Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

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

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 historical background to the case relating to the NORP occupation and annexation of GPE from DATE is summarised in NORP v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , § § DATE ) . The historical background relating to the circumstances of the re - establishment of the NORP independence is summarised in LOC and Others v. GPE ( nos . GPE and QUANTITY others , § § DATE , DATE ) .

On DATE ORG ) elected in the first free parliamentary elections in GPE under NORP rule adopted LAW on the Re - establishment of ORG . That Act declared GPE to be an independent and sovereign ORG and declared that GPE ’s incorporation into GPE had been null and void . On DATE ORG adopted LAW ( a provisional constitution ) which set out the constitutional principles of the newly re - established ORG of GPE and permitted any earlier laws and other legal instruments to remain in force provided that they were not incompatible with LAW .

On DATE ORG . I-CARDINAL “ On the status of enterprises , institutions and organisations of the Union , or of the Union and its republics , located on the territory of GPE ” ( PERSON teritorijoje esančių sąjunginio ir sąjunginio - respublikinio pavaldumo įmonių , įstaigų ir organizacijų statuso ) which declared that all such enterprises , institutions and organisations henceforth came within the jurisdiction of GPE , and that issues relating to their takeover would be decided through negotiation with GPE ( see paragraph CARDINAL below ) .

On DATE the Government of Lithuania adopted Regulation No . CARDINAL “ On the banks of GPE ” which was designed to implement aforementioned Regulation No . I-CARDINAL with respect to territorial branches of NORP banks operating in GPE ( see paragraph CARDINAL above ) . Amongst other things , it provided that the NORP branch of ORG of the GPE ( also known as “ ORG ” , ORG ekonominių ryšių su užsieniu bankas ) was to be restructured and transformed into ORG ( NORP ekonominių ryšių su užsieniu bankas ) . The Regulation established a special commission for taking over the relevant assets , liabilities , funds and reserves from the NORP banks concerned , and ordered it to promptly begin negotiations with those banks concerning the takeover ( see paragraph CARDINAL below ) .

On DATE ORG of the former GPE issued LAW . CARDINAL “ On the termination of operations and subsequent liquidation of the branches of ORG of the GPE located on the territories of the former GPE of the GPE ” , which liquidated its branches in “ sovereign States – the former GPE of the GPE ” and included GPE . It ordered the heads of the territorial branches to terminate banking operations . The NORP branch of the bank terminated its activities on DATE .

On DATE the Government of Lithuania adopted Regulation No . CARDINAL “ On the protection of currency deposits ” ( amended on DATE ) which required the NORP branch of ORG of the former GPE , which was then being liquidated , to transfer , by DATE , to ORG ( the central bank ) the remainder of the funds which had been deposited with it by NORP residents . Regulation No . CARDINAL also provided that deposits transferred to ORG would be guaranteed by the budget funds of GPE ( see paragraph CARDINAL below ) .

On DATE the LAW of GPE was adopted in a referendum . It entered into force on DATE .

NORP In DATE ORG and ORG informed the Government that ORG had not been registered as an independent bank in GPE ( see paragraph CARDINAL below ) and that it had not taken over the debts and obligations of ORG of the former GPE . They expressed the view that the question of the return of foreign currency deposits to NORP nationals should be decided via negotiations between the NORP and NORP governments .

On DATE the currency of GPE ( LTL ) – entered into circulation ( it was replaced by the euro ( ORG ) on DATE ) . From DATE until DATE the ORG was pegged to the GPE dollar ( ORG ) at the exchange rate of CARDINAL LTL to CARDINAL ORG .

On DATE the ORG and its LAW CARDINAL entered into force in respect of GPE .

On DATE ORG of the former GPE sent a letter to its NORP branch stating that on DATE ( that is , DATE before the latter terminated its operations NORP see paragraph CARDINAL above ) , the NORP branch had had at its disposal MONEY , and that the debt owed by ORG of the former GPE to its NORP branch for the funds which had been deposited therein amounted to MONEY . On DATE the representatives of the NORP bank and its NORP branch signed a joint liquidation balance declaration .

DATE the NORP authorities adopted several legal instruments providing for partial compensation to citizens who had deposited funds with the NORP branch of ORG of the former GPE and had been unable to recover them ( see paragraphs CARDINAL below ) .

As submitted by the respondent Government , the bilateral NORP working group on the return of the funds deposited with the NORP branch of ORG of the former GPE held its first meeting in DATE . In DATE , during its third meeting , the working group adopted a draft procedure for the return of those deposits . In DATE , during the eighth meeting of the working group , it was agreed that the technical and financial questions relating to the implementation of the draft procedure needed to be resolved more speedily ; however , no further meetings have been held since then . According to the respondent Government , ORG has failed to take any concrete action , and some of the positions which it expressed in the negotiations were not acceptable to GPE ( see paragraph CARDINAL below ) .

In DATE the applicant received an inheritance of MONEY from the GPE . On DATE she submitted a written request to ORG to open a bank account in MONEY . Following her request , an account was opened and a record of the inheritance was made in that account .

The Government submitted that the applicant ’s inheritance had been actually transferred to ORG of the GPE and not to the NORP bank ( see their observations in paragraph CARDINAL below ; see the applicant ’s observations in reply in paragraph CARDINAL below ) .

In DATE the applicant went to ORG and asked to withdraw the entire amount from her account . She was informed by the bank ’s management that it did not have sufficient funds to satisfy all requests for cash withdrawal , so any such requests could be satisfied only in part . The applicant was given USD CARDINAL,CARDINAL .

NORP In DATE the applicant received compensation of CARDINAL in line with the ORG ’s regulation on this matter . In DATE she received additional compensation of USD CARDINAL , and in DATE additional compensation of LTL CARDINAL ( see paragraphs CARDINAL above and CARDINAL below ) . The total compensation received by the applicant pursuant to the regulations in question amounted to LTL CARDINAL , or CARDINAL when converted at the currency exchange rate applicable at that time ( see paragraph CARDINAL above ) .

The applicant subsequently sent written requests to various ORG institutions and officials enquiring about the possibility of recovering the remainder of her currency deposit . On DATE ORG informed her that the NORP and NORP authorities had agreed on a procedure for returning foreign currency deposits which had been deposited with the since - liquidated ORG of the former GPE ( see paragraph CARDINAL above ) and that ORG would adopt appropriate decisions concerning the return of expropriated deposits to its citizens once GPE – the successor to the GPE returned them . The letter also noted that the applicant had already received compensation in line with the Government ’s regulations of DATE , DATE and DATE ( see paragraph CARDINAL above ) . On DATE ORG informed the applicant that the negotiations with the NORP authorities were ongoing , and that it had addressed the question of returning ORG deposits to ORG of GPE “ many times ” , but had not received any official response . The applicant sent further letters to the authorities , but received essentially the same response on DATE and DATE .

NORP In DATE the applicant sent a letter to the NORP bank “ ORG ” ( formerly known as ORG of the GPE ) asking about her deposit , but on DATE the bank replied that the applicant ’s account had been “ nationalised by the NORP authorities ” and that she should address her requests to them .

On DATE the applicant brought a civil claim against the NORP State demanding the return of her deposit , together with the interest payable since DATE ‒ which the applicant estimated at PERCENT per annum for different periods ‒ and compensation for nonpecuniary damage . Her claim amounted to LTL CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) in total .

In its response to the applicant ’s claim , ORG submitted that the applicant ’s deposit had been taken over not by the NORP authorities but by the GPE because ORG had never been de facto established as an independent bank and it had not taken over any assets or liabilities of ORG of the GPE . ORG also submitted that the negotiations with the NORP authorities concerning the return of all such expropriated deposits were still ongoing .

On DATE ORG dismissed the applicant ’s claim . It found that the NORP branch of ORG of the GPE had never been de facto restructured as an independent NORP bank because the NORP bank had never transferred its assets , liabilities , funds and reserves to the NORP authorities ; furthermore , ORG had never been registered as an independent bank with ORG , as required by domestic law ( see paragraph CARDINAL below ) . Accordingly , the court held that in DATE the applicant ’s inheritance had been transferred to the NORP bank and not to a NORP bank . Relying on the submissions of ORG , the court also held that during its liquidation the NORP bank had not complied with ORG requirement to transfer all the deposits of NORP nationals to ORG , and deposits which had not been transferred were not guaranteed by the NORP budget funds ( see paragraph CARDINAL above ) . The court therefore concluded that ORG was not under an obligation to repay to the applicant the full amount of her deposit , nor the interest or the compensation for non - pecuniary damage . The court also observed that the Government had already fulfilled its obligation to partly compensate the applicant for her lost deposit ( see paragraph CARDINAL above ) .

The applicant appealed against that judgment , arguing that ORG had erred in finding that ORG had not been established as an independent bank and that her deposit had not been taken over by the NORP authorities . She submitted that legal instruments adopted by the NORP authorities had unequivocally established that ORG came within the jurisdiction of GPE ( see paragraphs CARDINAL , DATE and CARDINAL above ) , and GPE was therefore under an obligation to return the applicant ’s deposit .

On DATE ORG dismissed the applicant ’s appeal and upheld the first - instance judgment . The court reiterated that , despite various legal instruments providing for the restructuring of ORG of the GPE as a NORP bank , no such NORP bank had actually been established . The court also observed that until DATE the NORP bank had continued to provide cash withdrawals to its depositors ( see paragraph CARDINAL above ) ‒ including the applicant ( see paragraph CARDINAL above ) . The NORP bank subsequently acknowledged that it was indebted to individuals who had deposited their funds with its NORP branch ( see paragraph CARDINAL above ) , and the questions relating to those debts were being addressed in the ongoing negotiations between the NORP and NORP authorities ( see paragraph CARDINAL above ) . The court therefore dismissed the applicant ’s claim that ORG was under an obligation to pay to her the full amount of her deposit , together with interest and compensation for nonpecuniary damage .

The applicant submitted an appeal on points of law , but on DATE ORG dismissed it and upheld the findings of the lower courts in their entirety . It reiterated that , having established that the NORP authorities had not de facto taken over the assets of the NORP bank , no obligation to return to the applicant deposit kept in the latter bank could arise . ORG also observed that the fact that the negotiations between the NORP and NORP authorities had not yet produced a positive result could not constitute grounds for obliging ORG to pay to the applicant the amount she claimed .

The applicant initially submitted her claim of DATE ( see paragraph CARDINAL above ) to ORG . In line with domestic law , such a claim was not subject to any court fees ( see paragraph CARDINAL below ) . On DATE a panel of judges specialising in the determination of jurisdictional disputes ruled that the applicant ’s case related to a pecuniary claim and should therefore have been brought before a court of general jurisdiction and not before an administrative court ( see paragraph CARDINAL below ) . The applicant ’s claim was therefore transferred to ORG .

On DATE ORG ordered the applicant to pay court fees which , in line with domestic law ( see paragraph CARDINAL below ) , amounted to LTL CARDINAL ( approximately ORG CARDINAL ) .

The applicant asked the court to exempt her from the obligation to pay court fees . She submitted that she had lodged her claim before an administrative court and that the claim had been transferred to a court of general jurisdiction against her will . She also argued that applying different rules concerning court fees in administrative and civil court proceedings was unfair and discriminatory . However , ORG refused to examine the applicant ’s request on the grounds of failure to comply with the formal requirements .

The applicant was subsequently granted ORG - guaranteed legal aid , whereby PERCENT of her legal expenses were covered by the ORG . As a result , on DATE ORG reduced the court fees payable by the applicant by PERCENT and ordered her to pay LTL MONEY ( approximately ORG CARDINAL,CARDINAL ) . The applicant appealed against that decision , asking to be completely exempted from paying court fees . She raised the same arguments as in her previous request ( see paragraph CARDINAL above ) and also submitted that the fees were excessively high and restricted her right of access to court , but she did not make any reference to , or provide any details about her financial situation . ORG dismissed her appeal , and the applicant subsequently paid the amount demanded .

After ORG had dismissed the applicant ’s civil claim , the latter lodged an appeal ( see paragraphs CARDINAL above ) . In line with domestic law , the court fees for the submission of an appeal were calculated in the same way as those for the initial claim ( see paragraph CARDINAL below ) . The applicant was therefore ordered to pay LTL MONEY ( approximately ORG CARDINAL ) .

The applicant paid CARDINAL of the court fees and asked the court to allow her to defer payment of the remaining half until after examination of her appeal , as provided in LAW ( hereinafter “ the ORG ” ; see paragraph CARDINAL below ) . She submitted that she was retired , that her retirement allowance was her only income , and that the total cost of the court fees was nearly equal to her DATE income . On DATE ORG allowed the applicant ’s request and postponed the payment of CARDINAL of the court fees until after the examination of the appeal . After ORG had adopted its judgment in the civil proceedings ( see paragraph CARDINAL above ) , the applicant paid CARDINAL of the court fees .

When the applicant submitted an appeal on points of law to ORG ( see paragraph CARDINAL above ) , she asked to be exempted from the obligation to pay court fees , or to defer payment until after the examination of her appeal on points of law . The applicant argued that court fees constituted an unjustified and discriminatory restriction on her right to access to court . She also submitted that her income was insufficient to afford the court fees demanded of her in the present proceedings . On CARDINAL DATE ORG postponed the payment of the court fees . After dismissing the applicant ’s appeal on points of law ( see paragraph CARDINAL above ) , ORG noted that the domestic law did not enable it to completely exempt the applicant from paying court fees ( see paragraph CARDINAL below ) . However , because of her difficult financial situation , ORG decided to reduce the amount demanded and ordered the applicant to pay LTL CARDINAL ( EUR CARDINAL ) . The applicant paid that amount .

DATE of LAW , adopted on DATE and in force until DATE , provided , in its relevant parts :

“ GPE guarantees to all holders of property rights the opportunity to independently manage and use their possessions in line with the NORP laws ...

All holders of property rights are entitled to equal legal remedies .

GPE shall protect the rights of property holders in other states . ”

DATE Republic of Lithuania , in force since DATE , provides :

“ Property shall be inviolable .

The rights of ownership shall be protected by law .

Property may be taken only for the needs of society according to the procedure established by law and shall be justly compensated for . ”

Article CARDINAL of the Law on ORG , entitled “ Establishing credit institutions ” , in force from CARDINAL DATE ( i.e. before the restoration of the independence of GPE ) until DATE , provided , in relevant parts :

“ Any credit institution in the Republic [ of GPE ] can be established only with the permission of ORG ...

All established credit institutions shall be registered in the registration book of ORG . On DATE of the registration , the credit institution becomes a legal entity and acquires the right to conduct banking operations . ”

Regulation No . I-CARDINAL of ORG On the status of the enterprises , institutions and organisations of the Union , or of the Union and its GPE , located on the territory of GPE ” ( PERSON teritorijoje esančių sąjunginio ir sąjunginio - respublikinio pavaldumo įmonių , įstaigų ir organizacijų statuso ) provides , in relevant parts :

“ ORG hereby decides :

To establish that all ORG enterprises , institutions and organisations of the Union , or of the ORG and its GPE , located on the territory of GPE on DATE of the adoption of the present Regulation , henceforth come within the jurisdiction of GPE ( pereina PERSON jurisdikcijai ) ;

To resolve the issues related to the takeover of the entities indicated in paragraph CARDINAL by negotiations with the GPE . ”

Regulation No . CARDINAL of ORG On the banks of GPE ” provides , in relevant parts :

“ Implementing the Regulation No . I-CARDINAL of ORG hereby decides :

To restructure the following NORP republican banks ( NORP respublikiniai bankai ) together with their institutions and organisations , leaving the latter subordinate to the restructured banks :

e ) ORG of the GPE – into ORG ;

NORP In order to take over the assets , liabilities ... other material resources ... of the banks listed in paragraph CARDINAL from the GPE , to create the following commission ... The commission must promptly begin negotiations with the boards of the NORP banks concerning the takeover of the assets , liabilities , funds and reserves indicated in this paragraph .

Regulation No . CARDINAL of the Government of GPE of DATE “ On the protection of currency deposits ” ( amended on DATE ) provides , in relevant parts :

“ Having regard to the fact that , at the order of ORG of the former GPE , the NORP branch of that bank ( ORG ) is being liquidated , the Government of GPE hereby decides :

By DATE , ORG shall transfer to ORG the remaining part of the currency deposits of natural persons ( fizinių asmenų indėlių likučiai ) and open bank accounts for them .

NORP The currency deposits of natural persons transferred from ORG to ORG shall be guaranteed by currency funds ( the budget funds ) of GPE . ...

The Bank of GPE shall immediately begin negotiations with ORG of the former GPE – the successor – concerning the return of the expropriated funds ( nusavintos valiutinės lėšos ) of NORP natural persons and legal entities which had been deposited with the NORP branch of the latter bank ( in ORG ) . ”

On DATE the Parliamentary PERSON issued Conclusion No . CARDINAL - CARDINAL concerning a complaint by N.J.G. that she had not been able to recover her funds which had been deposited with a NORP bank . It stated :

The restructuring of the NORP branch of ORG of the former GPE was not conducted in accordance with the procedure provided in [ domestic ] legislation . During its liquidation , ORG did not transfer any deposits to ORG , and for that reason ORG was unable to take any related actions . ORG refused to become the successor of the debts and obligations of [ ORG ] .

The Parliamentary PERSON was informed [ by ORG ] that the question of returning funds which had been deposited with the [ NORP branch of ORG of the former GPE ] was being constantly raised in meetings between NORP and NORP officials .

During the meeting of ORG and GPE which took place on DATE , the NORP delegation proposed that the draft procedure , agreed upon in DATE , would be implemented from DATE , but the NORP delegation was of the view that the question of returning the funds deposited with [ the NORP bank ] to natural persons could be resolved only after the NORP and NORP governments settled the issue of external debts and assets of the former GPE . The Parliamentary PERSON was told that the NORP delegation considered that the debt of [ the bank ] was a credit institution ’s debt to its creditors , and therefore debts of natural persons should not be linked to the question of the external debt and assets of the former GPE .

The applicant ’s complaints ... that the officials of ORG failed to adequately address the questions concerning the return of currency deposits have proved to be unfounded – the officials dealt with the applicant ’s problems within the limits of their authority and in accordance with applicable legislation . ”

On DATE the Government of Lithuania adopted Regulation No . CARDINAL “ On partial compensation for the losses to the citizens and permanent legitimate residents of GPE who had deposited their foreign currency deposits with the liquidated NORP branch of ORG of the GPE ” , which established that each depositor was entitled to partial compensation of up to USD CARDINAL , but not exceeding PERCENT of the total amount of the deposit , from the ORG ’s budget . On DATE ORG . CARDINAL which provided for additional compensation of up to USD CARDINAL for each depositor , and on DATE it adopted Regulation No . CARDINAL which provided for further compensation of up to LTL CARDINAL for each depositor .

On DATE ORG enacted the PERSON on the Restoration of Residents’ Deposits , which set out the order of priority and conditions for refunding deposits which had been kept in “ ORG banks of GPE ” ( indėliai , sukaupti NORP valstybiniuose bankuose ) . On DATE that PERSON was amended to also provide for compensation for deposits which had been deposited with the NORP branch of ORG of the former GPE . According to its LAW , the maximum refundable amount was set at LTL CARDINAL,CARDINAL , after deducting the compensation already paid in accordance with other legal instruments ( see paragraph DATE above ) .

On DATE ORG enacted the PERSON on Repealing the Law on the Restoration of Residents’ Deposits and its LAW ( see paragraph CARDINAL above ) , LAW CARDINAL of which provides that funds which had been deposited with the NORP branch of ORG of the former GPE would be returned to the depositors once they had been recovered from GPE .

Article CARDINAL § CARDINAL of the ORG and LAW of ORG provide that when it is not clear whether a case should be examined by an administrative court or by a court of general jurisdiction , the question of jurisdiction is to be decided in written proceedings by a special panel of judges composed of the chairperson of ORG , the deputy chairperson of ORG , and CARDINAL other judges appointed by them .

Article CARDINAL § CARDINAL ( CARDINAL ) of ORG provides that claims concerning damage caused by unlawful actions on the part of public administration entities are not subject to any court fees .

At the material time , LAW ( CARDINAL ) of the ORG provided that court fees for monetary claims exceeding LTL CARDINAL amounted to LTL CARDINAL , plus PERCENT of that part of the respective claim in excess of LTL CARDINAL . Article CARDINAL § CARDINAL provided that court fees for the submission of an appeal , including an appeal on points of law , were calculated in the same way as those for the initial claim .

Article CARDINAL § CARDINAL of the ORG provides that a person may be partly exempt from paying court fees because of his or her financial situation , and LAW provides that the payment of court fees may be deferred for the same reason . A person wishing to obtain such an exemption or deferment must submit a properly reasoned request to the court examining the case .

Article CARDINAL CARDINAL of the LAW on State - Guaranteed Legal Aid provides that the granting of legal aid does not preclude its recipient from requesting other exemptions provided for in laws governing civil and administrative proceedings .


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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE . He is a former lawyer who was admitted to the bar in DATE .

On DATE the applicant renounced his right to practise as a lawyer because he had , as a result of his gambling addiction , committed criminal offences . On DATE the applicant was convicted of aggravated fraud and embezzlement and sentenced to CARDINAL half years’ imprisonment .


Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

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

On DATE the applicant was elected a judge of ORG ( “ the LAW ” ) .

NORP Before becoming a judge the applicant was the vice - president of ORG ( PERSON nezavisnih socijaldemokrata ; “ SNSD ” ) , a political party established in DATE and based in PERSON , and a member of ORG .

On DATE a local non - governmental organisation , PERSON of ORG ( Forum PERSON Srpske ) , informed ORG of a letter ( and sent CARDINAL pages thereof ) which had been written by the applicant and sent to Mr GPE , the president of the SNSD and the then prime minister of PERSON . The letter was not dated , but according to its contents and the applicant ’s own later admission it had been written and sent in DATE .

In the letter the applicant discussed the work of ORG and made comments concerning the work of CARDINAL employee of ORG . The relevant part of the letter reads ( the translation has been provided by ORG ) :

“ I am not certain when it comes to the strategic ( political ) decisions that the international judges can not be influenced by the ORG [ Office of the High Representative for GPE ] , but the individual judges are in no position to carry out any kind of lobbying as concerns the international judges , while in the cases such as LOC , the FAC or NORP are not to be lobbied either , as they only have the Federation interest on their mind ...

In any event , I am always at your disposal but in the hassle and bustle that surrounds you I am afraid that you do not use my experience and opportunities sufficiently enough . My attitude is not to impose as I am aware of the problems you are in ...

[ ... ] high average , passed the bar exam , computer proficient , possesses knowledge of LANGUAGE and is a member of ORG .

However , in the systematization of the work duties , it should be foreseen that she retains her present duties ( ... lawsuits , has significant experience , has raised that position to high level in the Government , when she has any major problem she consults me ) and also receives new assignments along with the present duties . ”

The contents of the letter were subsequently published in different media .

On DATE ORG asked the applicant to submit his comments concerning the impugned letter .

On DATE an interview with the applicant was published in ORG GPE , the local DATE magazine , in which he said , inter alia :

“ I will share , when the time comes , with the readers of ORG whatever I have learned during my term which could seriously compromise the work of ORG , its judges and also certain high - level politicians . ”

Another interview with the applicant was published in the same magazine on DATE , the relevant part of which reads as follows :

“ I shall explain who works in ORG and how , and to what extent the crime has settled within the highest judicial instance of the state . And I have evidence for everything .

I am tired of keeping quiet about someone else ’s criminal activities , tired of talking about how ORG operates , which always ends up with corruption , tired of interference of the crime and politics with our work .

There is no state in the world like GPE . We have no other institution , except the CARDINAL in which I work , to protect the law and justice . Unfortunately , it has failed to do so . ”

On DATE , without the knowledge and approval of ORG , the applicant held a press conference in PERSON at which he made comments concerning the impugned letter . He also discussed certain cases and remarked on the impartiality of ORG .

NORP On DATE ORG held an extraordinary plenary session at which it discussed its position concerning the applicant ’s conduct and decided to prepare a proposal for his removal from office .

At ORG session of CARDINAL DATE the applicant confirmed that he was the author of the impugned letter .

On DATE at the extraordinary plenary session ORG held unanimously that the applicant had breached the LAW ( CARDINAL ) of its Rules by knowingly damaging the reputation of ORG and the reputation of a judge and decided to remove him from office . By virtue of LAW , that decision was final and binding . The relevant part of the decision reads as follows ( the translation has been provided by ORG ) :

“ CARDINAL . Based on the Conclusion of the Constitutional Court of GPE ( ‘ the Constitutional Court’ ) reached at the ORG plenary session held on CARDINAL DATE , the President of ORG , on behalf of ORG , submitted on DATE a Proposal for Dismissal of the Judge of the Constitutional Court Mr PERSON no . K - I-CARDINAL/CARDINAL on account of a violation of Rule CARDINAL DATE and CARDINAL of the Rules of ORG .

II . Procedure before ORG

On DATE the ORG received a letter from ORG from PERSON , accompanied by another letter ( pages CARDINAL , CARDINAL and DATE ) composed by Mr PERSON , judge of ORG of ORG , addressed to the president of ORG political party ( ‘ SNSD’ ) and the prime minister of PERSON , Mr. GPE .

After the contents of the referenced letter were published in the media , the President of ORG had consultations with the national judges of ORG . It was concluded that the issue of the public appearance of Judge PERSON [ was ] to be discussed at the separate plenary session in terms of Rule CARDINAL of the Rules of ORG . It was also concluded that it should be requested from Judge PERSON to submit his written statement on the ORG letter and the letter he had addressed to the president of ORG and the prime minister of PERSON .

Based on the previous conclusion , on DATE , ORG requested Judge PERSON to submit his written statement concerning the Parents’ Forum letter and the controversial letter addressed to the president of the SNSD and the prime minister of PERSON .

On DATE , Judge PERSON submitted his written statement .

On DATE ORG held an extraordinary plenary session and preliminary deliberation about the following item of the Agenda : ‘ The Information and Taking a Position on the Public Appearances of Mr PERSON , Judge of ORG and GPE . ORG concluded that before it resumed its extraordinary plenary session , all relevant evidence , materials and documentation should be obtained and , based on that , a proposal for the conceivable dismissal of Judge PERSON drafted , to enable ORG to deliberate and decide whether there are any reasons for his dismissal . In addition , ORG concluded that LAW , together with the copies of all the evidence , materials and documentation should be communicated to Judge PERSON to respond to , with an invitation to do so within DATE at the latest .

On DATE pursuant to Rule CARDINAL of the Rules ... ORG requested from the prime minister of PERSON to submit a copy of the third page of the aforementioned letter . The prime minister of ORG failed to respond to the request ...

Also , on DATE , pursuant to LAW ... , ORG requested from Alternative Television PERSON and ORG of ORG and , on DATE , from ORG of GPE and ORG GPE , to submit the complete recording of the press - conference held by Judge PERSON in PERSON on DATE .

On DATE , pursuant to Rule CARDINAL of the Rules ... , ORG requested from the DATE magazine ORG ... , to submit the complete recording of an interview with Judge PERSON , which was the subject of articles of this magazine dated DATE and DATE and , in case of unavailability of this tape recording , a written statement by the journalist on the authenticity of the quoted statements of Judge PERSON .

Within the period from DATE through DATE , Alternative Television PERSON , ORG of ORG , and ORG of GPE and GPE submitted their available materials ...

On DATE ORG received a written statement by a journalist of ORG , confirming the authenticity of the quoted statements of Judge PERSON which were published in the articles of this magazine of DATE and DATE .

PERSON was communicated to Judge PERSON on DATE . However , Judge PERSON failed to submit his written statement within the given time - limit of DATE .

On DATE ORG resumed its Extraordinary plenary session at which it deliberated about the item of the Agenda : ‘ Consideration of the Proposal for Dismissal of Mr. PERSON , Judge of ORG and GPE . ORG established that the procedure for dismissal of a judge of ORG may be defined as an ad hoc procedure of a sui generis nature , for which there are no detailed Rules on how to conduct the procedure . For that reason and by application of Rule CARDINAL of the Rules of ORG , ORG concluded that a fair hearing must be guaranteed to Judge PERSON , including all the principles stipulated under LAW ( ‘ the NORP Convention’ ) . Furthermore , the Constitutional Court afforded an opportunity to Judge PERSON to state his position in respect of all the allegations contained in the Proposal for Dismissal before all the judges of ORG during the proceedings at the session . ORG then proceeded to discuss the preliminary issues , arriving at the conclusion to adjourn the session until DATE , so that ORG could communicate , in the meantime , to Judge PERSON , upon his request , the documentation he requested , render him an opportunity to access and inspect specific documents of ORG and afford him enough time to engage a legal representative of his choice . A time - limit of DATE was set to Judge PERSON to submit his written statement in response to the Proposal for Dismissal . Also , ORG concluded that it should resume its deliberations on CARDINAL DATE even in the case that Judge PERSON [ failed ] to appoint a legal representative , submit his written statement or attend the scheduled session . Judge PERSON was notified of these conclusions orally and he agreed to them .

By letters no . K - I-CARDINAL/CARDINAL of DATE and DATE respectively , the aforementioned conclusions were also communicated to Judge PERSON in writing .

On DATE , Judge PERSON submitted his written statement in which , among other things , he informed ORG that he would not be attending the resumed extraordinary plenary session for private reasons . He also failed to appoint a legal representative or to examine the case - files of ORG .

ORG resumed its extraordinary plenary session on DATE in the absence of Judge PERSON .

In his responses of DATE and CARDINAL DATE , Judge PERSON states that the letter to the president of the SNSD and the prime minister of PERSON was sent to his friend , that it was a private letter and that he had not given his consent for that letter to be used . He , further , finds that all the media articles relating to him and the letters addressed to ORG concerning him have been deliberately orchestrated with a view of his dismissal . He claims that the interview with journalist PERSON was not authorized and that he held the press - conference on DATE because he was put under pressure . He also stated that all the statements given in public had been given within the scope of the freedom of expression .

VII . Position of ORG

During the course of its extraordinary plenary session , ORG discussed the preliminary issues , examined all available evidence , materials and documentation .... It then conducted deliberations and reached a decision on the merits by consensus that Judge PERSON had to be dismissed from the office of the Judge of the Constitutional Court pursuant to LAW in conjunction with LAW paragraph CARDINAL line CARDINAL of the Rules of the Constitutional Court due to the violation of Rule CARDINAL paragraph CARDINAL of the Rules of ORG for the following reasons :

VII.CARDINAL . Contents of the letter of Judge PERSON

In accordance with the constitutional principle of the rule of law , ORG must be an independent and impartial constitutional authority . That , in principle , primarily defines its relation to the executive authority . The independence and impartiality of ORG implies that its judges are free , that they do not have to be accountable to anyone and that they are not bound by anyone ’s instructions ( cf . the Judgment of ORG GPE , Series A , No . CARDINAL , of DATE , paragraph CARDINAL ; PERSON v. GPE , Series A , No . DATE , of DATE , paragraph CARDINAL ) . Furthermore , it is not only required that the judges of ORG are truly independent but also to appear to be so , which is subject to an objective test ( cf . the Judgment of ORG , ORG and Fell v. GPE , No . CARDINAL , of DATE , paragraph CARDINAL and ff ) .

It clearly follows from the contents of the letter that the president of the SNSD , Mr GPE , had been in contact with Judge PERSON ( first page of the letter ) even before the controversial letter was ever written . Judge PERSON responded to those contacts by written communication . Furthermore , Judge PERSON states in his letter that he is ‘ always at disposal’ of the president of PERSON , offering him openly ‘ his experience and opportunities’ ( page CARDINAL paragraph CARDINAL ) . Moreover , his letter contains an unsolicited request for a higher degree of cooperation , which clearly follows from the statement : ‘ I am afraid that you do not use my experience and opportunities sufficiently ORG . In addition , Judge PERSON openly discusses the possibility of employing someone from the PERSON personnel in the executive authorities of ORG , giving his opinion and recommendations in respect of those persons and stating that those persons are in consultations with him whenever there appears any major problem ( page CARDINAL , paragraph CARDINAL ) . According to this , Judge PERSON is in the habit of giving advice to the officials of the executive authorities of CARDINAL of the Entities .

DATE . Given the contents of the controversial letter and taking into account the fact that Judge PERSON held the office of the first vice - president of the SNSD , prior to taking the office of the judge of ORG , an objective observer gets an inevitable impression that Judge PERSON did not sever relations with his former political party and its president and that he is prepared to continue maintaining such contacts which are useful to that political party . As a matter of fact , he is even initiating them . That may be clearly concluded from the statements made in the letter , offering his expertise and experience , a higher degree of cooperation , and rendering his own opinions and advice to one of the members of his former party ‘ wherever he has a major problem’ in the Government of the Republika Srpska .

Such ties between a judge of ORG and political parties , i.e. executive authorities of CARDINAL of the ORG , may be defined as liaisons incompatible with the institutional and operative independence of ORG , which all judges must endeavour to strengthen . In the public eye , such relations are damaging to the reputation of ORG , in particular as concerns the perception of its independence and impartiality , i.e. the prohibition of preferential treatment of specific parties .

Accordingly , Judge PERSON , by such statements , has deliberately endangered and inflicted damage on the independence of ORG , thereby undermining both his reputation as a judge of ORG and the reputation of ORG itself , in terms of Rule CARDINAL paragraph CARDINAL of the Rules of ORG .

The fact that the controversial letter was not of business but of private nature does not affect this conclusion of ORG and neither does the fact that Judge PERSON and the president of PERSON and the prime minister of PERSON , PERSON , are friends as indicated by Judge PERSON . The obligation of a judge of ORG , as the holder of the judicial authority to safeguard the independence of the court as an institution and his own independence in relation to the holders of the other authority , is in effect in both private and professional relations . Therefore , even if the letter was of private nature , it may still endanger the independence of a judge of ORG and ORG itself as an institution .

VII.CARDINAL . Public appearances of Judge PERSON

Furthermore , in the interviews given to the DATE magazine ORG on DATE and DATE and at the press conference held on DATE in PERSON , Judge PERSON presented serious accusations against the judges of ORG and ORG itself as an institution , associating them with ( a ) crime ( b ) corruption ( c ) interference of politics with the work of ORG and ( d ) failure to perform the constitutional function it has been entrusted with . Moreover , Judge PERSON claimed he had evidence to substantiate his allegations .

Judge PERSON did not deny the quoted allegations , pursuant to LAW , or in any other manner . On the other hand , on DATE , ORG received a written statement by the journalist of the DATE magazine ORG , PERSON , confirming the authenticity of the quoted statements of Judge PERSON . ORG , therefore , considers the statements given in public by Judge PERSON to be accurately quoted .

Judge PERSON invoked freedom of expression as guaranteed under LAW ( CARDINAL ) ( h ) of LAW of BiH and LAW . In his opinion the freedom of expression allows him to express his opinion publicly and in the manner as he has done . Finally , he stated that pressure was applied on him as a judge , on account of which he found it necessary and justified to state his opinion in public .

ORG emphasizes that freedom of expression is extremely important for democracy and democratic processes in a society . The state must pay special attention to this particular freedom ... This Article not only protects the information and ideas perceived as positive or considered hazardless or those on which no position has been taken , but also those that offend , shock and disturb . That is what tolerance and pluralism require and without that there is no democratic society ( cf . ORG CARDINAL of CARDINAL DATE , the judgment of ORG v. GPE , No CARDINAL , of DATE , paragraph CARDINAL ) . This is particularly the case when it concerns the public personalities or institutions of authority since the threshold of tolerance must be raised to a higher level ( cf . judgment of ORG , PERSON v. GPE , Series A , No CARDINAL , of DATE , paragraph CARDINAL ) .

Nevertheless , the freedom of expression under LAW ( CARDINAL ) ( h ) of LAW and LAW is not absolute ... according to LAW , freedom of expression ‘ may be subject to such formalities , conditions , restrictions or penalties as are prescribed by law and are necessary in a NORP society , in the interests [ ... ] or for maintaining the authority and impartiality of the judiciary’ .

The Constitutional Court finds that the sanction of dismissal of a judge from office of the Judge of ORG , under LAW ( CARDINAL ) ( c ) of LAW in conjunction with LAW paragraph CARDINAL line CARDINAL of the Rules of ORG , i.e. on account of a severe violation of Rule CARDINAL paragraph CARDINAL of the Rules of ORG , may be a justified measure for non - compliance with the restrictions of the freedom of expression .

DATE . Therefore , as previously stated , every judge of ORG must be aware that by accepting his / her judicial office he / she also accepts certain restrictions in terms of public appearances . The goal of such restrictions is to protect public interest – the confidence of the public in respect of the judiciary , protection of its independence and impartiality , the integrity , reputation and honour of judges . When a judge appears in public , his / her main concern must be the protection of that public interest .

Judge PERSON appeared in public on his own initiative , through written media and by organising the press conference . Judge PERSON was aware that organising a press conference in such a manner was unprecedented as far as ORG is concerned , as he himself stated prior to the press conference . He pointed out that his appearance was contrary to the position of ORG concerning public relations . ORG , further , holds that the purpose of those public appearances was to seriously discredit and raise charges against the other judges of ORG and ORG as an institution and their disqualification . Finally , Judge PERSON publicly presented his claim that ORG did not protect the law and justice , i.e. that it did not perform its duties in a proper and professional manner . Judge PERSON publicly promised that these grave charges against ORG and its judges would be substantiated by evidence , stating : ‘ I have all the evidence’ .

ORG holds these appearances to be completely contrary to the high judicial standards of behaviour of judges . Indeed , even if those statements of Judge PERSON were founded , his conduct was completely unprofessional and inconsistent with the principles of a fair hearing . Namely , a judge , even if he or she claims to be in a possession of evidence for the alleged criminal activity of the individual judges , must not act outside the institution , present his of her position in public and prejudge a conceivable outcome ... ( presumption of innocence ) but must use relevant state system , provided for by the positive regulations of GPE and GPE which makes possible the examination of such claims in accordance with its jurisdiction , relevant procedure and substantive legal grounds . Judge PERSON , prior to presenting his positions and claims in public , did not even attempt to tackle these issues within ORG , although prior to his public appearances he knew that ORG , sitting in a plenary session , would give him the opportunity to discuss the issue of his position in ORG , where he could have presented his allegations and positions . Moreover , according to what ORG learned about this matter , Judge PERSON did not even attempt to submit any evidence to the competent prosecutor ’s offices in GPE .

DATE . Due to aforesaid , the public appearances of Judge PERSON have brought into question the confidence of the public in respect of the constitutional - judicial authority as well as ORG as an institution ... Judge PERSON thereby inflicting damage to the dignity of ORG and its judges . This is best illustrated by the introductory notes of the journalist of ORG in the article dated DATE ‘ The highest judicial institution of the state , ORG , is dangerously shaken up DATE under the burden of insinuations , corruption charges , political set - ups and party conflicts!’ .

According to the established facts , it is not possible to find any reasons which could justify Judge PERSON in his actions . ORG does not find his claim of having been under pressure to be well - founded .

On the basis of the established facts , ORG concludes that Judge PERSON had consciously overstepped the allowed restriction on freedom of expression of a judge , thereby undermining the reputation and dignity of a judge of ORG in contravention with Rule CARDINAL paragraph CARDINAL of the Rules of ORG . In that manner , Judge PERSON inflicted damage to his own reputation and dignity as a judge as well the reputation of the other judges and ORG as an institution .

VII.CARDINAL . Conclusion

ORG emphasizes first and foremost that it operates in highly complex legal and political circumstances . At this stage of the constitutional development of GPE , the role of ORG is very important and difficult while , objectively , its decisions have a significant impact on political processes within the state . ORG resolves , amongst other things , complicated constitutional issues with far - reaching implications , often involving legislative or executive authorities at the state- or entity - level as direct participants . This very fact shows that there exists an undeniable public interest for ORG to build and maintain its reputation , independence and impartiality and not to allow these principles to be endangered or violated . Otherwise , the authority of ORG as an institution and the authority of its decisions shall be lost . ORG , as the distinguished jurists of the highest moral standing , must be aware of these principles at any given moment .

... With his actions , Judge PERSON inflicted great damage on ORG , reflected in undermining of the confidence of the public and the authorities in respect of the independence , impartially and professional work of ORG as well as degrading of the achieved results .

ORG holds that it will have to bear the consequences of the aforementioned actions of Judge PERSON for a long time and that it will have to make an extra effort to regain the undermined confidence of the public and public authorities in its autonomy , independence , impartiality and professionalism .

... ORG holds that the conditions have met to take the decision on dismissal of Judge PERSON from his office , in pursuance of LAW ) of LAW

Pursuant to Article VI ... of the LAW of GPE , this decision of the Constitutional Court shall be final and binding and shall not be subject to any review before any legislative , judicial or administrative authority . ”

The decision was not served on the applicant but was published in ORG DATE .

On DATE the applicant initiated proceedings before ORG ( “ the ORG ” ) seeking to annul ORG decision of CARDINAL DATE .

On DATE ORG declared that it lacked jurisdiction to examine the case as ORG had exclusive jurisdiction in all matters concerning the status of its judges .

On DATE ORG of ORG upheld the decision of DATE .

The LAW of GPE ( Annex CARDINAL to ORG for Peace in GPE ) entered into force on DATE . ORG was set up pursuant to LAW , which , in so far as relevant , reads as follows :

“ ORG and GPE shall have QUANTITY members .

a ) CARDINAL members shall be selected by ORG , and CARDINAL members by ORG . The remaining CARDINAL members shall be selected by the President of ORG after consultation with the Presidency .

b ) Judges shall be distinguished jurists of high moral standing . Any eligible voter so qualified may serve as a judge of ORG . The judges selected by the President of ORG shall not be citizens of GPE and GPE or of any neighbouring state .

c ) The term of judges initially appointed shall be DATE , unless they resign or are removed for cause by consensus of the other judges . Judges initially appointed shall not be eligible for reappointment . Judges subsequently appointed shall serve until DATE , unless they resign or are removed for cause by consensus of the other judges .

The Constitutional Court shall uphold LAW .

a ) The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises LAW between the ORG or between GPE and an ORG , or between institutions of GPE , including but not limited to :

- Whether an ORG ’s decision to establish a special parallel relationship with a neighbouring state is consistent with this LAW , including provisions concerning the sovereignty and territorial integrity of GPE .

- Whether any provision of an ORG ’s constitution or law is consistent with LAW .

b ) The Constitutional Court shall also have appellate jurisdiction over issues under LAW arising out of a judgment of any other court in GPE .

c ) . The Constitutional Court shall have jurisdiction over issues referred by any court in GPE concerning whether a law , on whose validity its decision depends , is compatible with this LAW , with ORG and its Protocols , or with the laws of GPE and GPE ; or concerning the existence of or the scope of a general Rule of public international law pertinent to the court ’s decision .

Decisions of the Constitutional Court shall be final and binding . ”

The relevant provisions of the Rules of the Constitutional Court ( Official Gazette of GPE , ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) read as follows ( the translation has been provided by ORG ) :

Rule CARDINAL

( Attendance of the sessions )

“ The sessions of the Constitutional Court shall be attended by the judges , the Secretary General , the PERSON , the Heads of Departments and the person responsible for public relations .

The President of ORG may decide for other qualified persons to attend the session . ”

Rule CARDINAL

( Public hearing )

“ When necessary to directly deliberate on an issue relevant for taking a decision during the proceedings before ORG , the plenary Court shall hold a public hearing .

The Constitutional Court shall take a decision on the need to hold a public hearing , on a proposal of a Judge PERSON or another judge ” .

“ The judges of the Constitutional Court shall be selected in accordance with Article ORG ) of the LAW .

The judges shall be distinguished lawyers of high moral standing ... ”

Rule CARDINAL ( former Rule CARDINAL )

( Solemn declaration )

“ Before taking up office each elected judge shall , at the first sitting of ORG at which the judge is present , or in case of need before the President of ORG , take the following oath or make the following solemn declaration :

I solemnly declare that in exercising my functions as a judge of ORG , I will uphold the LAW and laws of GPE and that I will exercise my functions as a judge conscientiously and impartially . ”

“ The judges shall perform the function of a judge conscientiously .

The judges shall uphold the reputation and dignity of ORG and the reputation and dignity of a judge . ”

“ The position of a judge shall be incompatible with :

a ) a membership in a political party or a political organization in GPE ... ”

“ ( CARDINAL ) A judge may be dismissed from office before the end of his or her term in the following cases :

e ) if he or she fails to perform the function of a judge in accordance with Rule CARDINAL of these Rules .

( CARDINAL ) The Constitutional Court shall establish the existence of reasons referred to in paragraph CARDINAL of this LAW and it shall dismiss the judge from office on the basis of a consensus of other judges and inform the body which elected that judge . ”


Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and until his conviction lived in GPE , a town in GPE .

NORP In DATE the applicant was arrested on charges of murder and arson .

On DATE , as the investigation unfolded , the local official newspaper ORG printed an interview with a deputy town prosecutor about a spike in murder rates . The prosecutor said :

“ In DATE our town reported DATE a historic high , it seems . CARDINAL of them have already been solved , thanks to the industry of the police department and the investigators from the prosecutor ’s office ....

The fingerprint identification of ex - convict [ N.B. ] ( whose body was found in [ a river ] ) has allowed to discover his enemies and to prove that he was beaten by CARDINAL inhabitants of GPE seeking [ ... ] to settle scores for his murder of [ another man ] for which [ he ] had served DATE . It has been established that [ GPE ’s ] CARDINAL murderers – [ the applicant ’s codefendant ] and PERSON , both ex - convicts – were complicit in the earlyMarch murder of [ ORG ] who had dared to report them to the police for past wrongs . [ Her ] body was dumped in a wood near the airport and was found only in DATE As those crimes were not solved in time , [ the applicant ’s codefendant ] rampaged on and on DATE killed [ another woman ] who had witnessed the night - time arson at FAC that had killed CARDINAL .

By the way , both [ ORG ] and [ the other woman ] ( whose body was found in a well next to the sports centre ) had been garrotted with a wire . All CARDINAL persons arrested in this multicount case will undergo forensic psychiatric observation because of the gravity of the crimes committed , which carry up to DATE or life in prison . But even after these downright senseless murders , the crime wave in the town continued . ”

When the case came to trial before ORG , the applicant moved to disqualify the prosecutor for the prejudice apparent in that interview . On DATE the court refused the motion because the prosecutor had only cited facts from the investigative file , had affirmed the applicant ’s complicity but not his guilt , and was not personally interested in the outcome of the trial .

On DATE the court sentenced the applicant to CARDINAL years’ imprisonment for arson and the murders of GPE and GPE On DATE ORG upheld the sentence , leaving unanswered the applicant ’s complaint about the press interview .

In reply to a post - conviction complaint brought by the applicant , in DATE ORG found that the interview had breached the agency ’s ethics policy as it had preceded the trial without , however , tangibly redressing the applicant .