still owned him HRK CARDINAL,CARDINAL.CARDINAL . He therefore adjusted his claim , asking seizure of the amount awarded to the applicant on account of costs and expenses of the proceedings against PERSON and FAC ( see paragraph CARDINAL above ) .

On DATE ORG accepted GPE ’s revised enforcement request .

It appears that the enforcement proceedings are still pending .

The relevant provisions of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE , ORG DATE , CARDINAL , CARDINAL , DATE and CARDINAL/CARDINAL ) read as follows :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

“ Everyone has a right to respect for and legal protection of his ... family life , ... ”

“ The right of ownership shall be guaranteed ... “

The relevant provisions of LAW ( Ovršni zakon , ORG , ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , DATE , CARDINAL , CARDINAL ) , which was in force between CARDINAL DATE and DATE , read as follows :

“ ( CARDINAL ) The enforcement proceedings shall be instituted upon the request of the creditor ... ”

“ ( CARDINAL ) The court shall order enforcement ... by the means and on the objects set out in the request for enforcement ... ”

( CARDINAL ) An enforcement order issued on the basis of a reliable document can be challenged by an objection .

( CARDINAL ) Reinstatement of the proceedings shall be allowed only in case of a failure to meet the time - limits for an appeal or objection . ”

“ ( CARDINAL ) In the enforcement proceedings ... the provisions of LAW shall apply mutatis mutandis , unless otherwise provided under this or some other LAW .

“ ( CARDINAL ) Against the enforcement order the debtor may lodge an appeal :

if the enforcement of the claim is , even if temporarily , postponed , prohibited , amended or otherwise impossible due to the fact which appeared at the moment when the debtor could not have raised it any longer in the proceedings in which the decision adopted ... , or

if the claim , set out in the enforcement document , is time - barred . ”

“ ( CARDINAL ) If an appeal has been lodged for one of the reasons under LAW , the first - instance court [ conducting the enforcement proceedings ] shall forward the appeal to the creditor for a comment ...

( CARDINAL ) NORP If the creditor accepts that one of the reasons referred to in the appeal exists , the court shall terminate the enforcement proceedings .

( CARDINAL ) If the creditor challenges the existence of those reasons ... , the first - instance court [ conducting the enforcement proceedings ] shall without further delay instruct the debtor that he or she can , within DATE following the finality of the decision [ by which the instruction has been issued ] , institute the civil proceedings asking for an interdiction of the further enforcement on the grounds of the existence of reasons referred to in paragraph CARDINAL of this section for which the appeal has been lodged .

“ ( CARDINAL ) NORP If in his or her objection against the enforcement order issued on the basis of a reliable document the debtor has not indicated in which part the order is challenged , it shall be presumed that the order is challenged in whole .

( CARDINAL ) If the enforcement order is challenged in whole , or only in the part in which the debtor was ordered to comply with the claim , the court to which the objection has been submitted shall set aside the enforcement order in the part in which the enforcement had been ordered ... and the proceedings shall continue as if an objection against a payment order [ issued by the competent civil court ] has been made . ”

“ ( CARDINAL ) If the debtor does not comply with his or her non - monetary duty to perform an action ... established in a final court decision ... , the court in the enforcement proceedings shall , on the basis of a request by the creditor , set out a further appropriate time - limit for the debtor [ to comply with his or her duty ] and [ it will also ] order that the debtor shall , in case of a failure to comply with his or her duty within that time - limit , pay to the creditor a certain amount of money for each day of delay ... ( enforcement fine ) , starting from the expiry of the time - limit .

( CARDINAL ) The payment of the enforcement fine can be sought until , on the basis of the enforceable [ title ] , the enforcement of the non - monetary relief is sought .

( CARDINAL ) The right to [ seek ] the enforcement fine terminates on DATE when the request for enforcement referred to in paragraph CARDINAL of this section is submitted . Enforcement of the payment of [ the amount awarded by ] the enforcement fine due on DATE can be sought [ by seizure of the debtor ’s bank accounts ] .

“ On the basis of a final decision ordering the enforcement fine under section CARDINAL of this Act , the court shall , in the same enforcement proceedings where that decision was made , upon the request of the creditor , order the enforcement of the [ amount ] awarded by the enforcement fine . ”

“ ( CARDINAL ) The enforcement of the duty to an action which can also be performed by another person shall be conducted so that the court shall authorise the creditor to commission , within a certain time - limit and on the expense of the debtor , from another person the performance of that action or to carry it out himself or herself .

( CARDINAL ) In his or her request , the creditor may ask the court to order the debtor to deposit in advance certain amount [ of money ] at the court , necessary for the expenses related to the performance of the action by the third party or the creditor . ... ”

“ Public notaries shall be competent to decide upon a request for enforcement on the basis of a reliable document , in accordance with this LAW . ”

“ ( CARDINAL ) If the public notary finds that the request for enforcement is admissible and justified , he or she shall issue an enforcement order on the basis of a reliable document and shall serve it on the parties .

“ ( CARDINAL ) The debtor may lodge an objection against the enforcement order issued on the basis of a reliable document to the public notary who issued [ the order ] .

( CARDINAL ) The public notary who received a belated or inadmissible objection against the order which he or she had issued , shall forward the case file for a decision on the objection to the competent court ( section CARDINALj ) , which shall declare such an objection inadmissible .

( CARDINAL ) The case file forwarded to the competent court ... , upon the termination of the [ relevant ] proceedings , shall remain at the court . ”

LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL and CARDINAL ) in its relevant part provides :

“ ( CARDINAL ) If a party fails to meet ... the time - limit for a procedural action and therefore loses the right take that action , the court shall , upon his or her request , allow to that party to take that action later ( reinstatement of the proceedings ) if it finds that this omission was the result of a justifiable reason .

( CARDINAL ) After the expiry of DATE following the failure [ to take the procedural action ] the reinstatement of the proceedings can not be sought .

“ ( CARDINAL ) If the defendant objects to the payment order ... , the court shall first decide upon that objection . If it finds that the objection is justified , it shall quash the payment order and , after the finality of that decision , open the proceedings on the subject matter [ of the dispute ] ...

( CARDINAL ) NORP If the court does not accept that objection , it shall open the proceedings on the subject matter [ of the dispute ] , and the decision of the court [ concerning the objection ] shall be part of the decision on the subject matter [ of the dispute ] .

The relevant provisions of LAW ( Zakon o sudovima , ORG nos . DATE , CARDINAL/CARDINAL , CARDINAL , DATE , ORG , DATE , GPE , CARDINAL and CARDINAL/CARDINAL ) , applicable in the case issue , read as follows :

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

Section CARDINAL

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

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

The relevant provision of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL , CARDINAL and GPE ) provides :

“ ( CARDINAL ) All claims established by a final court decision ... shall be time - barred after the expiry of [ the time - limit of ] DATE , even if the law provides shorter period of prescription .


Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is detained in T type prison in GPE . ORG ( “ the Government ” ) were represented by their Agent .

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

On DATE the applicant was arrested by the police on suspicion of membership of a terrorist organisation .

On DATE ORG ordered the applicant ’s pre - trial detention .

On DATE a bill of indictment was filed with ORG accusing the applicant of membership of a terrorist organisation .

On DATE the first hearing was held before ORG .

On DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment . The assize court also ordered the applicant ’s continued detention .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil 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)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

On DATE the applicant concluded a preliminary sale agreement with Mr N. regarding a plot of land with a small house under construction situated in LOC . After the signature of this agreement , the applicant started using the plot of land , she finalised the construction of the house and beautified the plot of land .

On DATE Mr N. died .

On DATE the son of the deceased , Mr N. junior , sold the plot of land to another person , who registered her property right .

Later , the applicant sought to register her property right over the plot of land and found that it already had another registered owner . She then sued Mr DATE junior before courts .

On DATE the ORG of LOC declared the sale contract of DATE null and void . Mr ORG junior was declared the owner of the plot of land and of the house .

On DATE ORG granted the applicant ’s claims against Mr N. junior and awarded her MONEY ( RUB ) for unjust enrichment and damages corresponding to different sums invested by the applicant in the plot of land and the house as well as the reimbursement of cost and expenses .

On DATE the ORG partly modified this judgment . It decreased the amount of damages to RUB CARDINAL , notably quashing the part relating to unjust enrichment .

On unspecified date the applicant lodged a supervisory review application .

On DATE the ORG of ORG partly quashed the judgment of CARDINAL DATE and sent the case for consideration anew before the second instance court . The ORG considered that ORG misapplied the provisions of LAW on unjust enrichment and miscalculated the amount of damages to which the applicant was entitled to . It concluded that these were significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect the applicant ’s right to a fair trial as guaranteed by LAW , LAW .

On DATE the ORG restored the judgment of DATE .

On CARDINAL DATE Mr N. ’s son lodged a supervisory review application .

On DATE the ORG of ORG rejected the supervisory review application lodged by PERSON son , considering that the arguments it contained were limited to a different assessment of evidence . It however quashed the judgment of DATE and restored the judgment of CARDINAL DATE on its own motion , considering that :

“ In the interest of lawfulness and taking into account the principle of legal certainty recognised by ORG the ORG considers it possible and necessary to go beyond the arguments developed in the supervisory review application .

As repeatedly indicated ORG ( ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , ORG CARDINALIX , GPE v. GPE , no . CARDINAL , DATE ) in order to preserve the aforementioned principle final judgments shall remain unchanged . The mere existence of CARDINAL points of view on the same matter does not justify the reopening of the case .

Legal certainty presupposes that it is not permissible to have a second examination of the once decided case in the absence of fundamental errors .

Taking into account the aforementioned principle , the final decision in the present case should be the judgment of ORG of DATE which granted certain damages to the claimant and rejected her claims for the rest , including as regards unjust enrichment .

In the course of the new examination by the cassation court the principles above have not been taken into account , this omission resulted in a violation of the principle of legal certainty provided by LAW and undermined the stability of a binding judicial act .

The claimant ’s argument that the judgment of DATE was lawful is not deemed to be sufficient by the ORG to disregard the aforementioned principles .

The fact that the Presidium of ORG disagreed with the aforementioned judicial decision does not constitute in itself a ground for quashing of a final and binding judgment and for reopening of the proceedings .

In view of the above , the judgment of DATE subject to the present application shall be quashed and the judgment of CARDINAL DATE restored . ”

On DATE a single judge at ORG refused the applicant ’s supervisory review application .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

The applicant was born in DATE and lives in GPE .

On DATE a new block of flats was commissioned by LAW , GPE , GPE .

According to the documents submitted by ORG to state registration authorities , on DATE the ORG of Ufa recognised his title to the flat at DATE , GPE , GPE . The state registration authorities registered ORG ’s title .

On DATE U. sold the flat to M. On DATE the state registration authorities registered the said transaction and ORG ’s title to the flat .

On DATE PERSON , acting on PERSON ’s behalf by virtue of the power of attorney , and the applicant signed a contract according to which ORG sold the flat to the applicant . PERSON and the applicant submitted the documents for the registration of the transaction and the transfer of the title to the flat to the applicant .

According to the applicant , she paid the amount due under the contract to ORG and moved into the flat while her application for the registration of the transfer of the title to the flat to her was still pending .

On an unspecified date a third party brought a civil action challenging U. ’s sale of the flat to PERSON and the latter ’s title to the flat .

On DATE the ORG issued an injunction in respect of the transactions with the flat .

On DATE the state registration authorities informed the applicant that her application for the registration of the transfer of the title to the flat could not be granted pending the outcome of the civil proceedings concerning the title to the flat .

On DATE ORG dismissed the third party ’s claims in respect of the flat in full .

On an unspecified date ORG GPE brought a civil claim seeking , inter alia , the invalidation of PERSON ’s title to the flat and the applicant ’s eviction .

On DATE ORG granted the claims in full . It invalidated the purchase of the flat by PERSON and ordered the applicant ’s eviction . The court considered that the applicant had not acquired the title to the flat and had no legal basis for moving into the flat and residing there .

On DATE ORG upheld the judgment of DATE on appeal .

On DATE ORG rejected the applicant ’s cassation appeal .

On DATE ORG of GPE rejected the applicant ’s second cassation appeal .

On an unspecified date the applicant asked ORG to stay the eviction proceedings . She submitted that the flat had been her only place of residence and that , in view of her financial situation , she was unable to buy or rent another flat . On DATE ORG stayed the eviction proceedings for DATE .

On DATE the applicant was evicted .


Aleš Pejchal;Guido Raimondi;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

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

NORP The applicant is a journalist . On DATE , he published in the DATE magazine ORG article whose title was “ Heinous agreement between the ORG and ORG ” ( “ PERSON scellerato tra mafia e Forza GPE ” ) .

The article in question stated that DATE a secret agreement was supposedly reached between an NORP political party , ORG , and ORG . The applicant reported that CARDINAL of the most important political figures within the party , Mr GPE , was suspected of having promised the adoption of more lenient legislative measures favourable to individuals accused of membership of mafia - type criminal organisations , as well as the adoption of other measures beneficial to their economic interests , in exchange for votes from the areas under ORG control .

In the article in question , the applicant contended that the existence of such a secret and illegal agreement had been revealed to colonel NORP of the carabinieri by PERSON , a prominent member of ORG who had close connections with some of the most influential figures within the criminal organisation .

In his article the applicant alleged that colonel NORP and PERSON had met a number of times from DATE onwards , and that the former persuaded the latter to become a pentito ( a former mafioso who has decided to cooperate with the authorities ) . In DATE , PERSON finally became a pentito and entered the witness protection programme . In this connection , he met with a carabinieri general and the anti - ORG prosecutors at the headquarters of the Raggruppamento Operativo Speciale ( ORG ) in GPE . Following that meeting , a first official interrogation was scheduled by the prosecutors . However PERSON was assassinated before it could take place .

The article went on to report that colonel NORP had been questioned by the prosecutors of ORG in DATE , in a set of related proceedings . Colonel PERSON gave an account of the above events and his statements were officially recorded on DATE in the context of the latter proceedings . The magazine article suggested that , in subsequent DATE , colonel NORP had been questioned on other occasions by the ORG prosecutors and that his statements had been recorded . In drafting the impugned article , the applicant had relied largely on these statements .

The applicant mentioned that criminal proceedings had been instituted against Mr GPE for aiding and abetting a mafia - type organisation from the outside ( concorso esterno ) , mostly in relation to the events described above .

The article continued by providing an account of a meeting that took place in DATE in the office of PERSON ( a lawyer and politician active within ORG ) involving Mr T. , Mr D.U. , colonel NORP , and a co - accused of Mr GPE In the meeting , ORG allegedly sought to persuade colonel NORP to modify his testimony in the above - mentioned trial ( see above paragraph CARDINAL) and to withhold the fact that Mr I. had told colonel NORP about the involvement of Mr GPE in the negotiations between ORG and the ORG .

Quoting part of a sentence extracted from the recorded statements made by colonel NORP to the ORG prosecutors , the applicant concluded his article by suggesting that another prominent figure of ORG Mr P. – had been physically present on the premises when the meeting occurred . The quotation in question reads as follows :

“ On that occasion , as on others , PERSON was also present in the chambers of Mr T. ” .

On an unspecified date following publication of the article , PERSON pressed charges against the applicant ( as well as against the editor in chief of the magazine ) for defamation through the press ( diffamazione a mezzo stampa ) . He alleged that , by quoting the above - cited statement , the applicant had implied that PERSON was actively involved in the meeting described ( see paragraph CARDINAL above ) . PERSON further argued that such an allegation , which he claimed was false , had damaged his reputation , due to the illegal purpose of the meeting in question .

On DATE , the GPE ORG delivered its judgment . The court first noted that , by placing the sentence MONEY , the applicant generated in the reader the understanding that it was an accurate representation of colonel PERSON ’s recorded statement . However , ORG also noted that the statement had not been quoted in its entirety . The complete statement , as replicated by ORG in its judgment , reads as follows :

“ On that occasion , as on others , PERSON was also present in the chambers of PERSON P. ’s presence was , however , due to other reasons , linked to their common political activity and he was not present when the position of Mr D.U. in his criminal proceedings was discussed . ”

ORG found that , read in conjunction with the rest of the article , the incomplete quotation acquired a clearly defamatory character . ORG further noted that this way of mentioning the fact that Mr P. was present on the LOC was “ unequivocally insinuating ” ( “ indubbiamente insinuante ” ) , thereby generating in the reader a suspicion as regards the role played by PERSON and suggesting that he was involved in the above - mentioned meeting .

ORG held that the applicant could not rely on his right to impart information ( diritto di cronaca ) as a justification for his conduct . ORG reiterated that the application of such a right is dependent on the precondition that the imparted information is accurate . Based on the above arguments , ORG found that the information conveyed was not correct and that it accordingly lacked the requirement of veracity .

ORG further observed that the applicant ’s conduct had breached his duty , as a journalist , to disseminate accurate and fair information , and that he had done so despite being aware of the harm that he would cause to PERSON

ORG found the applicant guilty of defamation through the press and sentenced him to CARDINAL months’ imprisonment ( enforcement suspended ) , payment of a fine of CARDINAL ( ORG ) , payment of CARDINAL ORG in compensation ( to be paid , jointly , with the magazine ’s editor in chief ) , and to bear PERSON courts costs . The ORG ordered that the conviction should not appear on his criminal record .

On an unspecified date , the applicant lodged an appeal against his conviction . He claimed that the impugned article had not been defamatory of PERSON , and that quoting the whole of colonel NORP ’s statement had been unnecessary . He further contested the penalty imposed .

In its judgment of DATE , ORG upheld the reasoning of ORG . In particular it reaffirmed that the contested passage in the article had clearly been of a defamatory nature , and that the applicant ’s conduct had been deliberate . It added that the applicant should either have refrained from mentioning PERSON at all or should have quoted colonel ORG ’s statement in its entirety in order to give an accurate account of the facts as related by the original source . The fact that the applicant chose to refer to PERSON presence without quoting the statement in its entirety proved his malicious intent .

The Court of Appeal thus reaffirmed the applicant ’s criminal liability . However , it found the penalty imposed by the ORG excessive , as regards the suspended prison sentence , and therefore replaced it with payment of a fine of CARDINAL ORG . In all other respects it upheld the sentence imposed by ORG .

The applicant filed an appeal on points of law with ORG , claiming that ORG judgment had lacked adequate and logical reasoning .

ORG declared the appeal inadmissible in its judgment of DATE , finding that the reasons put forward by both ORG and ORG were sound and sufficient .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in DATE and lives in FAC .

She was employed by ORG “ Raška Holding Kompanija ” DATE , a socially - owned company based in ORG ( hereinafter “ the debtor ” ) .

On DATE , DATE and DATE respectively , ORG ordered the debtor to pay the applicant certain amounts on account of salary arrears and social insurance contributions , plus the costs of the civil proceedings . These judgments became final on DATE , DATE and CARDINAL DATE respectively .

On DATE and DATE respectively , upon the applicant ’s request to that effect , ORG ordered the enforcement of the said judgments ; it further ordered the debtor to pay the applicant the enforcement costs .

On DATE ORG opened preliminary insolvency proceedings against the debtor .

On DATE the same court opened insolvency proceedings against the debtor .

The insolvency proceedings are still ongoing .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46-2 - General measures)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

In DATE the applicant ’s grandfather built a house in GPE . His predecessors retained ownership under the communist regime . Ownership was transferred to the applicant from his mother on DATE .

The house comprises CARDINAL flats . CARDINAL have a surface area of CARDINAL sq . m each in size , while the other CARDINAL measure QUANTITY each .

At the time the application was lodged , the flats were inhabited by tenants with a regulated rent . Their or their ORG right to use the flats had been established by decisions taken by the municipal authorities DATE . After DATE their right of use had been transformed into tenancies with regulated rent for an indefinite period .

Under the relevant legislation , the applicant had to accept that his flats were occupied by those tenants and that he could charge them no more than the maximum amount of rent fixed by the ORG ( “ the rent - control scheme ” ) . The applicant had no possibility of unilaterally terminating the leases on his flats .

Under the applicable legislation , the maximum DATE rent chargeable for the flats in DATE was the equivalent of CARDINAL euros ( ORG ) . After several increases in the regulated rent , in DATE the applicant was able to charge ORG DATE in respect of each of the smaller flats and ORG CARDINAL DATE in respect of the larger ones .

NORP The applicant contended that he , in fact , received from the tenants less than the maximum amount of rent set by the applicable legislation . To this end he led several property disputes with them and the local municipality .

The parties provided differing figures as to the market rent .

The applicant relied on data from ORG ( “ the NORP ” ) and claimed that the DATE market rent for similar flats reached ORG CARDINAL DATE .

The Government submitted an expert valuation according to which the DATE market rent for the applicant ’s flats in DATE amounted to ORG CARDINAL and ORG CARDINAL respectively .

In submissions made on DATE the applicant informed the ORG that the rent control in respect of his CARDINAL flats had been terminated . The first flat had been subject to rent control until DATE , the second and third flats until DATE , and the fourth flat until DATE .


CASE OF POLTORATSKIY AND OTHERS v. RUSSIA

Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);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 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the excessive length of their pre - trial detention . Some applicants also raised other complaints under the provisions of the Convention .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

On DATE , the applicant , CARDINAL at the time , was walking in the centre of ORG and was hit in the face by a pellet fired from an air gun .

The applicant was admitted to hospital DATE and the pellet was removed from her face . It was subsequently seized as evidence by the police . The doctors noted in the applicant ’s medical file that she had a gunshot wound on the infraorbital region of her face .

DATE she lodged a criminal complaint with the police . The applicant alleged that the shot had been fired from a particular flat in a building in the centre of ORG .

From DATE the applicant underwent outpatient medical treatment for her injury .

On DATE , at the request of the police , she was examined by an expert , who concluded that the applicant ’s injury was of a minor degree and might have been caused by a gunshot . On DATE the applicant underwent an additional medical examination , which confirmed the previous conclusion .

By decisions of CARDINAL DATE and DATE and CARDINAL DATE , the police refused to open criminal proceedings , stating that it was not possible to identify the offenders and that the applicant ’s allegations that the shot had been fired from a particular location were unfounded . They further found that there had been no serious breach of public order in the applicant ’s case and noted that the applicant could have lodged a criminal complaint directly with a court in the framework of private prosecution proceedings . Despite her repeated requests , the applicant was not given access to the police investigation file related to the incident of DATE .

On appeal by the applicant , those decisions were annulled by different prosecutors and the courts generally on the grounds that the police enquiry had fallenpellet , and that the case contained elements of the crime defined by LAW ( hooliganism ) . In particular , on DATE ORG of ORG ruled that the case should be returned to the prosecutors for further investigation .

No further investigation was carried out after that date .

By a letter of CARDINAL DATE , the Deputy Prosecutor of GPE informed the applicant that the investigation case file had gone missing . There is no information as to any further developments in that regard .

On DATE the applicant died . Her death was unrelated to the incident of DATE .


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

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

The particulars of the applicants appear in the appendix .

This application and CARDINAL others ( nos . DATE and CARDINAL ) concern the regularisation of the relationship between ownership and use of real property located in the cadastral area of ORG .

Certain land in that area was expropriated in DATE by the ( then socialist ) ORG and a public sports centre was built on it . The sports centre comprises buildings and various other facilities , such as a tennis court , a grandstand , a water station and paved areas .

After the post DATE political , constitutional and legal changes , litigation took place with a view to resolving various property claims made by the original owners ( or their legal successors ) against the entities that owned or operated the sports centre or various parts of it .

The land concerned is divided into a number of plots with various owners , many of whom are linked by family relations and history , and who had the same legal representation in the above - mentioned proceedings . Their lawsuits followed a similar pattern , but sometimes had varying results , and included the following proceedings .

The applicants in the present case are successors in title to a plot of land in the above - mentioned area , having inherited their title from the original owners , who died in DATE and DATE .

On DATE the latter of the original owners lodged an action against a sports club seeking to obtain a court order for the removal of the constructions on the land .

The principal line of argument was that the expropriation decision of CARDINAL DATE was invalid in law . The applicants were therefore the lawful owners of the land in question , in particular of plots nos . CARDINAL/CARDINAL and CARDINAL ( recorded on sheet no . CARDINAL in the “ old ” records ) , and that the defendant had no lawful title to have the constructions on the applicants’ land .

NORP The action was subsequently amended to state that , alternatively , the applicants sought a judicial ruling establishing an easement on their land for the benefit of the owner of the sports centre in return for financial compensation to be paid to the applicants . It was also extended to CARDINAL more defendants : the municipality concerned and a private company .

The action was examined and determined at first instance by ORG súd ) . In its judgment ( rozsudok ) of DATE , ORG acknowledged that ( i ) the expropriation of DATE was legally ineffective on account of procedural flaws ; ( ii ) as a consequence , the applicants were the owners of the land in question ; ( iii ) the constructions on it had been built without a valid legal title in so far as the land was concerned ; and ( iv ) the applicants were eligible to seek redress under general civil law , that is to say LAW no . CARDINAL/CARDINAL Coll . , as amended ) , which was not subject to any statute of limitation , unlike the special legislation on restitution , which contained specific time - limits ( see paragraph CARDINAL below ) .

ORG further held that , for practical reasons , it was out of the question to regularise the situation by establishing the applicants as the owners of the constructions and ordering them to pay the current owners financial compensation . Furthermore , in the circumstances , it was likewise not practical to order the physical removal of the constructions in question .

NORP However , contrary to the applicants’ assertions , ORG found that no easement could be established on the land .

The bone of contention was the legal nature of the constructions concerned . Unlike in construction law , in civil law those constructions could not be considered as “ buildings ” ( stavba ) in legal terms . An easement over land could however only be established for the benefit of the owner of a building in the given sense . In that connection , the courts relied on Article CARDINALc § CARDINAL of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) ( see paragraph CARDINAL below ) .

The court also noted that it was bound by the legal classification of the applicants’ claim . It concluded that since the constructions on their specific plots of land were not buildings , the claim had to be dismissed .

The applicants challenged the first - instance judgment by means of an appeal ( odvolanie ) to ORG ( PERSON súd).They argued , in particular , that ORG had failed to appreciate that the property in question was part of a large complex serving a single purpose and that the claims raised in respect of that property were structurally identical and had been raised separately only because they concerned different plots of land with different owners .

On DATE ORG , sitting in chambers , upheld the first - instance judgment , albeit on different grounds .

It concurred with ORG that the expropriation of DATE was legally ineffective . As a consequence , the ORG was to be considered as having taken the land in question without legal title within the meaning of section CARDINAL(CARDINAL)(p ) of the LAW on adjustment of ownership rights in respect of land and other agricultural property ( LAW no . CARDINAL/CARDINAL Coll . , as amended – “ LAW ” ) and as having subsequently acquired its title by way of prescription .

The restitution of land in such circumstances fell under the regime of the said legislation and any claims for it had to be lodged by DATE at the latest ( see paragraphs CARDINAL et seq . below ) . The applicants had failed to pursue that course of action . Asserting their property rights under general civil law , as the applicants had done , was not permissible .

In support of its conclusions , ORG referred specifically to the judgments of ORG concerning appeals on points of law in unrelated but similar cases nos . CARDINAL PERSON ( of DATE ) and CARDINAL Cdo CARDINAL/CARDINAL ( of CARDINAL DATE ) ( see paragraphs CARDINAL et seq . below ) .

On DATE the applicants lodged a complaint with ORG ( Ústavný súd ) under LAW no . PERSON . , as amended ) .

They considered the dismissal of their action arbitrary and alleged that their rights under , inter alia , LAW ( access , fairness , adequate reasoning ) and the constitutional equivalent of LAW No . CARDINAL had been violated .

Among other things , they argued that DATE on the specific facts – their case fell outside the purview of the restitution laws cited in ORG judgment and that the existence of the restitution laws as leges speciales did not exclude the application of the rules on protection of property rights under LAW as a lex generalis .

In addition , the applicants submitted that judicial practice had varied . They referred to ORG judgment in case no . CARDINALC CARDINAL/CARDINAL and its judgments in a number of other cases concerning the same sports centre , in which the application of general civil law in an identical context had been accepted . Their specific arguments about such differing practice had gone unanswered .

Moreover , the applicants emphasised that it had been DATE since the introduction of their action , a protracted period for which they bore no responsibility . They considered that , therefore , any case - law that may have meanwhile been established should not be detrimental to them .

On CARDINAL DATE ORG declared the complaint inadmissible as being manifestly ill founded .

It cited extensively from ORG judgment and concluded that its assessment of the case conformed to LAW . As to the applicants’ argument concerning the differing judicial practice , ORG noted that the applicants’ action had been lodged DATE before ORG judgment ; that , since then , the decision - making practice had evolved ; and that , at the relevant time , it had supported ORG interpretation .

The decision was served on the applicants’ lawyer on DATE .


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in DATE and lives in GPE .

The applicant suffered an incapacitating stroke in DATE which left her with severely limited mobility . In DATE she fell heavily , breaking her hip in several places . She then suffered CARDINAL further falls , both of which resulted in further hospitalisation .

The applicant has a small and neurogenic bladder . As a result , she usually has to urinate CARDINAL times a night . On account of her mobility problems she is unable safely to access a toilet or commode unaided .

In DATE , after the applicant ’s third fall , she applied to ORG ( “ ILF ” ) for DATE and night support . While the application was pending she was provided with a care package by the local authority ( GPE of GPE and ORG ) which included TIME per week of night - time care . The application to the PERSON was ultimately unsuccessful as the applicant ceased to be eligible for funding when she turned CARDINAL in DATE .

A local authority care plan dated DATE indicated that the applicant needed “ assistance with toileting , when it ’s required during the night ” . Likewise , the FACE ( Functional Analysis of Care Environments ) Overview assessment which followed on DATE noted that “ Miss ORG needs assistance to manage continence at TIME . Substantial need . ”

NORP However , the FACE Overview Assessment was subsequently amended to read “ Miss PERSON needs assistance at TIME to use the commode . Moderate need . ”

A further Needs Assessment was started on DATE and signed off on DATE . It noted :

“ PERSON wanted to emphasise that she requires assistance with all transfers and when she mobilises . PERSON requested TIME care in order [ for ] someone to assist her using commode during TIME . This is because PERSON does not wish to use incontinence pads and sheets ...

Summary of Needs Assessment

A further Needs Assessment signed off on DATE concluded that “ Miss PERSON needs assistance to use the commode at TIME . Substantial need . ” This assessment was subsequently described by Lord PERSON as “ a concession ” granted on a “ temporary basis ” ( see paragraph CARDINAL of the opinion of ORG ) .

On DATE a formal decision was taken to reduce the amount allocated for the applicant ’s DATE care from GBP CARDINAL to GBP CARDINAL . This figure appears to have been assessed on the basis that the applicant would be provided with incontinence pads in lieu of TIME - time care . This decision was taken at a meeting between the local authority and the applicant at the applicant ’s home . She was formally notified of the decision by letter dated DATE . It noted that :

“ As stated at the meeting , the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your eligible needs under the council ’s ORG criteria . The council has a duty to provide care , but we must do so in a way that shows regard for use of public resources . ”

On DATE the applicant sought permission to apply for judicial review on the ground that the local authority was unreasonably and unlawfully failing to meet her assessed and eligible needs . She further submitted that the local authorities’ actions would cause her to suffer indignity which would amount to an interference with her right to respect for her private life in breach of LAW .

Pending judicial consideration of the applicant ’s complaints , a “ holding compromise ” was reached : from DATE she continued to receive TIME - time care DATE and DATE and DATE she received TIME - time care DATE . During this period the applicant ’s partner stayed with her when TIME - time care was n’t provided in order to assist her . In DATE all night - time care was withdrawn .

On DATE the application was refused by a Deputy High Court Judge . Although the judge accepted that the local authority was obliged to meet the applicant ’s assessed need , she found that the assessed need was not “ assistance to use the commode at night ” but rather ensuring the applicant ’s safety . The judge considered there to be CARDINAL ways to meet that need : the provision of a TIME - time carer or the provision of incontinence pads . The statutory scheme requiring that the applicant ’s needs be met allowed the local authority some flexibility about how that was to be done and the local authority was therefore quite entitled to meet the need in the most economic manner . The judge further considered the applicant ’s complaints under LAW to be “ parasitic ” upon the first ground being established and did not , therefore , consider that they raised any issues which needed to be gone into .

Following that decision , the local authority carried out a ORG . The review , which was dated DATE , concluded that

“ It remains ORG view that the use of incontinence pads is a practical and appropriate solution to PERSON night - time toileting needs . There does not seem to be any reason why this planned reduction to provide care should not go ahead ... ”

After a visit to the applicant ’s home on DATE , a further ORG was conducted . It was noted that “ PERSON did not want to discuss the option of using incontinence pads or PERSON sheets ( absorbent sheets ) as a way of meeting her toileting needs ” . The ORG concluded :

“ I remain of the opinion that PERSON need to be kept safe from falling and injuring herself can be met by the provision of equipment ( pads and/or absorbent sheets ) . She has however consistently refused this option . I am aware that she considers pads and/or sheets to be an affront to her dignity . Other service users have held similar views when such measures were initially suggested but once they have tried them , and been provided with support in using them , they have realised that the pads / sheets improve the quality of life by protecting them from harm and allowing a degree of privacy and independence in circumstances which , as the result of health problems , are less than ideal . The practicalities can be managed within the existing care package to accommodate PERSON preferred TIME and to allow her to be bathed in TIME and/or have sheets changed . If PERSON were willing to try this option , she might similarly alter her views .

In light of her entrenched position on this , and despite the council ’s view that pads and/or sheets are the best way to ensure PERSON safety , consideration has been given to ORG as a means by which PERSON could continue to receive support throughout DATE and night . This would be consistent with her wish to receive personal care and also remain living independently in the community . It is not the recommended option because being assisted to access the toilet at night carries a risk of falls , but has been explored because of the impasse as regards the use of pads . Such accommodation will make support available TIME a day and reduce any longer term need to provide residential care to PERSON should her needs increase in future . PERSON refused this option when it was discussed with her . ”

The applicant applied to ORG for permission to appeal against the refusal of permission to apply for judicial review on the grounds first , that the reduction in funding was inconsistent with the assessment of her night - time needs ; secondly , that the reduction in funding violated her rights under LAW ; and thirdly , that in reducing her funding the local authority had failed to comply with its obligations under LAW DATE . In particular , she argued that if forced to use incontinence pads she would “ lose all sense of dignity ” and , as a consequence , she would suffer considerable distress . The local authority submitted that the provision of a night - time carer would cost GBP CARDINAL per year , which would have to be paid out of the adult social care budget from which all other community care services for adults in the applicant ’s borough were funded . The local authority also argued that the use of pads would ensure the applicant ’s safety and provide her with greater privacy and independence in her own home . Finally , the local authority submitted that the DATE funding of GBP CARDINAL could be used according to the applicant ’s preferences . She could therefore pay for a TIME visit for the purpose of fitting the pads , and even a subsequent visit if necessary .

Upon the applicant ’s application for permission to appeal , a single Lord Justice granted permission and directed that the claim for judicial review should be heard by ORG . In a decision dated CARDINAL DATE ORG departed from the judgment of ORG insofar as it did not consider that it was appropriate for the courts to re - categorise the applicant ’s needs as assessed by the local authority . It therefore found that DATE ( the date of the disputed decision letter ) and DATE ( the date of its first care plan review ) the applicant ’s assessed need had been for assistance to use a commode . In failing to provide such assistance , the local authority had been in breach of its statutory duty . However , it had mitigated the breach by entering into an arrangement with the applicant ’s partner . Moreover , the DATE decision had not been put into operation and applicant ’s need had been reassessed in ORG of DATE and DATE . As a consequence , the court found that the applicant had no substantive complaint under this head .

With regard to the complaint under LAW , ORG found that the conditions for finding a breach had not been established . Even though the local authority had failed in its duty at the time of its DATE decision , the error was not born of any lack of respect for the applicant ’s dignity but of a concern to perform the difficult task of balancing its desire to assist the applicant with its responsibilities to all its clients within the limited resources available to it .

Finally , the court held that there had been no failure to comply with any obligations under LAW DATE .

The applicant was granted permission to appeal to ORG . She argued that : ORG had been wrong to hold that the DATE and DATE Care Plan Reviews were to be read as including a reassessment of her needs ; the decision to provide her with incontinence pads instead of a TIME - time carer had unjustifiably interfered with her rights under LAW ; and there had been a failure to comply with LAW DATE .

By a majority , ORG agreed with ORG that the applicant ’s needs had been reassessed on DATE , as the local authority had been entitled to do ; that , from DATE , there had been no interference with the applicant ’s rights under LAW ; and that there had been no failure to comply with LAW DATE .

With regard to the complaint under LAW observed that even if a direct link existed between the measures sought by the applicant and her private life , the clear and consistent jurisprudence of ORG established that GPE enjoyed a wide margin of appreciation in striking a fair balance between the competing interests of the individual and of the community as a whole . He went on to state that :

“ There is , of course , a positive obligation under LAW a person ’s private life . But it can not possibly be argued that such respect was not afforded here . As already indicated , the respondents went to great lengths both to consult the appellant and [ her partner ] about the appellant ’s needs and the possible ways of meeting them and to try to reach agreement with her upon them . In doing so they sought to respect as far as possible her personal feelings and desires , at the same time taking account of her safety , her independence and their own responsibilities towards all their other clients . They respected the appellant ’s human dignity and autonomy , allowing her to choose the details of her care package within their overall assessment of her needs : for example , TIME of care attendance , whether to receive direct payments in order to employ her own care assistant , and the possibility of other options like extra care sheltered housing . These matters are all fully covered in paras CARDINAL , DATE and CARDINAL of ORG judgment below . Like him , I too have the greatest sympathy for the appellant ’s misfortunes and a real understanding of her deepest antipathy towards using incontinence pads . But I also share ORG view that the appellant can not establish an interference here by the respondents with her LAW . I add only that , even if such an interference were established , it would be clearly justified under LAW save , of course , for the period prior to the DATE review when the respondent ’s proposed care provision was not ‘ in accordance with DATE on the grounds that it is necessary for the economic well - being of the respondents and the interests of their other service - users and is a proportionate response to the appellant ’s needs because it affords her the maximum protection from injury , greater privacy and independence , and results in a substantial costs saving . ”

In her dissenting opinion , PERSON considered that the need for help to get to the lavatory or commode was so different from the need for protection from uncontrollable bodily functions that it was irrational to confuse the CARDINAL and to meet the need for CARDINAL in a manner appropriate for the other . She would therefore have allowed the appeal .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Stefan Trechsel

The applicant was born in GPE in DATE and arrived in GPE in DATE with her sister and mother , who had married a NORP .

DATE , at DATE , she was allegedly repeatedly sexually assaulted by a family friend , PERSON , DATE at the time , who together with his wife often took care of her and helped her in preparations for beauty contests .

NORP In DATE the applicant told her mother about the alleged sexual assaults by X , but was unwilling to talk about them with anyone else .

On DATE a priest gave a statement to the GPE police , in which he said that the applicant ’s mother had told him about her concern that the applicant had been raped by X.

On DATE the applicant ’s mother lodged a criminal complaint against X , in which she alleged that X had forced the applicant to engage in sexual intercourse with him on several occasions .

On DATE the applicant was questioned by GPE police officers and described how X had forced her to engage in various sexual activities . As regards the time frame of the assaults , the applicant stated that X had first attempted to kiss her before DATE , when she had started modelling for fashion shows . She proceeded to give an account of a number of occasions when PERSON had sexually assaulted her . On CARDINAL occasion X had lain on top of her while she was sleeping at his house and had attempted to have sexual intercourse with her , spreading her legs with one hand and putting his other hand over her mouth to prevent her from screaming , but he was interrupted by his younger son coming up the stairs . On another occasion , when they were at a swimming pool , he had groped her in the water . On yet another occasion X had allegedly taken the applicant to an abandoned workshop owned by his family and performed oral sex on her . Moreover , according to the applicant , X had forced her to perform oral sex on him CARDINAL times , once at his home , once at his company ’s garage , and the third time in his van , which he had parked in woods near the town . On that last occasion the applicant had allegedly tried to escape ; however , being unfamiliar with the surroundings , she had come back to the van . The applicant stated that X had on several occasions attempted to have intercourse with her , but that she had not been certain whether he had managed to achieve penetration . She further stated that she had tried to defend herself by crying and pushing NORP away , but without success .

The applicant was also examined by an expert in gynaecology , who found that her hymen was intact . Moreover , in the course of DATE and DATE the police questioned PERSON , who denied any sexual relations with the applicant , and CARDINAL other people .

Following a series of unsuccessful attempts to obtain specific information from the police as regards the progress of the investigation , the applicant ’s mother complained to ORG ( hereinafter “ ORG Office ” ) .

On DATE ORG sent a letter to the GPE police , urgently requesting a copy of the criminal complaint lodged against X.

On DATE the police sent a report to ORG stating that the applicant had failed to provide a detailed account of her allegations or to indicate the locations where the alleged rapes had taken place . The police noted that the applicant had given the impression of being under severe psychological stress and in fear of her mother ’s reaction . They concluded that it was impossible to confirm her allegation of rape , and equally impossible to establish the reasons for her serious emotional distress .

On DATE ORG lodged a request for a judicial investigation in respect of X based on charges of sexual assault on a minor below DATE . The request alleged that X had forced the applicant to engage in oral sex and had had sexual intercourse with her on CARDINAL occasions , despite her refusal and attempted resistance .

On DATE X was summoned to appear before the investigating judge of ORG . He refused to give an oral statement . On DATE X , represented by a lawyer , submitted a written statement in which he denied the charges . He also submitted a medical report which indicated that his left arm had been disabled since birth .

On CARDINAL DATE the investigating judge issued a decision to open a criminal investigation in respect of X. An appeal by GPE against this decision was rejected by the pre - trial panel of ORG .

On DATE the applicant was examined as a witness before ORG , which had been asked to carry out the witness examination because the applicant lived in the area . The examination resumed on DATE . Neither X nor his counsel was informed of this examination . The applicant testified in detail as to when , where and how the alleged offences had taken place . She first described the assault which had occurred in GPE ’s house , while she had been sleeping there , reiterating that X had been disturbed by his son . According to the applicant ’s statement , the second assault had occurred when , instead of driving the applicant home , X had parked in the woods and started to kiss her forcefully . X had then undressed the applicant , parted her legs with one hand and held her wrists with the other and again attempted to have intercourse with her , but there had been no penetration . The applicant further recounted that X had on another occasion taken her to the family ’s abandoned workshop and had performed oral sex on her . She stated that she had attempted to free herself of his grip , but that X had again pinned her wrists down and also slapped her across the face . Again , vaginal intercourse had been attempted but had not actually occurred . X had ordered her not to talk to anyone about this , or he would have her and her family deported from GPE . The applicant added that she remembered these CARDINAL occasions well and the events had occurred just as she described them , and that there had been a number of other similar incidents DATE .

On DATE and DATE PERSON ’s wife and another witness were examined by the investigating judge of ORG .

On DATE the ORG , at the request of ORG , examined witness NORP , who testified that the applicant had told her of the alleged rape .

On DATE the investigating judge examined witness PERSON , who was an employee of the company owned by ORG and his wife . PERSON testified that she had not seen X behaving improperly towards the applicant on the company ’s premises .

On DATE the investigating judge appointed an expert in gynaecology , B. , in order to establish the probability that the applicant had engaged in sexual intercourse in the period DATE . The latter carried out a consultation with the applicant , who refused a clinical examination . She told PERSON , among other things , that despite the attempts made by X there had been no actual sexual penetration . During the consultation , PERSON confronted the applicant with an orthopaedics report stating that PERSON could not have used his left arm in the ways described by her , to which the applicant answered that she had seen X use it to lift heavy items . PERSON also presented the applicant with the police report stating that she had not been able to give a detailed account of the sexual assaults and specific locations , and asked her why she had not defended herself against X , for instance by scratching or biting . The applicant replied that she had not defended herself and had been unable to do so . On DATE the expert prepared his report , which was based on the evidence in the file , including a gynaecological report from DATE which showed that the applicant ’s hymen was intact at that time , and the conversation with the applicant . He found that there was nothing to indicate with certainty that the applicant had had sexual intercourse with X at the material time . In addition to his medical opinion , the expert commented that there were certain inconsistencies in the applicant ’s account of the events in issue . It can be seen from the report that neither of the alleged inconsistencies was related to any medical issue .

On DATE the investigating judge appointed an expert in clinical psychology , NORP The latter , after holding a consultation with the applicant , submitted her report on DATE , and concluded as follows :

“ Since DATE Y. has shown all the symptoms of a victim of sexual and other kinds of abuse ( emotional , behavioural and physical symptoms ) ...

In addition to the emotional consequences , the girl shows very typical behavioural patterns relating to the abuse experienced by her , and also some physical symptoms ( disturbed sleep , nightmares , collapsing ) . The symptoms are indicated in the report ...

The gravity of the consequences – physical and sexual in DATE is difficult to assess at the present time . But , like the short - term ones , the long - term consequences can be predicted . Their real extent will become apparent at key stages of the girl ’s life and in stressful situations ...

Because of these effects , which are most serious in her psychological sphere ... it is of very marginal importance whether during the perpetrator ’s violent behaviour the child victim experienced hymen defloration or not ...

Sexual behavioural patterns can only be assessed properly by an expert in clinical psychology ... ”

On DATE the GPE district prosecutor ’s office indicted X for sexual assault of a child below DATE under LAW and CARDINAL of LAW . An objection by X to the indictment was rejected by the pre - trial panel of ORG on DATE .

ORG scheduled a hearing for DATE . However , the hearing was adjourned at ORG request on the basis of a document which showed that he was now on sick leave for DATE .

A hearing was then scheduled for DATE , but adjourned at ORG ’s counsel ’s request . The next hearing was to be held on DATE . However , owing to the absence of a jury member , the hearing was adjourned . Subsequently , X informed the court that he was about to go on a business trip , for which reason the next hearing was postponed until DATE .

On DATE X failed to appear before the court . On DATE he submitted a sick - leave certificate .

On DATE X ’s counsel informed the court that X had revoked his power of attorney and that he would be represented by another lawyer , PERSON , from then on . However , the court received no new power of attorney authorising PERSON to act as X ’s counsel . Since X was accused of a criminal offence requiring mandatory representation , on DATE the court appointed PERSON as counsel for X .

On DATE the court held a hearing , from which the public was excluded on the grounds of protection of privacy and public morals . The court heard evidence from X. At the hearing the applicant ’s counsel sought to have PERSON , X ’s counsel , disqualified on the ground that in DATE the applicant and her mother had sought advice from him on the matters in issue . Furthermore , the applicant ’s mother had been intimately involved with him . PERSON denied that he had ever seen the applicant or her mother and said that he only knew that the lawyer at whose firm he had been working at that time had represented the applicant ’s mother ’s estranged husband in divorce proceedings . The panel dismissed the application , ruling that no statutory grounds existed for disqualifying PERSON as counsel .

On DATE X submitted written pleadings , claiming that he would have been unable to use physical force on the applicant , as his left arm had been seriously disabled since birth and was QUANTITY shorter than his right arm . X alleged that he had practically no use of his disabled arm . Moreover , he asserted that he and his family had been helping the applicant and her sister to integrate into their new community and learn LANGUAGE , while their mother had been busying herself with her private activities . According to X , the charges of sexual assault were prompted by the applicant ’s mother , who wished to extort money from him .

On DATE the court held a second hearing in the case . X was questioned by the ORG prosecutor , mostly about the use of his left arm , and in this connection conceded that , although he usually drove automatic cars , he did occasionally drive a smaller manual transmission car . However , when asked whether he had ever driven a truck , PERSON replied that this had no bearing on the case , acknowledging nevertheless that he had a licence to drive all categories of road vehicles . Then the applicant was summoned to testify , the court granting her request for X to be absent from the hearing room . While recounting the instances of sexual abuse by X , the applicant cried repeatedly and the hearing was adjourned for TIME on that account . X ’s counsel PERSON then questioned the applicant , asking her how tall she had been and how much she had weighed at the material time . The applicant became very agitated and asked PERSON why , having been the first to hear her story , he was asking those questions and was now acting as PERSON ’s counsel . PERSON commented that this was part of the tactics . The hearing was then adjourned owing to the applicant ’s distress .

On DATE the court held a third hearing . The questioning of the applicant continued in the absence of X. When asked how she felt about the situation with hindsight , she cried and said that no one had helped her and that the proceedings had been dragging on for DATE , during which she had had to keep reliving the trauma .

On DATE the applicant lodged a supervisory appeal under ORG to a Hearing without LAW of DATE ( hereinafter “ the CARDINAL Act ” ) with a view to accelerating the proceedings .

On DATE the court held a fourth hearing , from which the public was excluded , at which NORP personally asked the applicant over a CARDINAL questions , starting with a comment in the form of a question “ Is it true that you have told and showed me that you could cry on cue and then everybody would believe you ? ” It does not appear from the record of the hearing that the applicant made any reply . X then asked the applicant a series of questions aimed at proving that they had seen each other mainly at gatherings of their families or when the applicant , in need of transport or other assistance , had actively sought his company . Among the questions asked by X were the following : “ Is it true that I could not have abused you on the evening of the event as you stated on DATE ? ” , “ Is it true that if I had wished to satisfy my sexual needs , I would have called you at least once ? ” ; “ Why did you call me in DATE and ask me to take you out of town if I had already raped you CARDINAL times before that date ? ” , “ Why were you calling me , because I certainly never called you ? ” , or “ Is it true that you specifically asked that we drive out of town alone , because you wished to talk to me and to celebrate your success at a beauty pageant ? ” The applicant insisted that she had not called X , nor had she initiated any outings with him , but that he had called her . X also asked the applicant whether she had told him that , once she had a boyfriend , she would always be on top , as she wanted to be the mistress .

NORP Moreover , X claimed that the charges of rape were fabrications by the applicant ’s mother . Hence , he asked the applicant numerous questions about her mother , including about her knowledge of LANGUAGE , her work , and her personal relationships . Further , X confronted the applicant with the medical report which indicated that his left arm was seriously disabled . The applicant insisted that she had seen X using his left arm in his daily life , including driving cars , lifting and carrying his children and their school bags , and carrying boxes and bottles . Throughout the questioning , X disputed the accuracy and credibility of the applicant ’s answers , extensively commenting on the circumstances described by her and rejecting her version of events . He continued to do so even after the presiding judge explained to him that he would have the opportunity to make his comments after the applicant ’s questioning .

During the cross - examination , PERSON repeated a number of questions and was eventually warned against doing this by the presiding judge . Moreover , the presiding judge ruled out of order CARDINAL questions that she perceived had no bearing on the case in issue .

On CARDINAL occasions , when the applicant became agitated and started crying , the court ordered a short recess . After CARDINAL of these recesses X asked the applicant whether she would feel better if they all went to dinner , just as they used to , and maybe then she would not cry so much .

At CARDINAL point the applicant requested the court to adjourn the hearing as the questions were too stressful for her . However , after being told by X that the next hearing could not be held until after DATE when he would be back from a business trip , the applicant said , while crying , that he should continue with his questioning as she wanted to get it over with . Eventually , after TIME of cross - examination of the applicant , the presiding judge adjourned the hearing until DATE .

X ’s wife , mother - in - law and an employee of his company were examined at the next hearing , all CARDINAL of them asserting that X had very little use of his left arm and certainly could not lift any burdens .

On DATE a sixth hearing was held . The questioning of the applicant by PERSON took TIME . When questioned by PERSON ’s counsel PERSON , the applicant again asserted that she had told him the whole story a long time ago . PERSON denied this , stating that if he had been informed he would have advised the applicant to go to hospital and to the police . Once the applicant ’s questioning was over , her mother was questioned , mostly about her private relationships .

At the end of the hearing ORG ’s counsel PERSON confirmed that he had encountered the applicant ’s mother when he was working at a law firm with a lawyer who had represented her in certain court proceedings . He also stated that he would inform the court within DATE as to whether he would request leave to withdraw from representing X in the proceedings in issue . On DATE PERSON requested leave from the court to withdraw from the case , as he had been personally affected by certain statements made by the applicant ’s mother .

At a hearing of DATE the court dismissed the request by PERSON ’s counsel PERSON , finding that there were no statutory grounds disqualifying him from representing PERSON The gynaecologist , PERSON , was examined as a witness . He acknowledged that in order to clarify the circumstances he had also addressed certain issues in his report that had not been part of the investigating judge ’s request . Moreover , he reiterated that the applicant ’s hymen had been intact at the material time .

On DATE the court held an eighth hearing in the case and examined the expert in clinical psychology , NORP , who again stated that sexual abuse which had happened long ago could not be proved by any material evidence , and that only the psychological consequences could be assessed . She further reiterated that the applicant displayed clear symptoms of sexual abuse .

On DATE the court appointed PERSON , another expert in gynaecology , to give an opinion on whether the applicant could have had sexual intercourse at the material time , given the results of her medical examination ( see paragraph CARDINAL above ) . On DATE the expert submitted his report , which stated that those results were not inconsistent with the applicant ’s account of the events in issue .

On DATE the court held a hearing at which it appointed ORG , an expert in orthopaedics , to prepare an opinion as to whether , in view of his disabled left arm , X could have performed the acts described by the applicant .

On DATE N. submitted his report , in which he found that X ’s left arm was severely disabled , and that for those reasons some of the events could not have happened in the way described by the applicant .

On DATE the court held a hearing at which ORG was questioned . Further to questions put by the applicant ’s counsel , ORG explained that he had based his opinion on the documents in X ’s medical file , the X - rays brought to him by X , and an examination of X.

A hearing was held on DATE . The applicant requested that ORG be questioned further .

DATE . On DATE the court held the twelfth and last hearing in the case . At the hearing the applicant and ORG questioned ORG , who stated , inter alia , that X could only use his left arm to assist the right arm in carrying out specific tasks , and that he had practically no strength in his left arm . In the expert ’s opinion , X would not have been able to spread the applicant ’s legs with his left arm , and neither would he have been able to take off his trousers as alleged by her . After being asked by the prosecutor whether his assessment was based on the assumption that the applicant had used all her strength to resist X , ORG stated : “ I did not base my conclusion on that assumption , as I did not know whether she had resisted or whether she had willingly submitted . ” After being asked whether the applicant , who was DATE at the time , could have resisted PERSON , who had allegedly been lying on top of her , he said he believed so . PERSON also testified that although X had more than ordinary strength in his right arm , he could not have assaulted the applicant in the way she alleged .

After the examination of ORG , the applicant , who had sought and obtained an opinion from another orthopaedist outside the court proceedings which indicated that X might still have limited use of his left arm , asked for another orthopaedics expert to be appointed , on the grounds that there was doubt about N. ’s conclusions . This request was rejected by the court as unnecessary , as was the applicant ’s request for the court also to call as witnesses her sister and her mother ’s former husband , who had allegedly seen X rowing with both arms . A request by the prosecutor for the applicant to be examined again was also rejected .

At the end of the hearing the court pronounced judgment , acquitting X of all charges . In view of this verdict , the court recommended that the applicant pursue her claim for damages , which she had submitted in the course of the proceedings , before the civil court .

On DATE the applicant lodged a new supervisory appeal under LAW . On DATE she received a reply from the court informing her that the reasoning of the judgment had been sent to her that day .

In the written grounds the court explained that the expert orthopaedics report contested ORG ’s ability to carry out certain acts described by the applicant , for which he would have had to use both arms . As explained by the expert , PERSON was not capable of even moving his left hand in a position which would have allowed him to take his trousers off or spread the applicant ’s legs . According to the court , the fact that some of the applicant ’s allegations were disproved by the expert raised some doubts as to her entire version of the events . On the basis of the principle that any reasonable doubt should benefit the accused ( in dubio pro reo ) , the court had acquitted X. As regards the report by the expert in psychology PERSON , which found that the applicant had suffered sexual abuse , the court noted that it could not ignore the judgment delivered in another set of proceedings concerning the applicant ’s mother ’s estranged husband , in which the competent court had accepted that he had engaged in sexual activity in front of the applicant and her sister and had also behaved inappropriately towards the applicant .

On DATE ORG lodged an appeal , in which she criticised the court for not considering the fact that owing to his age , gender and body mass NORP was much stronger than the applicant , and was also in a position of power on account of his economic and social status . Moreover , she pointed out that X had operated manual transmission vehicles , which required him to use both his arms . The prosecutor further argued that the criminal offence in question did not require the sexual act to have been committed by force ; it was sufficient that the applicant opposed it . She also stressed that the proceedings had already been pending for DATE , which had aggravated the trauma suffered by the applicant .

The appeal was dismissed by ORG on DATE , which found that the reasoning of the first - instance court ’s judgment was clear and precise regarding the doubt that X had committed the alleged criminal acts .

The applicant subsequently asked ORG to lodge a request for the protection of legality ( an extraordinary remedy ) . On DATE ORG informed the applicant that the aforementioned request could only concern points of law and not the facts , which the applicant had called into question .

On DATE the applicant and the Government reached an out - of - court settlement under LAW in the amount of MONEY ( ORG ) , covering all pecuniary and non - pecuniary damage incurred by the applicant as a result of a violation of her right to a trial without undue delay in the criminal proceedings in issue . The applicant also received ORG CARDINAL in respect of the costs incurred in the proceedings .


No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

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

A list of the applicants is set out in the appendix .

On DATE the applicants , political activists , participated in a demonstration organised by the political party “ Politics Can Be Different’ ” ( PERSON a ORG ) . The demonstrators blocked the entrance of a car park adjacent to the ORG building by chaining themselves to each other and to concrete columns situated next to the entrance .

Following the incident the GPE main police department opened criminal investigations against CARDINAL persons , including the applicants , on charges of violation of personal liberty under LAW no . IV on the [ old ] LAW .

On DATE Parliament enacted Act no . XII of DATE ( “ the LAW ” ) ( see paragraph CARDINAL below ) , which entered into force on DATE .

On DATE the GPE main police department discontinued the criminal investigation against the QUANTITY suspects , pursuant to LAW grounds that they had been granted amnesty . The applicants did not appeal against that decision .

On DATE of the applicants , PERSON , PERSON , Ms PERSON , PERSON , PERSON and Mr PERSON , lodged a constitutional complaint requesting ORG to declare sections CARDINAL , CARDINAL and CARDINAL of LAW unconstitutional as infringing the right to their reputation and the principle of presumption of innocence .

The Constitutional Court declared the complaint inadmissible . It reasoned that the complaint did not raise any constitutional - law issues of “ fundamental importance ” , since it was based on an erroneous interpretation of the law . ORG pointed out that the language employed by LAW could not be interpreted as establishing that the applicants had indeed committed the offence . In any event , the complaint was time - barred since it had been lodged outside the statutory CARDINAL days’ time - limit following the entry into force of the legislation .