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

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

The applicant had relations with ORG , a female student born in DATE . On DATE PERSON gave birth to their daughter . On DATE the applicant and ORG registered their marriage .

From the time of the birth of the child the couple and their daughter lived in the applicant ’s flat in GPE . The applicant ’s parents lived in the same flat and assisted the parents in bringing up the child .

NORP In DATE the applicant and PERSON were absent from home for DATE , as they were working abroad . During their absence the applicant ’s parents took care of the child .

NORP In DATE the child was admitted to a child - minding centre in GPE .

DATE PERSON worked abroad for DATE . During that time the child was taken care of by the applicant and his parents . While working abroad , ORG transferred funds to the applicant to support the family .

Relations between the applicant and ORG grew worse and on DATE , after a quarrel with the applicant , PERSON took the child and moved from the flat without the agreement or knowledge of the applicant . The applicant was not informed of the place to where PERSON and the child moved to live .

On DATE the applicant asked the police to establish the whereabouts of the child . He and his parents also conducted their own enquiries .

As was further established in the course of the domestic proceedings , ORG moved to the village of GPE , near GPE , where she apparently cohabited with her uncle , PERSON ( born in DATE ) . The applicant ’s child was admitted to the child - minding centre located in the same village .

On DATE the applicant found the child at the Bezdryk child - minding centre . According to the applicant , the child ’s body bore bruises . He took the child back to his flat in GPE and DATE submitted her for medical examination .

On DATE a forensic medical expert examined the child and reported a red spot on the chin , measuring QUANTITY by ORG , which DATE in the expert ’s opinion – was “ a sign of an earlier abrasion ” . The expert also documented CARDINAL abrasions on the nose , measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY ; a bruise on the back , measuring QUANTITY by QUANTITY ; CARDINAL bruises on the right shin , measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY ; and a red , itchy spot in the abdominal area . The expert stated that the injuries could have been caused by blunt objects DATE before the examination .

The applicant asked the police to carry out a criminal investigation in connection with the injuries sustained by his daughter , who had allegedly explained that the injuries had been inflicted by ORG

After her return to GPE , the child continued to live with the applicant and his parents . PERSON was given access to the child only in the presence of the applicant or other persons that he trusted .

On DATE the ORG district police of GPE refused to open a criminal investigation in respect of the alleged abduction of the child , stating that the facts of the case did not indicate that the crime of child abduction had been committed . It was noted that the couple had not divorced and it had yet to be determined by the court with whom the child should reside .

On DATE the NORP district police of LOC refused to open a criminal investigation in connection with the child ’s injuries , as determined on DATE , for lack of corpus delicti . According to the police decision , the seriousness of the injuries had not been established ; however , if the injuries had been minor , the applicant was free to institute a private prosecution against the person concerned .

On DATE and DATE the applicant ’s mother requested the law - enforcement authorities to institute criminal proceedings against ORG and F. under Article CARDINAL § CARDINAL of LAW . She considered that the child could have been a victim of sexual abuse in the period during which the latter had been living together with ORG and PERSON in the village of GPE . The applicant ’s mother submitted that the child had told her personal stories which suggested that PERSON and PERSON might have engaged in sexual activities in view of the child and that PERSON had shown his genitals to the child .

On DATE , in the course of a pre - investigation inquiry , the applicant ’s daughter was interviewed in the presence of the applicant ’s mother . The child explained that during her stay with the mother in the village of Bezdryk she had regularly observed PERSON and PERSON , embracing and kissing each other and engaging in some “ backwards and forwards movements ” which she had not been able to understand ; PERSON had taught the child how to kiss in an adult fashion , uncovered his genitals in front of her and asked her to touch his genitals .

On DATE , DATE and DATE the GPE district police , having conducted the pre - investigation inquiries , refused to open criminal proceedings for lack of corpus delicti . Those decisions were quashed as unsubstantiated by the supervising prosecutors , who ordered further measures , such as establishing the whereabouts of PERSON ( who had not been interviewed ) , identifying and interviewing possible witnesses , inspecting the LOC and the yard where the alleged crime could have been committed , and undertaking medical and psychological examinations of the child .

On DATE the GPE district police once again refused to open criminal proceedings against GPE and PERSON on the grounds that there had been no corpus delicti . In their decision the police referred to the interviews with the applicant ’s child , PERSON , and other people . PERSON denied the allegations . F. could not be interviewed as he had moved abroad . In sum , the LOC district police concluded that the available material had been insufficient to suggest that any crime had been committed .

On DATE the applicant , relying on the new Code of Criminal Procedure of DATE , requested that an investigation be opened against ORG and PERSON in respect of the alleged child sexual abuse . On DATE the GPE district police opened a criminal investigation under LAW . The applicant was admitted to the proceedings as the representative of his daughter .

The investigator ordered that measures be undertaken to establish the whereabouts of F. During the investigation ORG denied the allegations and submitted that she had been a victim of domestic violence , that she had been threatened and beaten by the applicant , and that this had prompted her to run away with the child on DATE ; she also submitted that she had moved to the village of GPE , where her grandfather lived , and that she had had no sexual relations with PERSON , her uncle . When questioned , the applicant and his mother insisted on the truth of their previous statements . They underwent polygraph examinations which suggested that they had told the truth in their submissions .

On DATE the applicant ’s daughter was questioned in the presence of a psychologist and her grandmother ( the applicant ’s mother ) . The applicant ’s daughter submitted in particular that F. had taken her hand and placed it on his genitals ; that F. had taught her to kiss in an adult fashion ; and that F. and ORG had engaged in certain activities which she had not been able to understand and which she had earlier described to the applicant and the grandmother .

On DATE a panel of experts carried out a forensic psychiatric examination of the applicant ’s daughter . In the course of the examination , the child stated that F. had been touching her genitals and she , in compliance with his commands , had had to touch F. ’s genitals . F. taught her to kiss in an adult fashion . The child stated that she had seen PERSON and F. naked and kissing each other ; she then described the movements that she had observed PERSON and PERSON engaging in while in bed .

The experts found that the child had not been suffering from any mental illness at the time of the events or at the time of the examination ; that she had not shown any tendency to fantasise ; and that she was able to remember the circumstances of the events at issue and to give truthful statements in that regard . However , she could not understand the meaning of the actions that she had observed or in which she had participated . The experts concluded that the child could take part in the investigative measures .

On DATE the deputy head of the investigation division of the NORP regional police department ordered the investigator in charge of the case to immediately speed up the investigation , which , in his opinion , was being conducted too slowly . He requested the investigator to undertake a number of investigative measures .

On DATE and DATE the LOC district police closed the criminal proceedings for lack of corpus delicti in the actions of GPE and F. Having assessed the available material , the investigator found that there had been insufficient evidence submitted to enable the bringing of charges of sexual abuse . In the last decision the investigator also referred to the statements by PERSON who was questioned on DATE and who denied all the allegations , arguing that they were totally false .

These CARDINAL decisions were reversed as unsubstantiated by the supervising prosecutors , who ordered further investigation .

On DATE the GPE district police decided once again to close the criminal proceedings . In examining the statements of the applicant ’s daughter , the investigator considered that these statements could not convincingly prove the alleged events since the child had made those statements belatedly ; furthermore , the child had only been DATE at the time of the events in question . The investigator furthermore noted that these statements did not suggest anything in respect of mens rea , in particular whether there was any sexual intent in ORG ’s and PERSON ’s alleged actions in relation to the child , or whether they had been aware of the fact that the child had been observing them during the alleged instances of sexual intercourse .

The investigator then referred to the statements of the applicant and his mother , as well as of the mothers of QUANTITY girls with whom the child had used to play . The latter QUANTITY women stated in particular that the applicant ’s daughter had told them stories which had suggested that she had been subjected to sexual abuse while she had been living with PERSON and PERSON The investigator noted that those individuals had not directly observed the alleged instances of sexual abuse and that they had simply repeated statements made by the child . The investigator then stated that ORG and F. denied the allegations of child sexual abuse . Other people , such as the child ’s teacher at the child - minding centre and village inhabitants , had not provided any more precise information . Overall , the investigator concluded that the available material had been insufficient for him to conclude that PERSON and PERSON had committed the alleged crime .

On DATE the LOC district prosecutor ’s office reversed the decision of DATE as unsubstantiated . The supervising prosecutor found that the previous instructions given by the prosecutor ’s office had not been followed and that it was necessary to take further investigative measures .

As of DATE , the investigation was ongoing .

On DATE ORG dissolved the marriage between the applicant and PERSON and ruled that the child should live with PERSON The court ordered the applicant to hand over the child to PERSON and to pay her a DATE amount for the support of their daughter .

In determining the place of the child ’s residence , the court first established that until DATE the child had lived with both parents and her paternal grandparents in the applicant ’s flat and that all of them had participated in the upbringing of the child ; the paternal grandparents had taken care of the child when both parents had been abroad for DATE in DATE ; when PERSON had been abroad for DATE and DATE she had transferred money earned by her to the applicant to cover the needs of the family . On DATE the child had been admitted to the child - minding centre in GPE ; the child had been accompanied to and from the centre by the applicant .

The court also established that on DATE PERSON had taken the child and moved from the flat because of conflict between her and the applicant . On DATE the child had been admitted to the childminding centre in the village of GPE . The child had been accompanied to and from the centre by her mother . On DATE the child had been taken from the centre by her father . Since that time the child had been living again in the applicant ’s flat in GPE .

In comparing the applicant ’s flat and the flat where ORG was then living , the court found that both flats were located in GPE and offered appropriate conditions for the residence of the child . In that regard the court referred to the report of the local guardianship office , which stated that both parents provided adequate residential conditions for the child . As to the income of the parents , the father was employed and received a salary ; the mother was a student but worked unofficially and had been abroad to earn money . Both parents had positive reference letters and the child had an equal attitude towards both of them .

NORP The court dismissed as unsubstantiated the applicant ’s allegation that the mother was negligent with the child and that she might have exercised physical violence against the child : in contrast to the results of the medical examination of DATE documenting the injuries on the child ’s body ( see paragraph CARDINAL above ) , the staff of the PERSON child - minding centre had signed a certificate stating that on DATE the child had had no injuries ; furthermore , the police had refused to institute criminal investigation in respect of the child ’s injuries ( see paragraph CARDINAL above ) . The court concluded that there was no link between ORG ’s attitude towards the child and the latter ’s injuries .

Relying on LAW on the Rights of the LAW Article CARDINAL of LAW , the court found that the facts did not disclose any exceptional circumstances which could justify the separation of the child from her mother . Consequently , it determined that the child should reside with her mother .

The applicant appealed against that decision , arguing that the firstinstance court had breached substantive and procedural provisions of domestic legislation and international law . He submitted that in determining the place of the child ’s residence the court should have been guided by the principle of the best interests of the child . The applicant insisted that on DATE PERSON had secretly moved with the child from the flat and destroyed the stability of the child ’s everyday life . The court had failed to properly examine the allegations that ORG had behaved violently towards the child and the possibility that the child had been the target of sexual abuse during the period when she had lived apart from her father with her mother . The applicant emphasised that on DATE he had lawfully taken the child back to his flat since the child had previously been permanently living in his flat and he had never given any consent for ORG to change the child ’s place of residence . In his opinion , the court had paid no attention to the fact that the child had been attached to the paternal grandparents and that her separation from them would be detrimental to her interests . Furthermore , the respective financial capacity of the applicant and PERSON , as well as the residential conditions , had not been properly assessed . Important pieces of evidence had not been included in the case file and part of the evidence had been assessed wrongly DATE namely , the certificate issued by the PERSON child - minding centre regarding the child ’s good state of health was a fabricated document that had been discredited by the forensic medical expert report of DATE .

On CARDINAL DATE ORG dismissed the applicant ’s appeal and upheld the decision of the first - instance court . ORG found that the allegations of child abduction , sexual abuse and physical violence had been groundless . As to the child ’s attachment to the paternal grandparents , ORG considered that the parents played a more important role in the upbringing of the child . Overall , the findings of the first - instance court had been lawful and reasonable .

On DATE ORG dismissed a cassation appeal lodged by the applicant as unfounded .


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

The applicant was born in DATE and lives in PERSON .

NORP In DATE the applicant founded a business which was later incorporated as ORG ( “ FAC ) .

In DATE , PERSON became involved in commercial disputes . In DATE PERSON solicitors were retained in relation to those disputes . However , ORG fees were not settled in full by PERSON .

On DATE PERSON commenced legal proceedings against PERSON in FAC of ORG ( the first - instance civil court in GPE in respect of claims over a certain value ) for payment of MONEY ( “ GBP ” ) in respect of fees relating to a dispute against ORG former accountants .

On DATE Arakin issued a counterclaim alleging professional misconduct and negligence . It sought ORG CARDINAL .

The dispute gave rise to CARDINAL sets of overlapping proceedings . First , the proceedings to establish ORG fees , which ran from DATE to DATE ( in this the courts were assisted by the auditor for taxation , an expert officer of ORG who advises the court on disputes concerning legal fees ) ; second , proceedings in respect of PERSON ’s allegations of fraud against ORG running from DATE to CARDINAL DATE ; third , proceedings concerning the principal claim and counterclaim which ran from DATE to DATE ; and fourth , proceedings settling the overall costs of the case ( excluding the fraud proceedings ) which ran from DATE to CARDINAL DATE .

On DATE , ORG ordered a detailed account of the fees owed to be produced to the auditor for taxation , in order for the amount of the fees due in respect of the litigation in question to be determined .

By DATE all accounts had been lodged with the auditor . On DATE the taxation hearing began before the auditor . It lasted DATE . On DATE the auditor issued his reports .

NORP The parties objected and from DATE ORG which was responsible for overseeing the taxation proceedings , held a number of hearings to settle the procedure and deal with the notes on objections , and also to hold a preliminary debate in the claim and counterclaim ( the third proceedings ) . Some hearings were discharged at FAC request . The court however refused PERSON ’s request to stay the case .

The auditor issued his report on DATE .

By DATE ORG then solicitors had ceased acting for it . In DATE PERSON ’s new solicitors withdrew from acting . From that time onwards PERSON had no legal representation . The applicant sought to appear at hearings in DATE , on ORG behalf .

The applicant subsequently applied for summary decree in the counterclaim and dismissal of the principal action . This was dismissed as incompetent on DATE .

DATE and DATE , ORG sought to regulate the procedure in relation to the notes of objection lodged by both parties in respect of the accounts and dealt with other motions lodged by the applicant . It held a number of hearings .

NORP However , no further progress could be made on the notes of objections until the allegations of fraud had been determined ( the “ second proceedings ” ; see paragraphs CARDINAL below ) . In the course of DATE and DATE , the court heard various incidental motions by the applicant who increased the sum sought in the counterclaim to ORG CARDINAL . He also renewed motions which had previously been refused .

The allegations of fraud made by the applicant having been determined , ORG on DATE ordered a DATE hearing on the notes of objections for DATE , which finally concluded on CARDINAL DATE . In total , around CARDINAL objections had been made , of which , CARDINAL were lodged by PERSON and the remainder by the applicant .

On DATE the ORG gave a judgment on the notes of objections , running to CARDINAL paragraphs . PERSON appealed . On DATE the Inner House ordered that there should be a hearing on DATE . Following that hearing , the ORG found in favour of PERSON on all CARDINAL points raised in the appeal . On DATE the case was remitted to ORG .

On DATE , ORG ordered the parties to lodge their proposals for further procedure .

NORP The accounts were returned to the auditor to consider the impact of the notes of objection which had been upheld . On DATE a taxation hearing was held before the auditor and on DATE he reported on his taxation of the remitted accounts . He assessed the total amount due in legal fees as ORG CARDINAL,CARDINAL.CARDINAL . PERSON accepted that PERSON had paid GBP ORG to date and the sum sued for was therefore the balance of ORG ORG .

On DATE a final hearing took place on the notes of objections . On DATE the ORG delivered its judgment , finally determining all questions relating to the valuation of the accounts . The taxation proceeding were therefore at an end .

In the meantime in DATE , the applicant made allegations about the authenticity of the court papers , which developed into allegations of fraud against PERSON and their solicitors . Hearings took place before FAC DATE . On DATE ORG ordered the applicant to lodge , by DATE , particulars of his allegations . On DATE it directed that the case be heard on DATE . On DATE , having regard to further allegations made by the applicant , it ordered that he lodge details of these allegations within DATE . On DATE , a factual hearing on the allegations was fixed for DATE . This hearing lasted DATE but was ultimately insufficient .

From DATE the court repeatedly attempted to fix hearing dates that the applicant did not accept ; the case was finally heard in DATE .

On DATE the court issued an opinion rejecting the applicant ’s allegations in their entirety . It concluded , inter alia , that none of the allegations were well - founded ; that the applicant had made representations which he knew or ought to have known were incorrect ; that the hearing had taken an inordinate length of time because the applicant had persistently resorted to irrelevant lines of inquiry and had been disorganised in his presentation ; that the hearing had been used as a vehicle to air grievances going beyond its scope and to advance the applicant ’s interests in other litigation ; that the applicant ’s approach had been reckless ; and that he had had no reasonable grounds for his asserted belief in the truth of the allegations .

The applicant sought leave to appeal the decision to ORG of ORG . On DATE the ORG dismissed the application to appeal as incompetent since leave had not been obtained from ORG .

In the meantime , on DATE , ORG awarded costs against the applicant at a punitive rate in light of his conduct . The court also ordered that their payment was a condition to proceed with the counterclaim . DATE the amounts remained unpaid and the matter proceeded on the basis that the only issues to try were contained in the principal claim .

In DATE , the applicant paid the amounts to which the order of CARDINAL DATE referred .

Following the conclusion of the taxation proceedings , the ORG heard the parties on several occasions DATE and DATE to determine future procedure and finally listed an eightday hearing of legal issues to commence on DATE . By the time of the hearing the applicant sought over GBP CARDINAL in his counterclaim . On DATE , after an DATE hearing , the court reserved judgment .

On DATE the ORG delivered its opinion . It noted that ORG claim was a simple one , namely an action for payment of a debt . The applicant ’s position , it said , was “ a great deal more complicated ” . Despite lengthy written pleadings , the court had found it “ difficult to determine the precise factual background ” upon which he relied . Turning first to his defences to the principal claim , the court rejected all except CARDINAL , namely the applicant ’s argument that he had paid the fees due in full . This , the court said , was a matter for evidence appropriate for the subsequent factual hearing .

As to the counterclaim , after a careful examination of the applicant ’s evidence , the court held that it was an “ abuse of process ” . It noted that very grave allegations had been made but that the applicant had produced no expert opinion to support them .

The applicant appealed against the decision . DATE and DATE the ORG dealt with various procedural aspects of the appeal . On DATE the Inner ORG heard the appeal and refused it . The case was remitted to ORG .

On CARDINAL DATE the ORG heard both parties and fixed a hearing on the facts . On DATE that hearing took place . A day was set aside for further argument and the parties lodged detailed notes of arguments , the applicant ’s running to CARDINAL pages .

On DATE the court handed down its judgment . It noted that ORG case was “ straightforward and cogent ” but that it had been “ very difficult to discern the defence to the action ” . The applicant had repeated “ scurrilous allegations ” against partners in PERSON and the witnesses he had led had been of no assistance in determining the question before the court . The court also commented that the applicant had sought to revisit many points which had already been decided . It found in favour of PERSON in the principal claim and held that the applicant was liable in the sum of GBP GPE .

The applicant appealed . On DATE the Inner ORG found the appeal suitable for urgent disposal . A hearing took place on CARDINAL and DATE . In a judgment of CARDINAL DATE ORG upheld the decision of ORG . It commented that it “ had not found it easy to understand the arguments which [ the applicant ] sought to advance ” . It further noted :

“ Throughout the course of this protracted litigation PERSON has sought to revisit arguments and allegations which have not found favour with the court on previous occasions ...

Many of the issues which PERSON has sought to argue before us can not be argued competently before us now . ”

It held that it was not open to it to revisit the various decisions it had made previously concerning aspects of the litigation in the context of interim appeals . This brought to an end the substantive issues in the litigation .

The only remaining issue was costs . PERSON applied for its costs and the applicant lodged various applications . ORG listed a hearing to take place on DATE . However , the applicant contacted the court stating he was unwell , so it was adjourned to CARDINAL DATE . He then told the court he was on DATE on DATE . The court found this an inadequate reason for non - attendance and maintained the date .

The applicant did not appear at the hearing on DATE . ORG granted a further DATE adjournment in order to allow the applicant a “ final opportunity to appear ” . The clerk of court and ORG solicitors sought to bring the hearing , which had been re - listed for CARDINAL DATE , to the applicant ’s attention by e - mail , telephone and by personal attendance at the applicant ’s home address .

On DATE the applicant did not appear and the hearing proceeded in his absence . The judge found in favour of PERSON on the issue of expenses at an enhanced , punitive rate of expenses in light of the applicant ’s conduct . The court commented :

“ When this action was first raised in DATE , it appeared to be in short compass . The pursuer sought payment from the defender of its outstanding professional fees . It was therefore a simple action for recovery of a debt . Since then , PERSON has introduced a great many factual and legal issues , which have been exhaustively examined over many hearings . ”

NORP In relation to the applicant ’s conduct he found that it had been :

“ ... unreasonable and incompetent . He has thereby caused the pursuer unnecessary expense ... ”

It also awarded an additional fee to PERSON to reflect the “ huge amount ” of correspondence and documents sent to ORG solicitors by the applicant , much of which was irrelevant , the complexity of the proceedings , having regard to the “ number , difficulty and novelty of the questions raised ” , the skill time , labour and specialist knowledge required of the solicitors and the accusations of deception , incompetence and bad faith levelled against individual solicitors at ORG . It rejected a number of motions lodged by the applicant .

The applicant appealed and lodged a number of documents . The appeal was refused on DATE . On CARDINAL DATE the applicant was found “ liable in the expenses ” ( that is , liable for the costs ) of that appeal . His various motions were dismissed . ORG again noted that the applicant had sought to reopen issues already determined and continued to express his dissatisfaction with the court ’s substantive decisions .

Meanwhile , in DATE the Lord Advocate ( the chief legal officer of ORG ) applied to have the applicant declared a vexatious litigant . He relied on CARDINAL sets of proceedings , including the ORG litigation .

On DATE the ORG declared the applicant a vexatious litigant but excluded the ORG litigation from the order . It referred to the applicant ’s ill - founded allegations about lack of authenticity of documents which it said were a “ serious abuse of process ” . In coming to this conclusion it also took into account the finding that he had used a proof in the ORG litigation for collateral purposes . Moreover , he had wasted time because of his disorganisation and persistent pursuit of irrelevant matters in that litigation . It noted that the applicant had accepted that his lack of legal expertise had caused delay in the proceedings .


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

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

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

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

In DATE the applicant made a deposit with a private entity , ORG ( “ the ORG ” ) , and was subsequently unable to receive his money back .

On DATE criminal proceedings were instituted against officials of the above entity for financial fraud and the applicant was recognised in DATE as an aggrieved party in those proceedings , being entitled to claim an amount of UAH CARDINAL,CARDINAL.CARDINAL ( equivalent to ORG ) .

On DATE ORG declared the ORG bankrupt .

The founder of ORG , PERSON , was placed on the list of wanted persons .

In DATE the applicant lodged a claim with ORG against ORG and ORG , seeking to recover the losses sustained as a result of the crime under LAW .

By decision of DATE the court rejected the applicant ’s claim on the ground that a special law laying down the conditions and mechanism for enforcing the provisions of Article CARDINAL of LAW had not yet been enacted . Furthermore , the court noted that the identity of the person who caused the damage to the applicant had been established but that her whereabouts were unknown , and that the insolvency of the accused person had not been established .

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

The Civil Code , which came into force in DATE , lays down different obligations as to compensation in respect of damage . Among others , CARDINAL articles , namely Article CARDINAL , relied on by the applicant in the domestic proceedings , and LAW , provide for the ORG to compensate the victims of a crime if the offender is not identified or is insolvent . Article DATE provides as follows :

“ CARDINAL . Pecuniary damage caused to the property of a natural person as the result of a crime shall be compensated for by the ORG if the person who committed the crime is not identified or is insolvent .

NORP The conditions and procedure governing compensation for pecuniary damage caused to the property of a natural person who was the victim of a crime shall be established by law . ”


CASE OF ZIAUNYS v. THE REPUBLIC OF MOLDOVA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in DATE and lives in GPE .

The applicant is a member of ORG , ORG and ORG of GPE .

On DATE the applicant signed a contract with ORG ( “ the company ” ) , registered in GPE ( “ the GPE ” ) , according to which he would deliver to the company QUANTITY of banknotes ( in CARDINAL and ten rouble notes ) issued by the self - proclaimed ORG ( FAC ) ” ( see further details about the events leading to the creation of the self - proclaimed “ FAC ” in ORG and Others v. GPE and GPE [ ORG ] , no . CARDINAL , ORG CARDINALVII ) . In exchange , under the contract , he had the right to select items from the company ’s wholesale catalogue to a value of MONEY ( ORG ) .

On DATE the applicant bought from the “ FAC ” bank CARDINAL “ MONEY ( in CARDINAL and ten rouble banknotes ) issued in DATE . The banknotes issued in DATE were no longer in circulation in the “ FAC , having been replaced by new banknotes in DATE . Such banknotes have never been in official circulation in GPE and had been accepted as payment only in the “ FAC and DATE .

On DATE the applicant submitted to NORP customs CARDINAL sealed bags of banknotes issued by the “ FAC bank in DATE . He asked for permission to ship the items to the GPE , in accordance with the contract with the company . He declared that the paper in the bags had a numismatic value of USD CARDINAL,CARDINAL .

The customs authority decided to store the bags in its warehouse until a decision could be taken about what to do with them . Subsequently , the bags were moved to the LOC of ORG ( “ the STI ” ) , where they have remained since .

By a decision of DATE and further to a report of CARDINAL DATE , ORG decided not to return the banknotes to the applicant and to transfer them instead to the ORG for free as the items were banned from general circulation in GPE .

The applicant asked on a number of occasions for the return of the items confiscated from him . On an unknown date in DATE he initiated court proceedings to have the decisions taken in DATE and DATE set aside and the items returned to him .

On DATE ORG dismissed his court action as lodged out of time . On DATE ORG quashed that decision and ordered a rehearing of the case by the lower court .

On DATE ORG allowed the applicant ’s claims in part . The court found that the banknotes under examination had never been introduced into general circulation in GPE and had never been exchanged for the official currency of the country . There was no evidence in the file that the banknotes had been manufactured for circulation in GPE . The applicant had officially declared the CARDINAL bags of banknotes , which he considered to be waste paper with numismatic value , in order to transport them abroad . Moreover , it had to be presumed that he had obtained the items in a lawful manner , unless proof to the contrary had been adduced . However , nobody had claimed a property right in respect of the relevant items . The court concluded that ORG and the ORG had acted unlawfully .

On DATE ORG quashed the lower court ’s judgment and delivered a new one , rejecting all his claims . The court found that , in accordance with ORG CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL below ) , only ORG had the right to issue banknotes , and that the “ FAC bank had not been given such a right . As a result , the banknotes issued by the “ FAC ” bank could not be introduced into legal circulation and could not , under LAW ( see paragraph CARDINAL below ) , be the lawful object of the contract of DATE . That judgment was final .


CASE OF O'SULLIVAN McCARTHY MUSSEL DEVELOPMENT LTD v. IRELAND

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

NORP The applicant company is engaged in the cultivation of mussels in NORP harbour in Co. PERSON , CARDINAL of several sites in GPE where this commercial activity is exercised . Its business involves fishing for mussel seed ( i.e. immature mussels ) within the harbour DATE and transporting them for cultivation in another part of the harbour . It has conducted this activity at Castlemaine harbour since DATE .

In GPE , mussel seed fishing takes place during DATE , the exact dates being determined DATE by statutory instrument . This activity is subject to obtaining the relevant leases , licences , authorisations and permits ( see under “ Relevant domestic law ” below ) . The competent authority in this respect is the Minister for ORG and the NORP ( hereinafter “ the Minister ” , and “ the GPE ” for the corresponding ORG ) . In order to engage in this activity , operators must be in possession of an aquaculture licence , which has a validity of DATE . A sea - fishing boat licence is required , and the boat used must be entered in ORG . Operators must also hold an authorisation to fish for mussel seed , issued DATE by the Minister ( see under “ Relevant domestic law ” below ) .

Subsequent to the facts giving rise to this application , an additional requirement was introduced pursuant to ORG law . Where mussel fishing is carried out in an environmentally protected area , a “ Natura permit ” must also be obtained ( see paragraph CARDINAL below ) .

According to the ORG , a total of CARDINAL authorisations were issued in DATE to NORP sea - fishing boats to fish for mussel seed , CARDINAL of which operated in GPE harbour on behalf of CARDINAL mussel aquaculture operators .

In DATE , the competent authorities published a notice in the national press announcing the intention to classify CARDINAL sites , including Castlemaine harbour , as a special protection area ( SPA ) within the meaning of the domestic legislation transposing Council Directive CARDINAL/CARDINAL/EEC of DATE on the conservation of wild birds ( “ the PERSON Directive ” , ORG DATE L CARDINAL , p. CARDINAL ) . The notice indicated that it was not envisaged that this would change the usage of the sites concerned . The harbour ’s SPA classification took effect in DATE . The applicant company continued its activities DATE , obtaining the necessary licences and permits .

In DATE , the domestic authorities designated Castlemaine harbour a special area of conservation ( ORG ) within the meaning of the domestic legislation transposing ORG Directive CARDINAL of CARDINAL DATE on the conservation of natural habitats and of wild fauna and flora ( “ the Habitats Directive ” , OJ DATE L CARDINAL , p. CARDINAL ) . As it was now subject to the CARDINAL ORG directives , it had the status of a “ FAC ” site .

Dating back to DATE , ORG was of the view that GPE and several other then ORG Member GPE were not fulfilling their obligations under ORG environmental law , and specifically in relation to the CARDINAL directives referred to above ( references hereafter will generally be to ORG and not ORG law ) . DATE and DATE , it addressed to the NORP authorities CARDINAL letters of formal notice warning that GPE had failed to correctly transpose and apply those CARDINAL directives . Following CARDINAL reasoned opinions issued in DATE and DATE , the ORG brought infringement proceedings against GPE in DATE , pursuant to LAW now LAW ) . It sought a declaration that GPE had failed to fulfil its obligations under several provisions of the directives , namely Articles PERSON ) , ( CARDINAL ) and ( CARDINAL ) , and CARDINAL of the Birds Directive , and Article CARDINAL ) to ( CARDINAL ) of the Habitats Directive . CARDINAL specific aspect of these proceedings concerned the authorisation of aquaculture in protected areas without the requisite prior assessment of the environmental impact of such activities .

On DATE ORG of ORG ( hereinafter “ the CJEU ” ) delivered its judgment in GPE v. GPE ( ORG , ORG : PERSON ) , declaring that GPE had failed to fulfil its obligations under the aforementioned directives in a number of respects . It held , insofar as relevant to the present case :

“ CARDINAL . ... [ R]egarding the aquaculture programmes , the ORG relies , essentially , on ORG in GPE carried out in DATE by GPE as the basis for its view that GPE has systematically failed to carry out a proper assessment of those projects situated in SPAs or likely to have effects on SPAs , contrary to Article PERSON ) and ( CARDINAL ) of the Habitats Directive . In that context , it emphasises the importance of a prior assessment for the purpose of weighing the implications of a project with the conservation objectives fixed for the ORG concerned .

The ORG notes that that study covered CARDINAL authorisations for aquaculture programmes issued by ORG , ORG and ORG during the period from DATE and DATE applications yet to be decided on . Moreover , DATE licences and CARDINAL pending applications concerned aquaculture programmes situated inside or near an LOC . The authorisations issued concern , in PERCENT of the activities authorised in SPAs , oyster and clam farms .

It should also be borne in mind that , under the first sentence of Article PERSON ) of the Habitats Directive , any plan or project not directly connected with or necessary to the management of the site is to be made subject to an appropriate assessment of its implications for the site in view of the site ’s conservation objectives if it can not be excluded , on the basis of objective information , that it will have a significant effect on that site , either individually or in combination with other plans or projects ( Case CCARDINAL/CARDINAL PERSON and PERSON [ DATE ] ECR ICARDINAL , paragraph CARDINAL ) .

The study carried out by GPE refers to a number of potential negative effects of shellfish farming , including the loss of feeding areas and disturbances caused by increased human activity and states that , even when an aquaculture programme is inside an SPA , very little protection is provided for bird habitats . GPE , for its part , does not allege that no aquaculture programmes have any effects on SPAs .

It follows that the authorisation procedure ought to have included an appropriate assessment of the implications of each specific project . It is clear that GPE merely stated , without offering further explanation , that the NORP scheme for authorising mollusc farms , including the provisions on consultation , does in fact provide for detailed consideration of all aspects of an aquaculture development project before a decision is taken on authorisation .

Accordingly , the ORG finds that GPE fails to ensure systematically that aquaculture programmes likely to have a significant effect on SPAs , either individually or in combination with other projects , are made subject to an appropriate prior assessment .

This finding is supported by the fact that GPE has not put forward any specific scientific studies showing that a prior , detailed ornithological study was carried out , in order to challenge the failure to fulfil obligations alleged by the Commission .

Under Article PERSON ) of the Habitats Directive , an appropriate assessment of the implications for the site concerned of the plan or project implies that , prior to its approval , all aspects of the plan or project which can , by themselves or in combination with other plans or projects , affect the site ’s conservation objectives must be identified in the light of the best scientific knowledge in the field . The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site . That is the case where no reasonable scientific doubt remains as to the absence of such effects ( see PERSON and PERSON , paragraph CARDINAL ) . ”

At or around the same time , the ORG found that the GPE , GPE , GPE , GPE , GPE , GPE and GPE had similarly violated their ORG obligations .

In view of the judgment , the Minister considered that it was not legally possible to permit commercial activity in the sites concerned until the necessary assessments had been completed . Accordingly , when granting authorisation for mussel seed fishing for the period DATE to DATE , he prohibited it in CARDINAL locations around the NORP coast , including NORP harbour ( ORG . CARDINAL of DATE , adopted on DATE ) . The applicant company was informed of the situation by an official of ORG on DATE . It wrote to the Taoiseach ( Prime Minister ) that DATE to underline the threat to the livelihood of those affected . It recalled the terms of the notice published in DATE ( see paragraph CARDINAL above ) , and explained that it had just purchased a new boat at a cost of MONEY . The applicant company received a reply from the ORG dated DATE . This explained that baseline data for the area had to be gathered in order to perform the assessment required by the Habitats Directive , as interpreted by the ORG . It indicated that NORP harbour had been given priority for the exercise and that work had already begun to collect the necessary data . It added that the authorities would be seeking the agreement of ORG to allow aquaculture to resume on an interim basis .

DATE the applicant company was issued an authorisation to fish for mussel seed in the harbour , with a starting date of DATE . The authorisation was subject to a number of conditions , including that it did not allow the holder to fish for mussel seed in an area or areas where this activity had been prohibited . On that same date , the temporary prohibition on mussel seed fishing at NORP harbour , and at CARDINAL other locations around the ORG , was maintained in force by ORG . CARDINAL of DATE . The temporary prohibition only applied to mussel seed fishing ; it did not prevent the harvesting of mussels previously fished and laid on farms for cultivation .

The applicant company wrote to ORG on DATE , warning that the supply of mussel seed in the harbour was being consumed by predators and that it would hold the ORG responsible for all losses incurred . It requested a satisfactory resolution within DATE , failing which it would take advice about legal action .

On DATE , following successful negotiations between ORG ( see further below ) , the Minister issued ORG . CARDINAL of DATE removing Castlemaine harbour from the list of locations where mussel seed fishing was prohibited . The applicant company was therefore able to commence mussel seed fishing on the date the instrument came into operation , namely DATE . By that stage , however , natural predators had decimated the mussel seed . Since mussels need DATE to grow to maturity , the financial consequences of the temporary prohibition on mussel seed fishing in GPE harbour in DATE were only felt in DATE . DATE , the applicant had no mussels for sale , representing a loss of profit that it estimated at MONEY .

According to the applicant company , there was no viable replacement for local mussel seed . Previous attempts to bring in mussel seed from other sites had not proved successful due to the high mortality of the seed and to the transport costs involved . It argued that it was therefore wholly dependent on the use of local resources . The applicant company further explained that if there had been any forewarning of the restriction on mussel seed fishing in DATE , it would not have made such a major investment in a new boat purchased in DATE .

In DATE , the harbour was opened for mussel seed fishing from DATE to CARDINAL May , and from DATE to DATE . The applicant company was able to gather the usual amount of mussel seed .

NORP In DATE , in accordance with ORG law , the Minister introduced an additional requirement for fishing in SACs or SPAs , a fisheries ORG permit .

In DATE , the periods authorised for mussel seed fishing in the harbour were from DATE to CARDINAL May , and from DATE to DATE . The applicant company was not able to operate during the first period , as it had not yet obtained such a fisheries Natura permit . When it eventually recommenced fishing at DATE , the mussel seed had once again been depleted by predators , although the applicant company acquired some tonnage . It estimated its loss of profits for DATE at MONEY .

The Government provided the following explanations of the action taken following the ORG judgment , which the applicant company did not dispute . They indicated that even before the delivery of the ORG ’s judgment they had commenced a process to determine how fisheries should be assessed in compliance with the relevant ORG directives . Following that judgment , the ORG immediately began the process of ensuring compliance with ORG law in the fisheries sector . This process involved the domestic bodies with responsibilities for fisheries ( ORG PERSON ) , marine research ( ORG ) and nature conservation ( ORG – ORG ) . Within DATE of the judgment being handed down , ORG prepared a paper in DATE on the distribution of bi - valve ( dredge ) fisheries with the potential to lead to disturbance or significant disturbance of habitat , including the fishing of mussels .

At a meeting in DATE between the ORG and ORG , the latter underlined the need to comply with the judgment by conducting the requisite assessments for aquaculture , and in so doing addressing the cumulative effects of other activities that could adversely affect DATE sites . While the Commission recognised the need for some flexibility , and the small scale of much of NORP aquaculture , it considered that the onus was on GPE to initiate a robust , proportionate and scientific process .

NORP In DATE , the relevant domestic bodies agreed on the need for an alternative approach to assess inshore fisheries on an interim basis , pending the collection of baseline data allowing the appropriate assessment required by ORG law . To this end , a series of steps was proposed . DATE , ORG prepared a working document on fisheries in DATE sites , which included a case study of NORP harbour . The study considered that the consequences of mussel seed fishing on the site were negligible . According to the applicant company , this assessment was consistent with that set out in a draft consultation document which had previously been prepared in DATE by ORG with responsibility for heritage , of which the ORG was then part .

On DATE GPE sent to the Commission its official response to the ORG judgment . It acknowledged that assessments were required in relation to fisheries , and that the necessary baseline data had to be collected at the sites in question . The response also indicated that the NORP authorities would seek the ORG ’s approval for an interim approach .

NORP In DATE , ORG submitted to ORG a finalised study entitled “ Fisheries in Natura CARDINAL ” . ORG was hopeful that the Commission would tolerate an interim approach to the activities in GPE harbour , where the situation was time critical . DATE , the ORG warned that in the absence of sufficient funding and staff it could not provide the necessary assurances to the Commission . It informed the ORG that the assessments available to date were not adequate , and that the ORG shared this view . Additional studies were needed . The Commission ’s stance was that it was prepared to give its temporary agreement to fishing at Castlemaine harbour if the additional studies were submitted and if GPE gave an undertaking to meet the terms of the judgment over a DATE period .

On DATE the ORG sent to the Commission an interim assessment of mussel seed fishing in GPE harbour , indicating that on the basis of its assessment this activity was not likely to have a significant impact on the site . The Commission agreed that , on the basis of this interim assessment , fishing could be allowed in the harbour for DATE only , on condition that GPE submit more detailed assessment procedures with a view to allowing fishing there in future . The Commission sought confirmation that there was an adequate basis in domestic law to ensure fishing activities remained in compliance with the directives . It requested amendments to certain aspects of the assessment , and it also requested a monitoring report . From that point it was considered legally possible to open GPE harbour . The Minister signed ORG ( No . CARDINAL of DATE ) DATE , DATE , allowing mussel seed fishing to recommence on DATE ( see paragraph CARDINAL above ) .

In DATE and DATE the ORG maintained its robust stance , requiring a long - term plan to achieve compliance in order for the interim approach to continue . The ORG indicated the likelihood of a negative assessment due to a decline in several bird populations , and pointed to the need for additional surveys of the site .

In DATE the NORP authorities assured the Commission of its commitment to a verifiable DATE plan to achieve compliance with the directives as regards fisheries and aquaculture . They indicated an allocation of MONEY over DATE for a wide - ranging exercise to collect baseline data . In DATE , GPE submitted its “ roadmap to compliance ” with the judgment to the Commission . The latter approved an interim approach to assessment , based on best available data and the collection of limited additional data in the time available , and subject to stringent management and control arrangements .

There was further engagement between the NORP authorities and the ORG during DATE and DATE regarding compliance with the ORG judgment and the relevant directives . Public consultation was also required in relation to the regulatory changes that had to be made .

The appropriate assessment of NORP harbour was completed in DATE by ORG . Running to CARDINAL pages , it assessed the effects on the site of the different types of aquaculture carried out there and concluded that there was no reason to anticipate any environmental disturbance from mussel fishing . This was CARDINAL of multiple assessments which the respondent ORG had to undertake in light of the ORG judgment .

Along with another local company , which was not directly involved in the cultivation of mussels but was a downstream retailer and exporter , the applicant company instituted proceedings in ORG in DATE against the ORG . It relied on a series of grounds , notably breach of legitimate expectation , operational negligence and breach of the constitutional right to earn a livelihood .

In view of the ORG ’s delay in delivering a defence to the claim , the applicant company brought a motion for judgment in default of defence , which was heard and concluded on DATE . The ORG delivered its defence on DATE .

In DATE the applicant company sought discovery of documents on a voluntary basis . It then applied to the Master of the High Court , on DATE , for an order of discovery , pursuing the matter before him in DATE , DATE and DATE . The Master gave his ruling on DATE , which the applicant company appealed against to ORG . It was granted an order of discovery on DATE , directing the ORG to provide a variety of documents within DATE . The ORG swore an affidavit of discovery on DATE . It swore a supplemental affidavit of discovery DATE , on DATE .

The applicant company issued an amended statement of claim on DATE , which referred to the restrictions applied in DATE and DATE as well .

On DATE the applicant company set the action down for trial and certified it ready for hearing . Over DATE there were some exchanges of correspondence between the applicant company ’s solicitor and the Chief State Solicitor in relation to the hearing of the action . On DATE the applicant company requested a hearing date .

The hearing took place DATE in DATE . Judgment was given on DATE .

The High Court ruled in favour of the plaintiffs . The trial judge accepted their evidence that it would not have been viable for the applicant company to purchase mussel seed from operators based in other locations . He first found that there had been a breach of legitimate expectation , stating :

“ [ T]here was a representation made to the plaintiffs in both the government notice and the newspaper notice of DATE . There was comfort given . What happened from then onwards , the DATE allocation of seed collection authorisations and the constant refurbishing of the plaintiffs business gave rise to a pattern of events where the plaintiffs had good reason to rely upon the comfort given to them that there would not be a summary closure of their business without some good scientific reasons or without some consultation process before doing so . ”

ORG also found that there had been “ operational negligence ” due to the failure of the authorities to carry out the necessary scientific tests or monitoring that would have provided the data required by ORG law . It considered that the failure to undertake these steps was a mistake of law by the Minister , which led to the denial of the applicant company ’s access to the harbour for a period in DATE , causing financial loss . The trial judge accepted the evidence presented by the applicant company that it would have been possible to conduct the requisite analysis within DATE . Had that been done , there would not have been any disruption of the applicant company ’s activities .

NORP The applicant company claimed compensation for lost profits caused by the restrictions in DATE and DATE , which it estimated at MONEY and CARDINAL respectively , making a total claim of CARDINAL . The ORG challenged both the basis for the applicant company ’s calculations and the quantum of damages sought . ORG decided that the applicant company ’s claim should be reduced by CARDINAL . This resulted in an award of MONEY for its losses over DATE in question . It awarded the other local company MONEY .

The ORG appealed both on the issues of liability and the quantum of damages awarded . It filed its notice of appeal with ORG on DATE . The applicant company brought a cross appeal in relation to the estimation of damages . A stay issue was ultimately resolved by ORG on DATE . On DATE the ORG certified that the appeal was ready for hearing . The appeal was granted priority by the Chief Justice on DATE . The hearing took place on DATE , and judgment was given on CARDINAL DATE .

ORG was unanimous in overturning the High Court ’s ruling on legitimate expectation . Addressing this issue , PERSON , with whom the other members of the court agreed , stated :

“ CARDINAL ... [ T]he only representation which it can be said was expressly made by the Minister ... was to the effect that “ it is not envisaged ” that there would be any restriction on traditional activities . That statement was made in DATE , and was in the context both of developing NORP environmental legislation and also in the context of the process leading to the identification of areas within GPE which would be designated for the purposes of that NORP legislation . It could not be said to amount to a clear commitment on the part of the Minister that there could never be any adverse consequences . What the consequences were going to be of the designation of an area for NORP environmental purposes was a matter of NORP law .

CARDINAL As events unfolded , it became clear that the Minister did not have the legal authority , as a matter of NORP law , to allow for the uninterrupted continuance of traditional activities in protected areas unless and until an appropriate assessment had been carried out . ... The Minister could give no greater assurance than that , in the then view of the Minister , it was not envisaged that there would be problems for traditional activities .

CARDINAL Next , reliance is placed on the fact that , as found by the trial judge , the ongoing activities of [ the applicant company ] were carried out to the knowledge of the Minister and on the basis of DATE legal measures put in place by the Minister which facilitated the so - called opening of the harbour . However ... the fact that there may have been an error in the past can not create a legitimate expectation that that error will be continued into the future . The fact that the Minister was mistaken in his view that traditional activities , of which the Minister undoubtedly knew , could continue provided that the Minister put in place the appropriate legal measures , and was also in error about the fact that those legal measures could be put in place in conformity with NORP law without carrying out an appropriate assessment , can not create a legitimate expectation to the effect that that situation would continue .

CARDINAL While there undoubtedly was significant expenditure , and while the incurrence of expenditure on foot of a representation may form part of the ORG ’s assessment in determining whether it would be appropriate to allow a public authority to resile from a representation made , expenditure will not be relevant if there was no legitimate expectation in the first place .

CARDINAL ... As interpreted by the [ CJEU ] , a permission for activity in a protected area can only be given when there is an appropriate assessment . An appropriate assessment requires that , on a scientific assessment , risk be excluded . The Minister was required , therefore , as a matter of NORP law , to be concerned not with unproven risk but rather with proven absence of risk . ”

On the issue of operational negligence , CARDINAL of the CARDINAL judges upheld the ORG ’s appeal . CARDINAL members of the majority gave judgment .

MacMenamin J observed that strong policy considerations arose in the case . The question of how to afford redress to individuals who had suffered the detrimental effects of wrongful actions by the executive was a legitimate concern . Yet changes in the law of negligence and reformulations of ORG liability must be carefully and incrementally approached with a clear view as to their long - term consequences . While there undoubtedly was a strong public interest in ensuring a proper balance between private and public rights and duties , there was a stronger public interest in ensuring that government can actually function , and that administrators were not impeded in making decisions through fear of a morass of litigation . The courts should not become a form of surrogate unelected government , second guessing prima facie lawful government actions in areas of discretion that did not raise questions of exceeding statutory powers . Reviewing the established domestic jurisprudence , he concluded that operational negligence had not been accepted in NORP law . He considered that in the present case ORG had identified a tort with such broad headings lasting DATE that it was questionable whether there was a justiciable controversy at all . It was impossible to say whether it was a tort committed by act or by omission . It was unclear at what point in time the Minister had acted wrongfully in relation to the plaintiffs . It might be said that , by allowing aquaculture to continue DATE , the Minister had actually had regard to the applicant company ’s interests , even at the cost of failed adherence to ORG law . He further observed :

“ CARDINAL . There then arises a further unavoidable question , that is , whether , if the Minister had , in fact , acted DATE , the respondents would inevitably have incurred significant losses , by a similar necessary suspension of activity in LOC , as occurred from DATE , in order to obtain appropriate baseline data ? If the detailed surveys complained of were necessary to establish the baseline , one is only left to speculate as to how these surveys could have been carried out without exactly the same or similar cessation of activity in the harbour , albeit in DATE . ”

CARDINALFrancovich breach of ORG law ( ORG and ORG , ORG : C:CARDINAL:CARDINAL ) but rather from the damage allegedly caused by the implementation of ORG law after a breach thereof was identified by the ORG . The fallacy in the case was to seek to isolate some private duty owed to the plaintiffs by the Minister from his overarching public duty to comply with and implement ORG environmental law .

PERSON , concurring , noted that LAW , the Minister had no discretion at all . He underlined CARDINAL salient facts . First , many of the CARDINAL sites designated under the LOC and Birds Directives were places of commercial activity of some sort . Following the ruling of the ORG , emergency measures had to be taken to allow economic operators some latitude for the continuation of even limited business activity within the sites . This was done essentially by NORP public servants negotiating with the ORG . There were about forty sea - based sites , including Castlemaine harbour . Second , the ORG had not given a firm undertaking that the new environmental classification of Castlemaine harbour would not affect the applicant company ’s activities . Third , the closing and opening of the harbour was done by valid statutory instruments . He considered that this ruled out any question of liability in negligence .

He then referred to the primary legislation governing fishing , the main objective of which was the conservation and rational management of the national fish reserves . This point was central to where any duty of care might lie . The starting point in the tort analysis had to be whether the Minister had owed a duty of care to the applicant company . There was a need for caution in holding that the public authorities owed a duty of care in particular circumstances , since it could greatly hinder their normal functioning . There were other means to deal with improper conduct by a public body , such as judicial review and the tort of misfeasance in public office . He reiterated that the authorities had not had any choice ; the Minister had acted as prescribed by ORG law . At most , it might be said that there was some choice to be made about whether to give priority to some of the affected sites over the others . Yet it was hard to argue that NORP harbour was more deserving than the other locations . Concentrating resources on some sites would have left operators in other sites waiting longer . The ORG had instead adopted a strategy of vigorous negotiation with the ORG to attempt to salvage whatever could be recovered for the benefit of users of all of the sites concerned .

The concept of operational negligence had not yet been accepted as part of domestic law . It would mean a lack of certainty in the law , and make public decision - making subsidiary to the views of experts at several removes from the pressures of government . It would mean arrogating broader functions to the courts than provided for in the LAW . The Minister had exercised powers based on statute and each decision had been correctly expressed through a statutory instrument . Given the general conservationist aims of the primary legislation , there was no statutory duty in favour of the applicant company . There was no discretion vested in the Minister to exempt any economic actor from ORG rules . There was no duty of care towards the applicant company that could found an action in negligence . Instead , the duty of care was towards the wider community , expressed as the protection of the environment .

Writing for the minority , PERSON considered that the High Court judgment , insofar as it concerned negligence , should be upheld as regards the events of DATE . Concerning the events of DATE , he noted that the applicant company had not provided evidence allowing a causal link to be established between the alleged failure on the part of the Minister and its inability to conduct its business DATE . It therefore had no cause of action against the ORG in this respect .

Applying the relevant principles to the case , PERSON clarified that there could not have been a duty on the Minister in DATE to refrain from closing the harbour until an appropriate assessment had been carried out , as this would have been contrary to ORG law . To the extent the harbour could be opened , this was only permissible in accordance with the interim measures agreed with the Commission . The real question was therefore :

“ CARDINAL ... In the light of developments in NORP law , did the Minister owe a duty of care to those who , to his knowledge ( and up to then with his permission ) , were carrying out activities in protected areas , to ensure that he had appropriate survey(s ) and other scientific evidence available to enable a decision to be made for the purposes of considering whether to permit the continuance of traditional activities and , should appropriate evidence be found to be present , to allow those activities to be authorised ? ”

He considered that on the facts of the case the necessary elements of foreseeability and proximity were present . The Minister was well aware of the activities taking place in GPE harbour . He was also aware , in light of the statement published in DATE , that there was a potential issue that might arise in relation to such activities . Therefore , the Minister had been fully aware that any failure to place himself in a position to make a sustainable decision about the continuance of traditional activities in the sites concerned could have a significant effect on those involved in them . A private party in an analogous position would undoubtedly have been held to have a duty of care towards such persons . He further noted that it must have been clear to the Minister for some time prior to the ORG judgment that there was a risk that the position taken by ORG would be upheld over that of the ORG . In that eventuality , there would be an immediate problem due to the absence of the necessary scientific data for the appropriate assessment to be made , leading to at least the temporary interruption of the activities of the applicant company and others operating in protected areas . These formed a small and defined group of persons that , to a large extent , were actually known to the Minister and the ORG .

As to the presence of any countervailing policy factor , he reiterated that the case did not concern matters of policy , discretion or adjudication . It did not touch upon the allocation of resources or the making of statutory decisions . It was about the purported duty of the Minister to take reasonable steps to ensure that he would be in a proper position to make a decision under NORP law and any relevant NORP measures . He clarified that he did not necessarily disagree with the view of MacMenamin J that no specific duty of care on the Minister had arisen in the period after the ORG judgment . At that stage , the authorities had found themselves on the back foot , with many decisions to be made about the allocation of the resources needed to conduct appropriate assessments at the sites concerned . But the actions and decisions in DATE and later were not relevant to the duty of care as he had defined it :

“ CARDINAL ... [ T]he Minister got it wrong by failing to put in place measures to secure the appropriate scientific data to enable an appropriate assessment to be carried out long after it had become clear , by reason of the position adopted by the Commission , that there was , to put it at its mildest , a significant doubt as to whether the Minister ’s position was correct .

CARDINAL NORP ... [ I]t seems to me that the duty of care which I suggest should be held to lie on the Minister does not derive from any balancing exercise at all and does not involve any aspect of the undoubted over - arching public duty which the Minister was obliged to perform . Against what can it be said that the Minister was balancing when he decided not to assemble the necessary scientific information and data ( despite the Commission ’s reasoned opinion ) prior to the decision of the ECJ ? What over - arching public duty would have been in any way impaired by the collection of such data ? There is no evidence to suggest that the failure to assemble the necessary data was based on any decision involving policy , discretion or adjudication . ”

Finally , he did not agree with the majority that the applicant company ’s business would have been interrupted in any event if the Habitats Directive had been correctly implemented at an earlier point in time . According to PERSON , the evidence accepted by ORG was that the necessary data could have been collected and analysed in a relatively short period of time , avoiding any interruption of the applicant company ’s usual activities . There was thus a causal link between the failure to assemble the relevant data and conduct the assessment at an earlier point in time , and the interruption of the applicant company ’s activities in DATE .

In relation to damages , PERSON noted that there were many points of disagreement between the applicant company and the ORG over the manner in which the former ’s losses should be properly assessed . He considered that the difficulties with the evidence and the figures would have made it impossible for ORG to conduct a fair and just calculation . Had the ORG ’s appeal been rejected , the proper course would have been to remit the question of damages to ORG for reassessment .


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

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in Gdańsk .

At the relevant time , the applicant was a member of ORG and a member of the PERSON and Justice party .

On DATE the applicant and several other politicians , experts and journalists , participated in a live television programme , Warto rozmawiać ( “ It ’s good to talk ” ) , shown on TVPCARDINAL . The programme was also broadcast on TVP Polonia on DATE .

During the programme the applicant took out a copy of PERSON , a NORP DATE newspaper and , pointing to particular pages , said :

“ I would like to show you the nature of the relationship between this media agreement ( “ uklad ” ) ... and the attacks on PERSON and ORG . I will show you PERSON , which for the first CARDINAL pages , for example DATE , is a frenzied attack on PERSON and ORG . Out of modesty I will not mention that a horrible piece about me , full of lies , is on the first page . On the second page , a frenzied attack on PERSON and ORG . Here , “ Students fear flogging ” , etc . etc . , “ ORG miracles ” . This is just obsessive propaganda . But let ’s go further , to page CARDINAL . And what do we see ? We see an advertisement entitled “ We have built one of the world ’s biggest stock markets with the participation of NORP shareholders . We are proud of that . ” This is an advertisement for the company ORG ....

So the paradox is that usually in newspapers they advertise washing powders , cosmetics , beers , or cars , that is , widely available consumer goods ( powszechnego nabycia ) . This [ company ] is a monopolist . It does not need any advertising . This company imports most of the crude oil into GPE and drives MONEY away from GPE to another company , which is registered somewhere in GPE . This is not about an advertisement . This is [ about ] financing mass propaganda against PERSON and ORG through an agreement which has been threatened by PERSON and ORG , so that such dubious deals ( geszefty ) ...

The point is that PERSON and ORG has interfered with extremely serious connections , which have been draining ...

Just one sentence ... but the jokes are over , and this structure ( układ ) understood that there will be no early elections , there will be no minority government , this is a chance for an institutional construction ... ”

During the applicant ’s statement CARDINAL of the journalists interrupted him by saying : “ But this would be more appropriate if someone from PERSON was here . ” However , the applicant continued with his statement .

On DATE , ORG , the publisher of ORG , brought a civil claim against the applicant for the protection of its rights . It claimed that the applicant ’s statements during the television programme on DATE had harmed its good name and credibility and asked that the applicant be made to have an apology published in PERSON and broadcast on TVPCARDINAL and to pay MONEY ( ORG ) to a charity .

On DATE ORG granted the claim and ordered the applicant to issue an apology via PERSON and TVPCARDINAL for the statements he had made . It further ordered the applicant to pay ORG CARDINAL ( approximately MONEY ( ORG ) to a charity and ORG CARDINAL ( approximately EUR CARDINAL ) in court fees .

The text of the apology to be published by the applicant was as follows :

“ I declare that the public statement I made during the programme Warto rozmawiać , broadcast on DATE on TVPCARDINAL , included untrue , defamatory allegations and suspicions about ORG , a company registered in GPE , and about its publishing activity regarding PERSON . I confirm that those allegations caused negative consequences for ORG in conducting their business activities , in particular a loss of indispensable credibility and trust .

Consequently , I apologise to the GPE - registered company ORG ( the publisher of PERSON ) for having publicly disseminated untrue , defamatory statements which could have harmed its good name , credibility and reputation .

The above statement is made as a consequence of losing a civil case . ”

During the proceedings the applicant submitted that it had not been his intention to offend the plaintiff . In the television programme he had merely expressed a value judgment relating to aggressive and clearly CARDINAL - sided articles published in PERSON . He further noted that as his statements had been value judgments he had not had to prove their veracity .

The court considered that the applicant had breached the plaintiff ’s rights , in particular in respect of its good name , credibility and reputation . It could be seen from the applicant ’s statement that he had wished to point out to the audience that the plaintiff and PERSON had had some kind of media / business agreement , whereby articles against PERSON and ORG had been published in PERSON and financed via advertisements .

The court observed that the applicant ’s statement had contained both facts and conclusions drawn from those facts .

The court further observed that an accusation that a newspaper had published articles ordered by a sponsor was clearly offensive to the publisher . Likewise , it was offensive to the publisher to be associated with a company that allegedly conducted morally doubtful activities . The defendant had not submitted any evidence in support of his allegations . He had failed to explain on what basis he had drawn the conclusion that the income obtained from a particular advertisement had resulted in articles being published in PERSON . Furthermore , there had been no reason to believe that the income obtained from the ORG advertisement had been connected with any particular articles in PERSON , particularly the ones that the applicant had referred to as “ a frenzied attack on PERSON and ORG ” .

The court stressed that ORG had at the relevant time placed advertisements in several newspapers and magazines . However , the applicant had not alleged that those other newspapers or magazines had been involved in the alleged agreement ( układ ) . The court pointed out that a publisher could not refuse to publish an advertisement unless CARDINAL of the grounds set out in the press law existed , which had not been the situation in the present case . Moreover , as a rule , a publisher was not responsible for the content of advertisements .

The court did not agree with the applicant that he had not wished to infringe the plaintiff ’s rights . It noted that the applicant had prepared in advance to make the statement in question . He had already had a copy of PERSON when he had entered the television studio and he had had it in his hand while making the statement . In the court ’s opinion , the declaration had not been made spontaneously .

Lastly , the court observed that the applicant ’s statement could not have been explained on the grounds that it had been in the public interest . On the contrary , it was in the public interest that public figures such as the applicant , a member of parliament , should base the opinions they expressed in the media on verified facts and did not breach the rights of others .

The applicant lodged an appeal against the judgment . He argued , amongst other things , that ORG had wrongly classified his statements as facts and not as value judgments .

On DATE ORG upheld the firstinstance judgment and ordered the applicant to pay MONEY ( about EUR CARDINAL ) in court fees for the proceedings at second instance .

ORG considered that the first - instance judgment had not related to the part of the applicant ’s statement concerning articles about himself and PERSON and ORG , even though he had called them “ frenzied attacks ” , because it was well known that PERSON was critical of PERSON and ORG and that was not something which needed to be proved . However , the applicant ’s allegations that ORG had conducted unclear or even suspicious dealings under the cover of placing advertisements in PERSON , and had in fact financed them only to destroy PERSON and ORG , which , for its part , had been fighting against the “ agreement ” between the company in question and PERSON , had been statements of fact . Nevertheless , the applicant had not proved the truthfulness of his statements about the connections between the plaintiff and the ORG company .

The court agreed with ORG that the applicant had prepared in advance to make the statement in question . The programme had concerned different issues and the statement had not been a response or reaction to the discussion between the participants . During the programme the applicant had kept a copy of PERSON under his chair , which he had shown to the cameras at the relevant moment .

As regards the PLN MONEY ( about EUR CARDINAL,CARDINAL ) to be paid to a charity , the court considered that to be a modest sum and the costs of publishing an apology a normal consequence of the applicant ’s wrongdoing .

The applicant lodged a cassation appeal against the judgment . He argued that ORG had wrongly applied the standards of LAW and had thus considered his statement to be one of fact rather than a value judgment . In his opinion , he had expressed value judgments during a public debate and had therefore not undermined the plaintiff ’s good name .

The applicant ’s cassation appeal was dismissed by ORG on DATE .

The court considered that the statement in question , in so far as it had concerned relations between ORG and PERSON , had been a statement of fact . The applicant had spoken of suspicious links between PERSON and the publisher of the advertisement and the creation of fictional reasons for receiving funds from that publisher , which was all aimed at allowing PERSON to oppose PERSON and ORG . Such a statement , according to the court , had gone further than being a simple opinion about an advertisement in the press . Adding more information had put ORG advertisement in a completely different , negative light . Asking the applicant to prove such a statement had not been excessive and had not interfered with the freedom of political debate , but had been necessary for the accuracy and pertinence of such a debate .

The court further referred to LAW and stressed that freedom of expression was not absolute . Noting the case of NORP v. GPE ( no . CARDINAL , ORG CARDINALVIII ) , it further reiterated that where a statement amounted to a value judgment , the proportionality of the interference may depend on whether there existed a sufficient factual basis for the impugned statement , since even a value judgment without any factual basis to support it may be excessive . In the present case , the defendant had not even attempted to prove the accuracy of his statements about the alleged connections of which he had accused the plaintiff .

On DATE ORG instituted enforcement proceedings in order to summon the applicant to comply with the obligations imposed by ORG judgment of CARDINAL DATE .

On DATE ORG ordered the applicant to publish the apology in question in PERSON ( in a smaller size than originally indicated ) . Since the applicant failed to comply with that order , on DATE ORG allowed ORG to publish the apology in PERSON in the applicant ’s name and ordered him to cover the costs of publication of ORG MONEY ( about EUR CARDINAL ) .


CASE OF URECHEAN AND PAVLICENCO v. THE REPUBLIC OF MOLDOVA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

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

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

Both applicants were politicians at the time of the events . The first applicant was mayor of PERSON and the leader of an opposition political party . The second applicant was a Member of ORG ( “ MP ” ) and member of an opposition party .

On DATE and CARDINAL DATE the then president of GPE Mr PERSON ( hereinafter “ the President ” ) participated in CARDINAL television programmes on CARDINAL privately owned channels , CARDINAL of which had national coverage . He was interviewed by journalists on various topics such as the economy , justice , foreign relations and elections . The President stated , among other things , that “ during DATE of activity as a Mayor of GPE , Mr PERSON did nothing but to create a very powerful mafia - style system of corruption ” . When referring to the second applicant and to other persons , the President stated that all of them “ came straight from the ORG ” .

Both applicants brought libel actions against the President , seeking a retraction of the impugned statements and compensation . The first applicant sought compensation of CARDINAL NORP lei ( MDL ) , while the second applicant claimed MDL CARDINAL plus payment of her court fees and legal costs . The President ’s representative opposed the actions arguing that the impugned statements had been covered by his immunity .

On DATE ORG discontinued the proceedings in the case lodged by the first applicant on the grounds that the President enjoyed immunity and could not be held responsible for opinions expressed in the exercise of his mandate . The court gave the following reasoning in its decision :

“ Having examined the materials of the case and heard the parties , in the light of LAW , the court considers it necessary to strike out the case .

Thus , LAW para . CARDINAL of the LAW provides as follows : ‘ The President of GPE shall enjoy immunity . He may not be held legally responsible for opinions expressed in the exercise of his mandate’ .

It its judgment Nr . CARDINAL of DATE on the interpretation of LAW , ORG held that legal responsibility encompasses responsibility under criminal , civil and administrative laws .

In the same judgment , ORG gave an extensive explanation to the expression “ opinions expressed in the exercise of his mandate ” used in LAW , holding that it means the point of view , opinions and convictions expressed in the exercise of his mandate in respect of matters and events from public life .

In such circumstances of fact and law , the court considers it necessary to strike out the case against the President of GPE , PERSON , on the ground that he can not be held liable under civil law . ”

On DATE ORG discontinued the proceedings in the case lodged by the second applicant on the grounds that the President enjoyed immunity . The court gave the following reasoning in its decision :

“ Having heard the arguments of the parties and having analysed the materials of the case , the court considers well founded the plea of the representative of the defendant to strike the case out .

The LAW guarantees a large immunity to the chief of the state . Thus , LAW para . QUANTITY of the LAW provides as follows : ‘ The President of GPE shall enjoy immunity . He may not be held legally responsible for opinions expressed in the exercise of his mandate’ .

For elucidating the limits of this constitutional immunity , the court refers to judgment Nr . CARDINAL of DATE of ORG . Giving its interpretation to LAW , ORG held that legal responsibility encompasses responsibility under criminal , civil and administrative laws .

ORG also gave an explanation to the meaning of the expression ‘ opinions expressed in the exercise of his ORG ruling that it means the point of view , opinions and convictions expressed in the exercise of his mandate in respect of matters and events from public life . From the meaning of the judgment of ORG , the court considers that the independence of the opinions of the President of GPE in the exercise of his mandate is absolute and perpetual .

In her action lodged with the court , plaintiff PERSON relies on Articles DATE of LAW and asks for the President of GPE to be held liable under civil law , namely for the opinions expressed by him publically in a programme in the exercise of his mandate .

In view of the circumstances described above , bearing in mind the principle of the presidential immunity enjoyed by the President of GPE and of the impossibility to hold him responsible under law , the court comes to the conclusion that the present case must be struck out of the list of cases because in this case the President of GPE can not be held liable either by a court or by any other bodies . ”

Both applicants appealed , arguing that LAW of the LAW afforded immunity to the President only in respect of opinions he expressed and not in respect of statements of fact . Moreover , they argued that the impugned statements made by the President had not been in connection with the exercise of his official functions , and that the court of first instance had failed to determine whether that had been the case . In support of that argument , the second applicant pointed to the President ’s official duties as enumerated in the LAW , and to the fact that some of the topics discussed during the television programme , such as problems in the economy , foreign affairs and the functioning of parliament , fell outside the scope of the President ’s official functions .

The second applicant also stressed that the accusation made against her ( that she had belonged to the ORG ) was very offensive , and had been made by a very important person in the ORG at a TIME on a channel with national coverage . Even if the President had been exercising his official functions when participating in the television programme , the defamatory accusations made against her could not be considered part of those functions . Both applicants complained that the first - instance decision had unjustifiably limited their right of access to court , in breach of LAW and LAW .

On DATE and DATE ORG dismissed the ORG appeals and upheld the judgments at first instance .