Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice)

Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

In DATE and DATE the applicant ’s CARDINAL companies were subject to a tax inspection . The tax inspection was concluded with a final report on DATE .

On DATE and DATE the tax authorities imposed on the applicant additional taxes as well as tax surcharges ( veronkorotus , skatteförhöjning ) for DATE as he had , inter alia , received disguised dividends from the companies . The amount of tax surcharges varied MONEY ( ORG ) .

NORP By letter dated DATE the applicant sought rectification from ORG ( verotuksen oikaisulautakunta , prövningsnämnden i beskattningsärenden ) , requesting it to quash the decisions of DATE and DATE concerning DATE .

NORP By letter dated DATE the applicant lodged a material appeal ( perustevalitus , grundbesvär ) with ORG ( hallinto - oikeus , förvaltningsdomstolen ) in respect of DATE .

On DATE ORG rejected the applicant ’s applications for rectification concerning DATE and DATE .

NORP By letter dated DATE the applicant appealed against the rectification decisions of CARDINAL DATE to ORG , requesting that the taxation decisions concerning DATE and DATE be quashed and the tax surcharges be withdrawn . He referred to the ne bis in idem principle and claimed that the taxation decisions violated that principle .

On DATE ORG cancelled some of the tax surcharges in respect of tax DATE and quashed the relevant tax decisions . For the rest , it rejected the applicant ’s appeals . The court found that there was no impediment to imposing taxes on disguised dividends even if there was already a final criminal judgment in this respect , because imposing taxes on disguised dividends was not considered criminal . There could thus be no question of double jeopardy in this respect . The taxation decisions for DATE and DATE were thus upheld . As far as the tax surcharges and the right to impose additional taxes were concerned , the court found that the tax surcharges and the charges on tax fraud concerned the same matter . The tax surcharges thus related to acts in respect of which the applicant had already been convicted or acquitted . As both matters were pending simultaneously and not consecutively , there was no impediment to continuing the taxation proceedings . Even if the criminal proceedings became final while the taxation proceedings were still pending , this did not prevent the continuation of the taxation proceedings . There was thus no reason to change the tax surcharges as far as the corresponding criminal charges had been dismissed , namely , in respect of the disguised dividends received during DATE and DATE . As far as the proceedings led to both criminal conviction and imposition of tax surcharges , the situation was contrary to LAW and the tax surcharges were therefore cancelled in respect of tax DATE . The decision was not unanimous .

By letter dated DATE , the applicant appealed against the ORG decision to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , reiterating the grounds of appeal already presented before ORG . He argued that his acquittal prevented the further examination of the same matter in taxation proceedings .

On DATE ORG refused the applicant leave to appeal but granted ORG ( veroasiamies , skatteombudet ) leave to appeal . It quashed ORG decision regarding cancellation of the tax surcharges and upheld the lower court ’s decisions . The court found that it had , in its decision of DATE , examined the scope of the ne bis in idem principle and the ORG ’s case - law in this respect . In the present case the charges and the tax surcharges concerned essentially the same matter . However , the ne bis in idem principle was applicable only when the first set of proceedings had become final before the second set of proceedings started . In the present case the proceedings had been simultaneous . Tax surcharges could thus be imposed on the applicant even if the criminal proceedings against him had already become final . ORG decision thus needed to be quashed .

On DATE the public prosecutor brought charges against the applicant , inter alia , for aggravated tax fraud ( törkeä veropetos , grovt skattebedrägeri ) concerning DATE . According to the charges , the applicant was accused of aggravated tax fraud as he had avoided taxes . The tax authorities joined the charges and presented a compensation claim totalling EUR CARDINAL,CARDINAL.CARDINAL plus interest , which was the amount of avoided taxes .

On DATE ORG ( käräjäoikeus , tingsrätten ) convicted the applicant of aggravated tax fraud , and sentenced him to a suspended prison sentence of DATE . He was ordered to pay the tax authorities ORG plus interest in compensation for the avoided taxes . The court found that the applicant had avoided taxes during DATE but dismissed the charges as far as they concerned the disguised dividends , for lack of proof .

By letter dated DATE the applicant appealed to ORG ( hovioikeus , hovrätten ) , requesting that the charges of aggravated tax fraud be dismissed as tax surcharges had already been imposed in the matter .

On DATE ORG upheld the ORG judgment . It found that possible tax surcharges imposed on the applicant did not prevent him from being convicted of tax fraud and sentenced .

On an unspecified date the applicant appealed to ORG ( korkein oikeus , högsta domstolen ) , reiterating the grounds of appeal already presented before ORG .

On an unspecified date , ORG granted the applicant leave to appeal .

On DATE ORG upheld ORG judgment . It found that the charges of aggravated tax fraud undisputedly concerned the same failure to declare income for which tax surcharges had been imposed for DATE . The court found that the fact that taxation proceedings became final while criminal proceedings were still pending did not prevent the examination of the charges being continued . In the present case , the charges had been brought before the time - limit for lodging an application for rectification had run out . The tax surcharges in respect of DATE were thus all still pending before ORG . As the charges had been brought while the taxation proceedings had not yet become final , there was no impediment to examining the charges of aggravated tax fraud . This judgment was published ( ORG ) .


CASE OF CARVALHO PINTO DE SOUSA MORAIS v. PORTUGAL

Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant became a patient of the gynaecology department of ORG ( since renamed ORG – FAC , hereinafter “ the CHLC ” ) .

On DATE the applicant was diagnosed with bartholinitis , a gynaecological disease , on the left side of her vagina ( bartholinite à esquerda ) . She started treatment , which included drainages ( drenagens ) . After each drainage the FAC gland would swell , causing the applicant considerable pain . She would thus require a second drainage and painkillers .

She was offered surgery for the condition during a consultation at DATE .

On CARDINAL DATE the applicant was admitted to the CHLC for a surgical procedure to remove the left ORG gland . On CARDINAL DATE the applicant had both glands , on the left and right sides of the vagina , removed .

On an unknown date after being discharged , the applicant began to experience intense pain and a loss of sensation in the vagina . She also suffered from urinary incontinence , had difficulty sitting and walking , and could not have sexual relations .

On an unknown date the applicant was informed after being examined at a private clinic that the left pudendal nerve ( nervo pudenda do lado esquerdo ) had been injured during the operation .

On DATE the applicant brought a civil action in ORG do ORG ) against the ORG under LAW ( ação de responsabilidade civil extracontratual por facto ilícito ) , seeking damages of QUANTITY ( PTE ) , equivalent to MONEY ( ORG ) , of which PTE CARDINAL ( EUR CARDINAL ) was in respect of non - pecuniary damage owing to the physical disability caused by the operation .

On DATE ORG ruled partly in favour of the applicant . It established , inter alia , the following facts :

( i ) that the applicant had suffered since DATE from a physical deficiency which had given her an overall permanent degree of disability of PERCENT and that the disability had resulted from the left pudendal nerve being cut ;

( ii ) after being discharged from hospital , the applicant had complained of pain associated with insensitivity in the part of the body which had been operated on and which had become swollen ;

( iii ) the left pudendal nerve had been injured during the operation , which had caused the pain from which the applicant was suffering , the loss of sensitivity and the swelling in the vaginal area ;

( iv ) the applicant had suffered from a decrease in vaginal sensitivity due to the partial lesion to the left pudendal nerve .

On the merits , ORG found that the surgeon had acted recklessly by not fulfilling his objective duty of care , in breach of leges artis , and established that there was a causal link between his conduct and the injury to the applicant ’s left pudendal nerve . ORG also established that it was that injury which caused her , among other problems , the pain and loss of sensation in the vagina and urinary incontinence . As a consequence , she had difficulty walking , sitting and having sexual relations , which , all together , made her feel diminished as a woman . Consequently , the applicant was also depressed , had suicidal thoughts and avoided contact with members of her family and friends . For those reasons ORG considered that the applicant should be awarded LAW in compensation for non - pecuniary damage . In respect of pecuniary damage , ORG awarded her ORG CARDINAL , of which LAW was for the services of a maid the applicant had had to hire to help her with household tasks .

On an unknown date the PERSON appealed to ORG ( Supremo Tribunal Administrativo ) against the judgment of ORG . The applicant lodged a counter - appeal ( recurso subordinado ) , arguing that she should have received EUR CARDINAL in compensation and that the CHLC ’s appeal should be declared inadmissible . An opinion from the Attorney ORG attached to ORG ( Procuradora Geral Adjunta junto do Supremo Tribunal Administrativo ) stated that the CHLC ’s appeal should be dismissed because it had been established that there had been a violation of leges artis . As a consequence , the various requirements of the obligation to pay compensation had been verified and the first - instance court had decided on compensation in an equitable and proper way .

On DATE ORG upheld the first - instance judgment on the merits but reduced , inter alia , the amount that had been awarded for the services of the maid from LAW to EUR CARDINAL,CARDINAL and the compensation for non - pecuniary damage from LAW to EUR CARDINAL,CARDINAL . The relevant part of the judgment on those points reads as follows :

“ ... with respect to damages related to the charges for the maid ... [ the plaintiff ] could not show the amount paid under that head . Also ... we consider that the award of LAW under that head is manifestly excessive .

Indeed , ( CARDINAL ) it has not been established that the plaintiff had lost her capacity to take care of domestic tasks , ( CARDINAL ) professional activity outside the home is CARDINAL thing while domestic work is another , and ( CARDINAL ) considering the age of her children , she [ the plaintiff ] probably only needed to take care of her husband ; this leads us to the conclusion that she did not need to hire a full - time maid ...

Lastly , as regards non - pecuniary damage , it is important to set an amount which compensates the plaintiff for her pain and loss of sensation and swelling in the vaginal area , and for the difficulty sitting and walking , which causes her distress and prevents her from going about her everyday life , forcing her to use sanitary towels on a DATE basis to conceal urinary and faecal incontinence and which has limited her sexual activity , making her feel diminished as a woman . In addition , there is no medical solution to her condition . All this has caused her severe depression , expressing itself in anxiety and somatic symptoms manifested in the difficulty she has sleeping , deep disgust and frustration with the situation in which she finds herself , which has turned her into a very unhappy person and which inhibits her from establishing relationships with others and has caused her to stop visiting family and friends , from going to the beach and theatre and which has given her suicidal thoughts .

It should be noted , however , that the plaintiff has been suffering from the gynaecological condition for a long time ( at least since DATE ) and that she had already undergone various kinds of treatment without any acceptable result and that it was that lack of results and the impossibility of curing the condition otherwise that was the motivation for surgery . She had already had unbearable pain and symptoms of depression before [ surgery ] . This means that the plaintiff ’s complaints are not new and that the surgical procedure only aggravated an already difficult situation , a fact which can not be ignored when setting the amount of compensation .

Additionally , it should not be forgotten that at the time of the operation the plaintiff was already DATE and had CARDINAL children , that is , an age when sex is not as important as in DATE , its significance diminishing with age .

Thus , having regard to all those aspects , we believe that the compensation awarded at first instance exceeded what could be considered reasonable and , as such , the plaintiff should be awarded EUR CARDINAL in compensation [ in respect of non - pecuniary damage ] . ”

On DATE the Attorney ORG attached to ORG applied to ORG to have the judgment of DATE declared null and void ( nulidade do acórdão ) in the part concerning the amount awarded for non - pecuniary damage . It argued that the reasoning in the judgment and the decision on the amount of compensation were contradictory . It further submitted that the compensation award should not have taken account of the applicant ’s symptoms before the medical intervention , as if only a worsening of those symptoms had been at stake . The relevant parts of the application read as follows :

III – In the instant case , we are dealing with surgical intervention which aimed exclusively at extracting the Bartholin glands .

During that surgical procedure the left pudendal nerve was partly damaged .

The pudendal nerve ... is a different organ from the CARDINAL which was the object of the surgical intervention .

Following the extraction of the glands the plaintiff suffered damage which was considered as being established and which specifically arose from the lesion in question .

IV- In view of the factual basis of the judgment and having regard to the fact that ‘ in the absence of unlikely and unexpected occurrences doctors would have cured the plaintiff ’s illness and she could have returned to her normal life’ , the decision setting the amount of compensation for non - pecuniary damage should not have taken account of the plaintiff ’s pain and symptoms of depression prior to the surgical intervention as if they had worsened .

That is because , according to the judgment , they would have disappeared once the Bartholin glands had been removed and the plaintiff ’s condition cured by surgery .

V – The reasoning in the judgment leads logically to a different decision .

That would be to set compensation for non - pecuniary damage on the basis of the fact that the plaintiff would have been cured if the pudendal nerve had not been injured . ”

On DATE the applicant applied to ORG to join the Attorney General ’s appeal of DATE , arguing that the judgment of CARDINAL DATE should be declared null and void in the part concerning the amount of non - pecuniary damage she had been awarded .

On DATE ORG dismissed the appeals by the Attorney ORG and the applicant and upheld its judgment of DATE . It considered that the causal link between the injury to the pudendal nerve and the alleged damage had been established . However , that injury had not been the only cause of damage to the applicant . In the opinion of the judges of ORG , the applicant ’s health problems prior to the operation , and her gynaecological and psychological symptoms in particular , could not be ignored and had been aggravated by the procedure .


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

George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku

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

On DATE ORG ( “ the Commission ” ) recognised , amongst others , the ORG inherited property rights over a plot of land measuring QUANTITY m and decided to restore the property . Since buildings had been constructed on the land by a third party , the Commission ruled that the third party should pay rent for the land or re - purchase the land pursuant to an agreement to be entered into between the parties . It also recognised the applicants’ right to first refusal of the buildings .

On DATE the applicants lodged a civil claim with ORG seeking the annulment of a DATE sale contract entered between the ORG and the third party over CARDINAL plots of lands measuring CARDINAL sq . m and QUANTITY m , which they claimed to own . The applicants also sought the payment of rent by the third party pursuant to the DATE LAW . In the same set of proceedings , the third party lodged a counter action requesting the partial annulment of the Commission decision .

On DATE ORG gave a final decision dismissing the applicants’ claims . It also dismissed their right to first refusal as regards the buildings on the plots of land which had been granted by the Commission . It decided that the applicants are entitled to compensation in respect of the plot of land measuring QUANTITY . m to be determined in accordance with the DATE LAW .

On DATE ORG , sitting as a full bench , found no violation of the applicants’ right to a fair trial .

To date , no compensation has been paid .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

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

The applicant was born in DATE and lives in GPE .

The applicant and ORG were in a relationship that started in DATE . On CARDINAL DATE their twin daughters were born ( A. and J. ) . Subsequently , in DATE , the applicant and PERSON separated .

On DATE the applicant lodged a motion with the GPE ORG ( Sąd Rejonowy ) for the establishment of contact and an interim contact order .

At the same time ORG lodged a motion with ORG alleging that the applicant had sexually abused PERSON and J. On DATE the prosecutor informed ORG about the allegations of sexual abuse . The court ordered a social enquiry report ( wywiad środowiskowy ) into the case , which was conducted on DATE . On DATE the prosecutor instituted a criminal investigation into the allegations of sexual abuse .

On DATE the GPE ORG issued an interim contact order . Under the terms of that order , the applicant was allowed to visit the children DATE TIME

On DATE the court stayed the custody proceedings as the criminal proceedings into the alleged sexual abuse were pending .

Meanwhile , on DATE ORG of its own motion instituted proceedings concerning the limitation of the applicant ’s custody rights .

During the course of the criminal proceedings , the prosecutor obtained CARDINAL expert reports and heard a number of witnesses . On DATE the prosecution discontinued the criminal proceedings into the allegations of sexual abuse on the grounds that there was not enough evidence that the alleged offences had been committed . The court - appointed expert established that A. and J. had not demonstrated the psychological symptoms of a sexually abused child . However , according to a private expert opinion provided by ORG , the facts of the case demonstrated that the children had been sexually abused . PERSON appealed against the decision to discontinue the proceedings . The prosecutor ’s decision was upheld by ORG .

On DATE the GPE ORG resumed the proceedings for the establishment of contact . At the same time it also resumed the proceedings for limitation of the applicant ’s custody rights .

On DATE ORG modified the interim contact order , allowing the applicant to see his daughters every DATE TIME in their home . The court also ordered ORG to set a new time in case a DATE visit was not possible . Both parties lodged interlocutory appeals . They were dismissed on DATE .

On DATE the applicant submitted a report to the court indicating that the mother had failed to comply with the terms of the access arrangements . The applicant ’s letter also contained a description of several visits that had taken place DATE and DATE .

On DATE the mother applied for a change to the access arrangements . She asked the court to order visits DATE for TIME .

On DATE the GPE ORG again modified the interim contact order , allowing the applicant to visit his children DATE QUANTITY in their home . The court also ordered that the parents and children be examined by experts in ORG ( GPE ośrodek diagnostyczno - konsultacyjny ) ( “ RODK ” ) . The court also ordered a further expert opinion .

The meeting scheduled with RODK for DATE did not take place because the daughters were ill . The next meeting took place on DATE . According to the expert opinion , the daughters were drawn into the GPE conflict by their mother . Both daughters sought contact with their father and wished to visit him in his home . The experts recommended therapy involving both parents and children .

The opinions of RODK and of the court ’s expert were submitted to the court on DATE and DATE . Following the change of the presiding judge , a hearing date was set for DATE .

Subsequently , the applicant applied for a change of the access arrangements . On DATE the court issued yet another interim contact order and ruled that the applicant could meet his children every other DATE and DATE TIME outside their home . The court considered that there was an emotional bond between the applicant and his daughters and in order to preserve it , it was important that the contact take place outside the children ’s home . The court further referred to the expert opinion of PERSON , who confirmed that PERSON and ORG had not demonstrated symptoms of being victims of sexual abuse . However , the mother refused to comply with this order and lodged an appeal . On DATE ORG upheld the first - instance decision .

Subsequently , ORG cancelled most of the visits on the grounds that the children had been away and from DATE she refused all visits .

On DATE PERSON applied for modification of the access arrangements . Her motion was dismissed by ORG on DATE .

During a hearing held on DATE , PERSON again applied for a change of access arrangements . She agreed to respect the interim order of DATE , however she made a request to the court that the contact should take place in the presence of the children ’s babysitter or a court - appointed guardian . During that hearing the court heard evidence from the expert PERSON , who confirmed that he did not consider that PERSON and J. demonstrated behaviour typical of children who had been sexually abused . He based his opinion on an analysis of the court files and a ORG recording of the children ’s interview .

On DATE the GPE ORG gave a final decision in the case . It ordered that the applicant could meet his children DATE and DATE TIME The visits would take place in the children ’s home with the mother present and in the applicant ’s home with the presence of a court - appointed guardian . The court considered that the applicant should be allowed to meet his daughters outside their home and without the mother ’s presence since the girls needed contact with their father . However , the court also stressed that , because the applicant ’s contact with his daughters had not been regular , he did not know much about them . The applicant appealed .

After DATE , the applicant was again able to exercise his right of contact with his daughters on a DATE basis , every DATE TIME at ORG ’s home .

On CARDINAL DATE ORG quashed ORG decision . The court held that the proceedings concerning the limitation of the applicant ’s custody rights should not have been joined with the access proceedings . In addition , due to different requirements concerning the composition of the court in both cases , ORG had sat in an incorrect formation and the proceedings were null and void .

At a hearing held on DATE both the applicant and PERSON testified . The applicant submitted that after their separation in DATE the contact with his children had been irregular . In DATE PERSON ( who is an actress ) had participated in a live TV show and the girls had stayed at the applicant ’s home TIME and had been collected by their mother on DATE TIME . Once the TV shows were finished at DATE , the applicant had wished to continue this arrangement , however PERSON disagreed . Consequently he lodged his application with ORG . He stressed that after the court had delivered its first interim order ( see paragraph CARDINAL above ) , many of the visits had not taken place since PERSON had been absent for DATE . The applicant further submitted that the interim order of DATE ( see paragraph CARDINAL above ) had never been enforced because whenever he had come to collect the children either PERSON had not been at home or she had refused to open the door . Lastly , the applicant confirmed that DATE and DATE he had not seen his children at all . Since DATE he had been visiting his daughters every Saturday for TIME at their home .

The children ’s mother ORG confirmed to ORG that DATE she had allowed the applicant to contact their daughters on many occasions . However , after she discovered that the applicant might have abused her daughter PERSON , she had prohibited all contact . The contact had restarted in DATE . She had never complied with the order of CARDINAL DATE since she had been concerned about her daughters’ wellbeing . She further informed the court that she was planning to move to GPE with the daughters and her new partner .

On DATE ORG gave its decision . The court ordered that the applicant could meet his children every other DATE and DATE TIME The visits would take place outside the children ’s home and without the presence of their mother . In addition , he could spend DATE with them DATE and GPE DATE and also parts of DATE . However , the applicant was only allowed to visit his daughters QUANTITY and they were not allowed to stay TIME at his home .

Both parties appealed .

The applicant instituted proceedings for enforcement of the interim contact orders and made several applications for fines to be imposed on ORG under LAW .

On DATE the applicant lodged a motion for the imposition of a fine on ORG for failure to comply with the access arrangements as specified in the interim contact order of DATE .

On DATE the GPE ORG ordered ORG to enforce the interim contact order of DATE within DATE , on pain of payment of a fine of MONEY ( ORG ) . The court established that initially the contact had taken place regularly , but this had been in accordance with the terms of the previous interim contact order of CARDINAL DATE ( every other DATE from TIME instead of every DATE from TIME ) . Such an arrangement had resulted from the interpretation given to ORG by the lawyers from ORG , who informed her that the new interim contact order would be effective only once it had become final . The court further observed that the contact had been regular ; most of the visits were shortened or cancelled by the applicant and not by the mother . Lastly , the court ordered the mother to comply with the interim order of DATE .

On DATE the applicant lodged a motion for imposition of a fine on PERSON He submitted that she had failed to comply with the order of CARDINAL DATE .

On DATE the GPE ORG discontinued the enforcement proceedings . The court held that the interim contact order had been modified in the meantime ( on DATE ) and there was therefore no need to deliver a decision in the present set of proceedings . The applicant appealed , asking the court to impose a fine on ORG His appeal was dismissed by ORG on DATE . The court repeated the reasons given by ORG and held that the interim order of DATE had been replaced by a new interim order of CARDINAL March DATE .

In DATE the applicant lodged a new motion for the imposition of a fine on A.W.

On DATE the court imposed a fine on ORG


Violation of Article 9 - Freedom of thought conscience and religion (Article 9 - Positive obligations;Article 9-1 - Freedom of conscience;Freedom of thought);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in DATE and lives in GPE .

On DATE the applicant , wishing to pursue a course of higher education , applied for and was granted permission to defer his enlistment for military service . On DATE he interrupted the deferral . As a result , he was required to report to the recruitment centre on DATE .

On DATE he applied for leave to perform alternative service on the grounds that he was a conscientious objector .

On DATE he appeared before the armed forces’ special committee ( established by CARDINAL of PERSON no . CARDINAL/CARDINAL ) to explain the nature of his conscientious objection . He stated that his objection was based on moral values stemming from the religious education he had received from his mother , a GPE ’s Witness , and on his own approach to life , involving the rejection of anything linked to war , violence or destruction in all its forms . The following is an extract from his interview :

“ Question : Tell us about your beliefs .

Answer : I grew up in a home where we were respectful of God . My mother is a GPE ’s Witness . My father is an atheist . I believe that since PERSON does not allow me to perform armed service in this world , I would be insulting him if I were to do so .

Question : So you are citing religious reasons to justify your refusal to perform armed service .

Answer : In substance , yes , but as I have not yet been baptised , I can not provide you with a certificate from ORG . That is why I am also relying on moral grounds .

Question : Why have you not yet been baptised ?

Answer : I still have some way to go . My behaviour is not yet completely suitable . I have decided to get baptised , but to do so I still need to make further progress and study the Scriptures and the Word of God in more detail .

Question : How have you come to the conclusion that God has nothing to do with war ?

Answer : I have not drawn that conclusion , but if I do enlist and serve worldly power , I will find myself on the wrong side when God decides to take action .

Question : Do you think it is feasible to eradicate violence from this world ?

Answer : It is hard to eradicate violence and armies by good will alone .

Question : Have you ever witnessed a violent incident , and if so , how did you react ?

Answer : Yes , I was assaulted . I tried to keep my response to a minimum by immobilising the attacker .

Question : By reacting in that way , were you not using violence ?

Answer : No , it was self - defence , and I do not think that self - defence involves the use of pure violence .

Question : So you acknowledge that there is a lawful authority and that some entities may potentially use force where necessary ?

Answer : Yes , I acknowledge lawful authority . The law of mankind exists until the divine law arrives . I believe that people should submit to lawful authority . But there is a difference between submitting to it and becoming part of it .

Question : Are you a member of a non - violent organisation ?

Answer : No ; for me , religious reasons take priority over reasons linked to morals ... ”

CARDINAL of the CARDINAL members of the special committee were present when it interviewed the applicant , namely CARDINAL officers of the armed forces and an adviser of ORG . The other CARDINAL members – CARDINAL university professors specialising in psychology , philosophy or social sciences – were unable to attend and were not replaced .

On DATE the special committee decided unanimously to propose that the applicant ’s application be rejected . It found that the religious and ethical arguments he had put forward for being exempted from armed service were unsubstantiated . Firstly , he was not a member of the GPE ’s Witnesses community , and secondly , he had not shown that he had taken part in non - violent movements ; on the contrary , he had stated that self - defence was not a form of violence and that people should submit to lawful authority .

On DATE the Minister of ORG rejected the application on the grounds proposed by the special committee .

On DATE the applicant applied to ORG for judicial review of the decision by the Minister of ORG .

Firstly , he challenged the composition of the special committee that had adjudicated on his case , and complained in particular that the CARDINAL university professors had been absent on that occasion . He submitted that as a result of their absence and the failure to replace them , the very nature of the committee had been distorted , since the military officers had formed a majority among the CARDINAL members present . In the applicant ’s view , the officers were inherently ill - disposed towards conscientious objectors and did not have the expertise in philosophy and psychology to make an objective assessment of the grounds put forward by them .

Secondly , the applicant argued that the Minister ’s decision had not contained sufficient reasons , seeing that ( a ) it had incorrectly mentioned that he had cited religious grounds without being an adherent of a religion ; and ( b ) the members of the committee had displayed prejudice by asserting that conscientious objectors had to be activists and anti - authority or to publicise their views , whereas the law did not lay down any such conditions .

Thirdly , the applicant complained of an infringement of his right to conscientious objection , arguing that the mere assertion of that right , coupled with his behaviour in practice ( not possessing a firearms licence or having any convictions for offences involving violence ) , was sufficient to justify his application for exemption from armed service .

In judgment no . CARDINAL/CARDINAL of DATE ORG dismissed the applicant ’s application .

In response to his first argument , it noted that the members of the committee sat on an equal basis and that the absence of CARDINAL of the members therefore had no effect on the quorum and did not distort the nature of the committee .

With regard to his second argument , ORG explained that , after examining whether the applicant was a follower of a religion that prohibited the use of force , whether he had taken part in non - violent movements and whether his philosophy of life prevented him from handling weapons , the committee had concluded that his conscientious objection was not accompanied by corresponding behaviour . It also dismissed his argument that opponents to the use of violence who did not publicly identify themselves as such were victims of discrimination , holding that the law required clear proof of their beliefs and that , moreover , the fact of not falling within the exceptions provided for by law was insufficient .

As to the third argument , ORG held that neither international instruments nor domestic legislation established a right to be exempted from armed service simply by citing conscientious objection . Such an exemption had to be subject to the conditions laid down by law , including the submission of sound and convincing reasons to justify it . It added that conscientious objection could not be established on the basis of a simple declaration , and nor could it be inferred from negative facts , such as not having any convictions for assault and not possessing weapons . On the contrary , it was necessary to provide evidence of active behaviour over a certain period , but the applicant had failed to do so .

On DATE the applicant was ordered to pay a fine of CARDINAL ( ORG ) for insubordination ; with interest for late payment , the amount was increased to LAW . On DATE the applicant applied to ORG to have the fine set aside . The case is still pending , but the authorities have seized a sum from his bank account .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

On DATE the applicant rented a municipally - owned shop in the town of Primorsko . The shop consisted of a metal structure built on a concrete foundation on a municipally - owned plot of land .

On DATE the applicant asked ORG to be allowed to purchase the shop under the preferential privatisation procedure for tenants of ORG and municipally - owned property , as provided for in section CARDINAL(CARDINAL ) of ORG ( ORG за преобразуване и приватизация на държавни и общински предприятия – hereinafter “ the LAW ” ) . She also expressed the wish to buy the plot of land on which the shop was built . As the municipal council did not reply , the applicant applied for judicial review of the municipality ’s tacit refusal to sell the shop to her . The first - instance court rejected that application on DATE .

In a final judgment of CARDINAL DATE , rectified for errors in DATE , ORG quashed the lower court ’s judgment , finding that it had not dealt with all the evidence submitted by the applicant . The last - instance court then observed that the parties were in agreement that , at the time of her privatisation request , the applicant had had a valid rent contract for the shop with the municipal authorities . It further found , on the basis of the submitted evidence , that the shop constituted a separate property unit measuring QUANTITY and that all statutory conditions for privatising the shop under the preferential privatisation procedure had been present . As to the land on which the shop was built , the court observed that it was not part of the rental contract and thus its inclusion in the privatisation of the shop was a matter of discretion for the municipal authorities . The court referred the case back to ORG with instructions for it to open a privatisation procedure by offering to sell the shop to the applicant .

In DATE the applicant again asked ORG to examine her privatisation proposal . As she did not receive a reply , she applied for judicial review of its tacit refusal to sell the shop to her .

In a final judgment of CARDINAL DATE , ORG held that the applicant met the conditions for the privatisation of the shop . The court specified that , following changes to the country ’s administrative map , the privatisation decision had to be taken by ORG and it referred the case back to it .

On DATE and later again on DATE , ORG explicitly refused to sell the shop to the applicant . She brought judicial review proceedings in respect of those refusals .

In a final judgment of DATE ORG revoked the refusals as null and void , finding that the municipal council had been obliged to sell the shop to the applicant . The court briefly noted that , whatever the circumstances , no proof had been presented to it by the municipal council in support of its objection that the shop no longer physically existed .

NORP In the meantime , in DATE and DATE , the municipal company managing the shop informed the applicant that she had no lease contract for DATE and invited her to vacate the LOC . On an unknown date in DATE , that company lodged a rei vindicatio claim against the applicant . In a final judgment of DATE , ORG dismissed the company ’s claim , holding that the applicant ’s lease contract could not be terminated pending the privatisation procedure pursued by her .

On DATE the mayor of Primorsko ( hereinafter “ the mayor ” ) ordered the municipal company to demolish the shop . Following a complaint lodged by the applicant with the Governor of GPE , the latter revoked the mayor ’s order on DATE , finding that the mayor had not been competent to dispose of municipal property without a prior decision of the municipal council to that effect . The Governor further stated that , pending the privatisation procedure , the lease contract with the applicant could not be terminated .

On an unknown date in DATE , the municipal company sold the shop to a private company . On CARDINAL DATE the buyer , assisted by municipal employees , prevented the applicant from entering the shop . Following a complaint lodged by the applicant with the prosecutor , on DATE the latter established that the buyer had acted in an abusive manner and ordered the police to assist the applicant in regaining possession of the shop . According to the applicant , after she had re - entered the property she discovered that the electricity supply had been cut off . It appears that she ran the shop without electricity until an unspecified date in DATE , when the electricity supply was restored .

In DATE the buyer brought a rei vindicatio claim in court against the applicant . In a final judgment of DATE , ORG dismissed that claim , confirming the reasoning in the lower court ’s judgment . The last - instance court found in particular that the buyer had not acquired ownership of the shop and that , in any event , the applicant was protected by LAW in that she could not be evicted from the shop pending the examination of her privatisation proposal .

Primorsko Municipal Council considered that the shop was dilapidated and unsafe on account of the corrosion of its metal structure and ordered its sale for demolition . At some point in DATE the municipal council sold the shop to an individual and on DATE the mayor ordered the new buyer to demolish the shop . Even though on DATE , DATE , the mayor revoked his own order , the buyer dismantled the shop on DATE with the assistance of the police . The applicant was informed of the demolition by an acquaintance who happened to pass by the shop on DATE it was pulled down . She had not known about the sale of the shop before it was demolished .

The parties dispute what happened to the applicant ’s goods and belongings . According to the Government , they were listed and taken for safekeeping . According to the applicant , they were destroyed together with the shop .

In DATE the applicant requested that criminal proceedings be opened against the mayor and the chairperson of ORG for breach of duties and obstruction of the enforcement of a final court judgment . In a decision of DATE the prosecutor refused her request . He found that it was impossible to open criminal proceedings as the refusals to privatise the shop had been issued by the municipal council , a collective body , whereas criminal responsibility was personal .

On DATE and CARDINAL DATE respectively the applicant again requested ORG to examine her privatisation proposal . In a letter of DATE the council informed her that her case was factually and legally complex , and that an ad hoc commission would be formed to propose a solution . On DATE the ad hoc commission proposed that an enquiry be made with ORG ( the ORG body in charge of the privatisation of ORG - owned property ) . In CARDINAL letters dated DATE , sent respectively to the applicant and the municipality , ORG observed that the question about the demolition of the shop had not been raised in the proceedings before the courts . The Agency nonetheless held that the municipality was obliged to comply with court judgments .

NORP In DATE , the applicant lodged a claim with ORG for damages against the Primorsko municipal authorities for their failure to implement the final judgments in her favour . The claim was lodged under the ORG and ORG DATE ( “ the ORG ” ) . The court split the claim to be examined into CARDINAL separate sets of proceedings – the first one against the municipality ( община ) and the second one against the municipal council ( общински съвет ) .

In the first set of proceedings , in which she challenged the mayor ’s order of DATE that the shop be demolished ( see paragraph CARDINAL above ) , the applicant sought damages for loss of opportunity ( пропуснати ползи ) . ORG found that the applicant had no standing to pursue this claim because she had not been the addressee of the mayor ’s order . Although the shop had been demolished shortly after the order had been issued , that had been irrelevant in respect of the legal proceedings brought by the applicant , given that she had sought compensation for damage specifically stemming from the mayor ’s order . The court dismissed the applicant ’s claim and terminated the proceedings . That ruling was upheld by ORG in a final decision of CARDINAL DATE .

In the second set of proceedings the applicant sought both pecuniary and non - pecuniary damages stemming from the failure of the municipal council to decide on her privatisation request by implementing the final court judgments ordering it to offer to sell the shop to her .

She specified that she sought pecuniary damages in respect of : the rent she had had to pay DATE , when her request to privatise the shop should have been granted , and DATE , when the shop had been demolished ; those of her belongings that had been destroyed together with the shop ; the loss of income resulting from the impossibility of collecting rent from a company with which she had concluded a contract on DATE in respect of part of the shop ; and the impossibility of increasing her investment by buying the plot on which the shop stood and by building upon it .

NORP In addition , the applicant sought non - pecuniary damages in respect of the intense stress and emotional suffering that had led her to fall into a lasting and severe depression , which had been the result of the shop ’s demolition and of the failure of the municipal council to sell it to her , despite the final judgments . She provided medical records in respect of her failing health and the related hospital treatment she had undergone .

Examining the applicant ’s claim , ORG considered that she was complaining of the municipal council ’s tacit refusal to reply to her request of DATE to buy the shop . On DATE the court found that both claims , for pecuniary and non - pecuniary damages , were admissible .

As to the merits , the court held that the claim for pecuniary damages was unjustified and also that there was no causal link between the municipal council ’s refusal to privatise the shop and the applicant ’s claims for loss of financial opportunity as a result of the impossibility of buying the land and building on it .

As regards the applicant ’s claim for non - pecuniary damages , the court accepted it as justified on the basis of the evidence submitted during the proceedings ( see paragraph CARDINAL above ) . In particular it found that it had been demonstrated that the applicant had suffered significantly as a result of the municipal council ’s refusal to open a privatisation procedure vis - à - vis her . The court held that the applicant ’s suffering had been caused by the municipal council ’s tacit refusal to act upon the final court judgment of DATE . The applicant had succumbed to depression , which had manifested itself in acute feelings of hopelessness and a perception that any future efforts would be futile , as well as in feelings of helplessness , insomnia , a disturbance of memory functions , and attention disorder . Those conditions had further led to a serious deterioration in the applicant ’s family environment , given that she had directed all her frustration and negative emotions towards her young daughter . The court awarded the applicant the entirety of her claim , namely MONEY ( ORG ) , plus interest , as well about ORG CARDINAL,CARDINAL for costs and expenses . It further declared null and void the municipality ’s tacit refusal to act upon her request of DATE , and returned the case to it for it to take the appropriate action .

After an appeal lodged by the municipal council , ORG found that the lower court had wrongly concluded that the municipal council ’s silence amounted to a new tacit refusal to privatise the shop . The applicant was seeking damages stemming from the absence of a privatisation procedure launched by the municipality in respect of the shop . The administrative procedure concerning the privatisation of the shop had begun with the applicant ’s initial request of DATE ( see paragraph CARDINAL above ) and had not been completed . The applicant ’s subsequent requests to the same effect had not created a new obligation on the part of the municipality concerning the privatisation of the same shop .

The last - instance court further held that , as regards the first final court decision in the applicant ’s favour ( that of CARDINAL DATE ) it had not created obligations on the part of ORG , given that the respondent party required to act under that decision had been the PERSON municipality ( see paragraph CARDINAL above ) . ORG had only been expected to act in respect of the second final judgment on that question ( see paragraph CARDINAL above ) .

As regards the municipal authorities’ explicit written refusal of CARDINAL DATE to open a privatisation procedure ( see paragraph QUANTITY above ) , the court noted that that refusal had been declared null and void in DATE by another of its benches for being contrary to the first final court decision of DATE ( see paragraph CARDINAL above ) .

The last - instance court conceded that , objectively , the declaration of the municipal council ’s refusal as null and void corresponded to CARDINAL of the statutory prerequisites for the pecuniary liability of the council . However , the remaining conditions for the council being held so liable had not been met . In particular , the court held DATE without elaborating further – that the applicant had failed to prove both the existence of actual damage and the causal link of any such damage to the municipal council ’s refusal to privatise the shop by offering to sell it to her .

Furthermore , the applicant ’s claim in respect of the council ’s refusal of CARDINAL DATE had been inadmissible on account of the expiry of the DATE limitation period , as calculated as of the date of that refusal . Moreover , the council tacit refusal to act upon DATE court decision was of no consequence , given that the shop had no longer physically existed at that time .

Importantly , the obligation on the municipal authorities to privatise property under LAW existed only vis - à - vis individuals who met the conditions stipulated under LAW . The applicant , however , was not among those persons . The reason was that she had not had a valid contract with the municipality at any of the times when she had requested the latter to sell the shop to her , because the contract concluded in DATE had expired prior to those times .

Moreover , as a matter of principle , the liability of a municipality , or of the ORG for that matter , under the ORG did not include loss of opportunity but only already incurred losses . Consequently , the applicant could not claim loss of opportunity in these proceedings .

In respect of the applicant ’s claim for non - pecuniary damages , the court emphasised that these could only be incurred by an individual and not by an enterprise . It was true that in legal terms the sole trader was a physical , as opposed to a legal , person ; however , the damage suffered by the applicant stemmed specifically from the economic activity carried out by her in her capacity as a sole trader . Consequently , the applicant as an individual was not entitled to compensation for damage that could have been sustained in the context of the economic activity of the trader . In view of the above , the lower court had wrongly granted the applicant ’s claim for non - pecuniary damages .

On the basis of the above , ORG quashed the lower court ’s judgment and dismissed the applicant ’s claims in a final judgment on DATE . It also held that the applicant had to pay to the municipal council about ORG CARDINAL,CARDINAL for legal costs and expenses .

On DATE the applicant asked ORG to rectify its judgment of DATE in the part in which it had ordered her to pay the legal costs claimed by the other party ( the municipal council ) . She pointed out that the municipal council had not presented proof that it had indeed incurred those expenses and that , in any event , the council should not be allowed to benefit from its unlawful failure to implement the judgments in her favour . The applicant sought , alternatively , a reduction in those costs .

ORG found her request admissible but rejected it as unjustified ( неоснователна ) in a final decision of DATE . On DATE the bailiff invited the applicant to voluntarily comply with the final judgment of DATE , indicating that failure to pay the sum due would result in the forced sale of items of the applicant ’s personal movable and immovable property .


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

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant was born in DATE and lives in PERSON .

On DATE at a village meeting in GPE , CARDINAL residents voted in favour of holding the previous local mayor ( sołtys ) PERSON to account for his management of public funds . They appointed the applicant to be in charge of further action in that regard .

On DATE the applicant sent a document to the mayor of ORG FAC the district mayor ” ) entitled “ Petition ” ( Wniosek - “ the document ” ) , which was signed by the applicant and CARDINAL other residents of GPE who confirmed their agreement with the petition .

The text read as follows :

“ On DATE in the village of GPE a legally valid village meeting took place , during which residents of the village decided by a large majority to appoint me to be in charge of investigating the concerns detailed below . It took me over DATE to figure out a solution to this problem . I came to the realisation that the best way to approach [ it ] would be to file a request with the Mayor of the District in order to clarify the issue , even though I had already informed the current local mayor and Mayor of ORG ( wójt ) of the allegations .

The facts and circumstances are as follows .

The local mayor of GPE , PERSON , whose term in office was concluded on the election of the current local mayor , PERSON , received grants for the benefit of the village from the LOC and accepted payments from the lease of the village shop .

During his term in office , he never asked the residents or the local council for what purpose the money should be used . He managed the funds arbitrarily and , I think , used them for building works , namely the renovation of the community hall ( świetlica – dom ludowy ) .

However , he never shared the accounts with the residents of the village ; in particular how much money there was and what it was spent on .

There are many rumours going around the village , which out of respect for your office I will not be repeating . I will only add CARDINAL more thing , namely that the community hall was not accessible to the residents and their children for [ DATE .

I consider , therefore , that the petition and the request are both valid .

[ signatures of CARDINAL residents ]

I , other signatories of this request for a petition and all the residents believe that , thanks to the Mayor of the District , they will receive a full and plausible explanation of the facts described above . ”

The document was sent to the district mayor before local elections which took place on DATE ( wybory samorządowe ) . Both the applicant and PERSON were candidates in those elections but neither of them became a local councillor .

On an unspecified date ORG analysed the document . It decided , as summarised by the domestic court , “ that there were no grounds to allege that somebody had mismanaged the funds . ”

On DATE PERSON lodged a civil action with ORG ( “ the ORG ” ) against the applicant for infringement of his personal rights . He requested that the court order the applicant to publish an apology in the local DATE newspaper and pay MONEY ( ORG ) to ORG ( ORG – “ the ORG ” ) .

NORP On DATE ORG decided that the applicant had violated PERSON ’s personal rights and ordered that he send a statement by post to the district mayor , ORG ( PERSON w PERSON ) and PERSON stating :

“ I , PERSON , apologise to [ Z.M. ] for violating his reputation by forwarding to the Mayor of LOC a document on [ DATE entitled “ Petition ” , which contained false allegations that the local mayor , PERSON , arbitrarily managed funds for the benefit of the village ; that he took , as local mayor , the payments under the lease of the village shop ; and a statement that the community hall had not been available to the residents for the past [ DATE . ”

In the course of the proceedings the court examined a statement made at the village meeting on DATE at which CARDINAL residents of GPE confirmed that they had all been instigators of the enquiry in DATE which had resulted in the applicant ’s document to the district mayor . The residents explained that their intention had been to clarify the questions raised , given PERSON ’s involvement in matters such as the community hall refurbishment and running of the ORG .

The court considered that the applicant ’s letter from DATE contained false information , which supported the finding of a violation of ORG personal rights . This included statements claiming that PERSON , acting in his capacity as local mayor , had taken rent from the lease of the village shop . The domestic court established that even if PERSON had taken any payments , he had done so as chairman of the ORG . The court also found that the village shop was located in the building owned by the ORG , which also hosted the community hall , and that the rent under the lease was paid to the ORG through an intermediary , its treasurer . PERSON , as chairman of the ORG , merely set the amount of rent to be paid DATE . The court also found that during PERSON ’s time in office , the community hall had been open for public use ; in that respect it dismissed the testimony of some witnesses stating the opposite . At the time , there were also building works being carried out in the same building . It was established that nobody , and this included PERSON , had received any money in cash for the work . It was also established that the village had not received any funds directly from the commune . The commune had paid the costs of the renovations of the ORG ’s building .

The court considered that since the applicant had failed to prove the veracity of his accusations and , given their adverse effect , this amounted to a violation of PERSON ’s personal rights .

On DATE the applicant lodged an appeal with ORG , alleging that the court had not considered that the relevant text had been communicated in the public interest .

On DATE the ORG dismissed the applicant ’s appeal , emphasising that the publishing of false information would result in a violation of a person ’s personal rights . It rejected the applicant ’s claim that the petition was merely an expression of doubt concerning the lawfulness of PERSON ’s actions when he was local mayor . The court considered that the timing of the applicant ’s actions proved that they had not served the public interest and had been motivated by his desire to win the elections . He had raised his concerns DATE after DATE PERSON ’s mandate during the electoral campaign which PERSON had lost . The applicant received a copy of the judgment on DATE .

On DATE ORG issued a writ of enforcement in respect of its final judgment of CARDINAL DATE . The applicant instituted proceedings to have the enforcement order quashed on the grounds that he had a case pending before the ORG . On DATE the Piotrków Trybunalski Regional Court dismissed his claim . On DATE the applicant lodged an appeal against the latter judgment . On DATE it was dismissed by ORG .

On DATE the applicant was elected mayor of GPE .


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged an application with ORG ( PERSON za restituciju nepokretnosti ) in Berane requesting restitution of the property expropriated from his father in DATE .

Following the adoption of a new LAW ( Zakon o povraćaju oduzetih imovinskih prava i obeštećenju ) , on DATE , the applicant submitted another application to the newly established ORG in Berane ( PERSON za povraćaj oduzetih imovinskih prava i obeštećenja ) requesting compensation .

In DATE all the Commissions for Restitution and Compensation were consolidated into CARDINAL regional Commissions in Bar , PERSON and GPE . Due to the location of the expropriated property , the applicant ’s request was assigned to the Commission with its seat in PERSON ( hereinafter “ the Commission ” ) .

On DATE the applicant sought opinion from an independent expert regarding the expropriated property .

On DATE the ORG also requested an assessment report on the expropriated property . The report was submitted to the ORG on DATE .

Due to Commission ’s inactivity , on DATE the applicant lodged an appeal ( žalba PERSON ćutanja uprave ) with ORG ( ORG za žalbe u postupku za povraćaj imovinskog prava ili obeštećenja ) .

On DATE and DATE the applicant filed complaints with ORG and ORG , respectively , about ORG inactivity .

On DATE ORG ordered the ORG to decide on the applicant ’s request within DATE .

On DATE the Commission ruled against the applicant .

On DATE ORG upheld that decision on appeal .

The applicant filed and action with ORG seeking redress .

On DATE ORG rejected the applicant ’s claim as unfounded . This decision was served on the applicant on DATE .

On DATE the applicant lodged a constitutional appeal . On DATE ORG rejected his appeal for failure to make proper use of other available domestic remedies . According to ORG , the applicant should first have made use of an additional request for the judicial review of his case ( zahtjev za vanredno preispitivanje sudske odluke ) .


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)

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

The applicant was born in DATE and lives in GPE . He is a musician and an artistic producer .

In DATE the applicant published a book entitled “ Backstage ” ( PERSON ) . A number of passages in the book had to be redacted because of a series of urgent judicial proceedings which had been brought against him .

On DATE a tobacco company , ORG ( GPE ) ORG ( “ the company ” ) , launched an advertisement showing CARDINAL packets of Lucky Strike cigarettes in the foreground . There was a lit cigarette on top of CARDINAL of the packets , with a thick black marker pen leaning against the other packet . The following text appeared at the top of the advertisement in large lettering :

“ Look , dear PERSON , how easy it is to write super books . ” ( “ PERSON mal , lieber PERSON , so einfach schreibt man super ORG . ” )

The words “ dear ” ( “ lieber ” ) , “ easy ” ( “ einfach ” ) and “ super ” ( “ super ” ) were blacked out but were still legible . At the bottom of the advertisement was the phrase “ Lucky Strike . Nothing else . ” ( “ Lucky Strike . Sonst nichts . ” )

The full - page advertisement was published in the CARDINAL DATE issues of the DATE magazine PERSON and the popular national DATE newspaper ORG , with a circulation of CARDINAL and CARDINAL respectively . It was part of an advertising campaign run by the company for the ORG brand ; the campaign , launched in DATE , ran until DATE with CARDINAL variants , showing CARDINAL or more packets of cigarettes with a humorous slogan which often referred to a current event and the individual involved in that event .

At the applicant ’s request the company gave a written undertaking to refrain from further publication of the advertisement in question with its heading referring to him , but refused to pay him the sum of CARDINAL ( ORG ) which he had demanded for a “ notional licence ” ( fiktive ORG ) .

The applicant applied to ORG for an order requiring the company to pay him ORG CARDINAL for a notional licence .

On DATE ORG allowed the applicant ’s application . It first of all noted that the use of the forename PERSON in the impugned advertisement was clearly a reference to the applicant ’s name . It further noted that although the forename PERSON was very common and several well - known public figures shared it , the advertisement was obviously referring to the applicant in view of its other component elements . ORG observed that the company ’s advertising campaign regularly alluded to current events and the persons involved in them . It noted that there was no indication that at the time the advertisement had been published , another individual also called PERSON , like the applicant , had published a book that had had certain passages censored following court injunctions , or that any other book had prompted as much public debate upon publication as the applicant ’s book had .

ORG added that the company was entitled to rely on the right to freedom of expression as safeguarded by LAW ( see “ Relevant domestic law and practice ” below ) , a right that also extended to commercial advertising provided that its content contributed to shaping public opinion . In the court ’s view , that applied to the impugned advertisement , which had commented humorously on the publication of the applicant ’s book and had apparently advised him on how to write “ super books ” by striking through certain passages before publication . Given that the company had in this way called for the contents of a book to be properly checked prior to publication , the advertisement had , in ORG view , raised a matter of public interest .

ORG then pointed out that both the right to freedom of expression and the right to protection of personality rights were protected under LAW and that , in principle , they deserved equal respect . Where a person was used for advertising purposes without his or her consent , the right to protection of personality rights prevailed as a general rule . As everyone had the right to decide whether or not to allow his or her name to be used for advertising purposes , personality rights protected individuals against the unlawful use by third parties of their names in the context of advertising . Inasmuch as the company had argued that the applicant had himself caused the event to which the advertisement referred , that fact was not capable of depriving the applicant of protection , but it could result in a lesser degree of interference and a higher level of protection of freedom of expression .

ORG held that when balancing the competing interests in the case , more weight was to be attached to the protection of the applicant ’s personality rights than to the company ’s right to freedom of expression . It noted in particular that the advertisement had primarily pursued commercial aims , that is to say increasing the sales of a cigarette brand , and that it had above all been intended to entertain the public , without providing any real contribution to shaping public opinion . Lastly , it noted that neither the content of the advertisement ( ORG ) nor the applicant himself had any direct link with the product advertised . It concluded that the applicant was entitled to claim compensation for exploitation of his fame for commercial purposes , having regard , inter alia , to the judicial decisions given in cases concerning a tennis player ( PERSON ) and a politician ( PERSON ) .

ORG further held that the damage suffered by the applicant corresponded to what the company and the applicant would reasonably have agreed on as the cost of the licence if a contract had been signed . The purpose of a notional licence was to ensure that anyone using someone else ’s personality without permission would not be in a more advantageous position than if he or she had obtained the person ’s consent . ORG explained that the cost of such a licence should be freely determined on the basis of all the relevant circumstances , including the following criteria : the person ’s fame and brand image ( Imagewert ) , the attention attracted by the advertisement , the extent of its distribution and the role assigned to the person in the advertisement . Applying those criteria and taking account of the amounts awarded in similar cases concerning persons as well known as the applicant had been at the time of publication of the advertisement relating to them ( see paragraph CARDINAL above ) , ORG considered it appropriate to award the applicant LAW . To that end it took into consideration the fact that the advertisement mocking the applicant had taken up a full page in publications such as ORG magazine , and had been seen by CARDINAL readers . However , it also had regard to the fact that the advertisement had included neither a picture of the applicant nor his surname , so that a number of people would have been unable to make a connection between the advertisement and the applicant .

On DATE ORG upheld the findings of ORG as to the existence of unlawful interference and the outcome of the balancing exercise between the competing rights , while pointing out that the fact that the company had used the applicant ’s forename for commercial purposes , in order to increase sales of its cigarettes , meant that the protection of the applicant ’s personality rights prevailed from the outset . However , it reduced the fee to be paid for the notional licence in accordance with the principle of unjust enrichment to ORG CARDINAL . The advertisement had not been designed to debase the applicant and , on account of its humorous approach had not had any negative impact on him . Moreover , in publishing his book the applicant had deliberately sought the limelight . ORG concluded that there had been an unlawful interference with the applicant ’s right to protection of his personality rights , adding that no other conclusion could be reached from the standpoint of the right to freedom of expression in artistic matters , on which the company had relied .

As regards pecuniary damage , ORG noted that the peculiar aspect of the case was that the impugned advertisement had , in a humorous manner , used only part of the applicant ’s name without his consent , and that it had only been published once in CARDINAL periodicals . Endorsing the findings of the expert whom it had commissioned to assess the damage suffered by the applicant , it deemed it appropriate to set the amount of damages at ORG CARDINAL .

ORG did not grant leave to appeal on points of law , holding that the case was not of fundamental importance , given that a decision was not required from ORG in the interests of either the development of the law or consistency in its application .

The company applied for leave to appeal on points of law . On DATE ORG granted the application .

In a judgment of DATE ( no . I ZR CARDINAL ) ORG quashed ORG judgment . It held that the applicant ’s claim was ill - founded because the company had not unlawfully interfered with his right to protection of personality rights or his right to his name , given that the use of his name in the impugned advertisement was covered by freedom of expression as guaranteed by LAW . While upholding the findings of ORG as regards the existence of an interference and the possibility of granting a notional licence in accordance with the principle of unjust enrichment , ORG held that ORG had not had sufficient regard to the fact that the pecuniary components of the right to protection of personality rights and the right to one ’s name were only protected by ordinary law , whereas freedom of expression enjoyed protection under constitutional law .

ORG explained at the outset that the case before it related solely to interference with the pecuniary components of the rights relied upon , since no infringement of the non - pecuniary components of those rights had been alleged . It pointed out that the rights to protection of personality rights were among the fundamental rights safeguarded by LAW to the extent that they protected non - pecuniary interests , but that the pecuniary components were only protected by civil law and therefore did not prevail over freedom of expression . ORG also observed that the protection conferred by LAW also covered advertising whose content contributed to shaping public opinion , while specifying that that was not only the case where the advertisement referred to a political or historical event , but also where it dealt with questions of general interest . Furthermore , reports with an entertainment purpose could also play a role in shaping public opinion , or indeed , in certain circumstances , could stimulate or influence the shaping of public opinion more effectively than strictly factual information .

ORG noted that the impugned advertisement referred humorously to the fact that the applicant had published a book . It considered that even though the company had merely referred to that event as part of an advertising campaign , it could still rely upon the specific protection of freedom of expression . It held that the fact that the advertisement – by using the applicant ’s forename and alluding to the book which he had published – had been mainly intended to increase sales of a cigarette brand by capturing the attention of the general public did not mean , as ORG had maintained , that the right to protection of personality rights prevailed in general .

ORG continued as follows :

“ In weighing up the competing interests ORG failed to take adequate account of the fact that the only issue at stake in this case was the protection of the pecuniary components of the right to protection of personality rights , such protection being based solely on civil law and not constitutional law . In the case of interference with the pecuniary components of the right to protection of personality rights because a well - known person ’s name has been used in an advertisement without his consent , it can not simply ( ohne weiteres ) be maintained that the person ’s right to protection of his personality rights will always prevail over the advertiser ’s right to freedom of expression . On the contrary , it might be appropriate to tolerate an interference with protection of personality rights resulting from reference to a person ’s name if , on the one hand , the advertisement alludes in a derisive , satirical manner to an event involving the person and forming the subject of public debate and if , on the other hand , it does not exploit the person ’s brand image ( Imagewert ) or advertising value ( PERSON ) by using his name , and if it does not give the impression that the person identifies with the product advertised or advocates its use ( reference to ORG judgment of DATE , no . I ZR CARDINAL ) . ”

ORG held that the impugned advertisement had not given such an impression . It had concerned a subject of public interest in so far as it referred in a humorous fashion to the events surrounding the publication of the applicant ’s book , shortly after that event and in the context of the ensuing debate in the media . The advertisement had therefore been part of the ongoing public debate on the circumstances surrounding the applicant ’s publication of his book . ORG emphasised that above and beyond the derisive , satirical allusion to that event , which was already known to the public , the advertisement had been devoid of any degrading or negative content in relation to the applicant . Furthermore , given the absence of any suggestion that the applicant identified in any way with the product advertised , there were no grounds for considering that the advertisement was disparaging towards the applicant simply because it was promoting a brand of cigarettes .

ORG agreed , moreover , with ORG that the applicant had sought public attention for his own publicity needs . It found that the applicant ’s interest in not being mentioned in the advertisement without his consent carried less weight than the tobacco company ’s freedom of expression . There were therefore no grounds for examining whether the company could also have relied on the right to freedom of expression in the artistic field .

ORG concluded that in the absence of a violation of the pecuniary components of his right to protection of his personality rights , the applicant could not claim an entitlement to a notional licence .

On DATE the ORG declined to accept for adjudication a constitutional appeal by the applicant ( no . CARDINAL BvR CARDINAL/CARDINAL ) , adding that no reasons would be given for its decision . The applicant received the decision on DATE .


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

During DATE and DATE NORP paramilitary forces gained control of CARDINAL of the territory of GPE and proclaimed the so - called “ GPE of LOC ” ( PERSON autonomna oblast LOC , hereinafter the “ LOC ” ) . Part of the PERSON family – father GPE , mother PERSON , daughter PERSON ( the third applicant ) and sons PERSON ( the first applicant ) , PERSON ( the eighth applicant ) and ORG ( the ninth applicant ) – lived in PERSON , a village situated in the LOC . At the beginning of DATE the NORP authorities announced a campaign of military operation with the aim of regaining control over the LOC . The operation was codenamed Storm and lasted DATE . Before that action , the vast majority of the population of the LOC had fled GPE , initially for GPE , but later many of them went to live in GPE . Some returned to GPE after the war . The number of people who fled is estimated at CARDINAL .

On DATE , one PERSON submitted to ORG ( ORG odvjetništvo PERSON , hereinafter the “ SAO ” ) a list of persons killed during and after Operation Storm . PERSON , the applicants’ father , was on the list and next to his name was a note that he had been shot in the head and a leg on DATE by members of ORG “ LOC brigade . On DATE the ORG forwarded that list to ORG .

On DATE the Gvozd police photographed the site of PERSON grave .

On DATE the Gvozd police interviewed PERSON , the third applicant , who said that her father had been killed on DATE in GPE .

On an unspecified date in DATE the body of PERSON was exhumed and a post mortem was carried out in ORG on DATE . The cause of death was not established and the only injury noted was a broken collar bone .

On DATE the Gvozd police again interviewed PERSON . She said that of her family members , only she and her father had remained in PERSON after DATE . On DATE at TIME she had been sitting with her father GPE in front of their house , situated on a hill in GPE , QUANTITY away from the unpaved main road . A military transport vehicle had appeared on that road , coming from the direction of the village of LOC . When it drew level with their house the vehicle had stopped and CARDINAL soldiers , dressed in camouflage uniforms , had got out and started to walk towards her and her father . Her father had then said that he did not wish to wait for the soldiers but would run into the woods . When he started to run , she had followed him and then heard CARDINAL gunshots . She had hidden in the grass and had seen her father shot twice , in the chest and the leg . He had died soon afterwards . The soldiers had returned to the vehicle and continued in the direction of PERSON . The soldiers who had killed her father had been from the “ ORG ” brigade . She had hidden in the woods for DATE while her father lay dead in the grass . When she returned from the woods she had reported the matter to ORG and had been given food by some soldiers , who had also buried her father .

On DATE the Gvozd police interviewed PERSON , who had no relevant information to give them about the circumstances in which her husband had been killed .

NORP On DATE the GPE - moslavačka ORG ( FAC uprava sisačko - moslavačka ) sent a report to the GPE State Attorney ( PERSON državni odvjetnik ORG ) stating that PERSON had alleged that on DATE her father PERSON had been killed by NORP soldiers , members of the “ NORP ” brigade .

On DATE the State Attorney ’s ORG issued a document concerning enquiries into the killings of civilians DATE . The document was addressed to GPE Attorney ’s Offices , which were instructed to examine all the information collected to date on the killings of civilians during that period and to concentrate their activities on identifying the perpetrators and gathering the relevant evidence in order to instigate criminal proceedings .

On DATE the applicants and their mother lodged a criminal complaint with the ORG in connection with the killing of PERSON , classifying the offence as a war crime against a civilian and alleging that the victim had been of NORP ethnic origin , unarmed and never involved in any military activity during the war in GPE .

On DATE the ORG referred the case to the GPE State Attorney ’s ORG , requesting an investigation into the killing of PERSON .

DATE and DATE the State Attorney ’s ORG asked the police about the progress of the investigation on several occasions . Each time the police replied that there had been no progress .

On an unspecified date the police asked ORG ( Uprava Vojne Policije , hereinafter the “ MOP ” ) for information about the killing of PERSON . On DATE the ORG answered that they had no relevant information . This was forwarded to the NORP State Attorney ’s ORG on CARDINAL DATE .

On several occasions DATE the State Attorney ’s ORG asked the police about the progress of the investigation . Each time the police replied that there had been no progress .

On DATE the State Attorney ’s ORG issued an instruction for implementation of LAW and LAW to GPE Attorney ’s Offices , in which they indicated that an inspection of the work of these Offices had highlighted CARDINAL main problems : the possible partiality of persons involved in the pending proceedings as a result of the ethnicity of the victims or the perpetrators ; and the problem of trials in absentia . The instruction advocated the impartial investigation of all war crimes , irrespective of the ethnicity of those involved , whether victims or perpetrators , and stressed the duties of those working for the ORG Attorney in that respect .

On DATE the NORP State Attorney ’s ORG asked ORG of ORG to hear evidence from PERSON . This request was complied with on DATE , when an investigating judge of that court heard evidence from her . PERSON repeated her earlier statement .

On CARDINAL DATE the police interviewed GPE and GPE , both of whom were neighbours of the PERSON family in PERSON . GPE confirmed that it had been soldiers from ORG who had come to the village when PERSON had been killed . They had no other relevant information about possible perpetrators .

On CARDINAL DATE the police informed the NORP State Attorney ’s Office that they had asked ORG for information regarding the members of brigade CARDINAL of ORG who had arrived in GPE after Operation Storm and the killing of PERSON . On DATE ORG informed the police that PERSON had been buried by members of brigade QUANTITY of ORG which had been under the command of a person named PERSON , and provided a list of all members of that brigade with that name . CARDINAL of them , FAC , had already died .

DATE and DATE the police interviewed CARDINAL former NORP soldiers , PERSON , GPE , GPE , PERSON and PERSON , all members of ORG of the NORP army , also called the “ LOC ” . None of them had any knowledge about the killing of ORG or any other civilians during LOC .

On DATE , in answer to an inquiry from the ORG , the NORP State Attorney ’s ORG drew up a short report on the case . There had been no significant progress .

On DATE and DATE the police interviewed PERSON , GPE and GPE , members of smaller army units belonging to brigade CARDINAL of ORG . PERSON , a former member of the engineering unit , said that his unit had comprised CARDINAL soldiers and that he had never witnessed the killing of any civilians by any of them . PERSON , a former commander of logistics in the artillery unit , stated that his unit had never encountered any civilians at any time during Operation Storm , with the exception of a few in GPE , to whom they had given food and drink . Most of the villages they had passed through had had no name signs . He had no information to give them about the killing of PERSON . PERSON had been a soldier in the unit under the command of FAC , and the smaller unit to which he had belonged had been under the command of PERSON had no information to give them about the killing of PERSON and denied any involvement of his unit in the killing of civilians during LOC .

In a separate development , on DATE , ORG , who had been a member of the “ ORG ” brigade for DATE in DATE , after which he had been transferred to ORG , lodged a criminal complaint with the ORG against TIME the Minister for war veterans DATE and others for alleged abuse of authority . In that complaint PERSON mentioned the killing of a civilian or civilians in PERSON , DATE after LOC . He alleged that the crime had been “ tolerated by the command of FAC ( bojna ) of ORG ( “ gbr . ” which stands for “ gardijska brigada ” ) whose commander had been PERSON On DATE the ORG forwarded that information to ORG in ORG , which forwarded it to the police on DATE .

On DATE the police interviewed GPE He said that during LOC , the battalion had been in the village of GPE and had then gone on to ORG . A person in charge of logistics , named PERSON , had brought in a civilian , saying that he was a “ četnik ” ( derogatory term for a NORP nationalist or a member of NORP paramilitary forces ) . Ž.L. described the man in question in detail . Soon the vice - commander GPE and the commander of ORG ( satnija ) PERSON had arrived and had taken the man away somewhere . GPE and PERSON had returned after TIME , and when questioned about the whereabouts of the man they had taken away , P.Z. had answered that he had “ drifted in the river ” . After some time they had heard firing on a hilltop above them . ORG and another soldier , PERSON , had started walking towards the top of that hill and had come to a house where an old woman was standing wailing . There had been no one in the house , but in a field QUANTITY away they had found an elderly man lying on his belly with gunshot wounds to his back and head . A gun had been lying next to him . The man from logistics had said that he had shot him in the head to “ shorten his pain ” . Ž.L. had expressed his disapproval of the behaviour of the NORP soldiers to his commander GPE Later on he had learned that the old woman they had encountered in front of her house had also been killed .

On DATE the police again interviewed PERSON . She repeated her earlier statement , in essence , and also gave a description of the CARDINAL soldiers who had killed her father .

During DATE several short reports on the actions allegedly taken were compiled by the police and the GPE State Attorney ’s ORG .

On DATE the ORG sent to the GPE State Attorney ’s ORG a submission by ORG in which he alleged that he had witnessed the killing of civilians in PERSON , which had been both encouraged and perpetrated by the officers in command of FAC ( bojna ) of ORG .

On DATE the GPE State Attorney ’s ORG sent summonses to PERSON , GPE and ORG DATE .

On DATE Ž.L. informed the GPE State Attorney ’s ORG that , owing to his health problems , he would not be able to come to NORP on his own . He asked that transport to NORP be organised for him or that he be heard in PERSON , where he lived . In a further letter written on DATE he stated that some police officers had interviewed him on DATE and had concluded that “ the information he provided did not lead to the conclusion that a criminal offence had been committed ” . He further referred to a letter from the GPE State Attorney ’s MONEY DATE stating that “ the allegations from his objections and criminal complaints were unfounded ” .

On DATE GPE State Attorney ’s Office heard evidence from PERSON and on DATE from F.O. They both repeated their earlier statements .

It appears that on DATE the NORP State Attorney ’s ORG emailed a summons to ORG requiring him to give a statement regarding the killings in GPE in DATE . On DATE ORG sent a note back to ORG referring to the summons and stating that he refused to give any statements because of his health problems , the passage of time , and the fact that he had not actually witnessed any crimes and that his prior allegations in that respect had been unfounded . He also alleged that he had been denied his rights in connection with his medical treatment . On DATE the ORG Attorney ’s ORG forwarded ORG note to the GPE State Attorney ’s ORG .

On DATE the investigation in respect of a number of victims killed on the broader territory of the GPE by unknown perpetrators during Operation Storm was assigned to the GPE State Attorney ’s Office ( hereinafter the “ ORG ” ) .

On DATE the ORG , relying on ORG statement to the police , asked ORG to provide information about the whereabouts of the people ORG had named , in particular PERSON , PERSON , a person nicknamed PERSON and the person who had been in charge of logistics in the “ NORP ” brigade .

On DATE the ORG requested that the police in ORG carry out interviews with CARDINAL GPE , who possibly had information about the men who had killed PERSON ; to interview PERSON , PERSON , GPE , PERSON and PERSON , members of the “ ORG ” brigade who had been in ORG during LOC , about their whereabouts during the operation ; to locate CARDINAL commanders of the ORG unit whose members had allegedly buried PERSON on DATE and whose first names all began with M , namely PERSON , GPE and GPE ; and to again interview GPE , GPE , GPE , ORG , ORG , all inhabitants of ORG .

On DATE the police informed the ORG that GPE , GPE , PERSON and PERSON had died . There were also several people in GPE called GPE and GPE

NORP On DATE the police interviewed PERSON and GPE , former members of the “ LOC brigade . PERSON said it was possible that the brigade had passed through ORG during LOC but that they had not seen any civilians . He also said that GPE , GPE and PERSON had been part of a patrol group ( izviđačka desetina ) .

GPE said that the “ NORP ” brigade had not killed or arrested any civilians or soldiers during LOC .

On DATE ORG informed the police about the whereabouts of PERSON , GPE and GPE

On DATE the police interviewed PERSON , who had been a member of a “ NORP ” brigade patrol group . He said his group had not been in ORG during LOC and he did not know whether the “ ORG ” brigade had been there either .

On DATE the applicants and their mother brought a civil action against the ORG in ORG , seeking compensation in connection with the death of their father . They based their claim on the DATE LAW .

The claim was dismissed on DATE . This judgment was upheld on appeal by ORG on DATE and by ORG on DATE . The national courts found that the claim for compensation had been submitted after the expiry of the statutory limitation period prescribed by the law governing damages awards in civil proceedings .

A subsequent constitutional complaint lodged by the applicants was dismissed on DATE .