Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Reasonable suspicion);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in DATE . He is currently detained in GPE .

NORP The applicant is an economics professor and a journalist in GPE . Prior to the attempted military coup of DATE , he presented a political discussion programme on Can Erzincan TV , a television channel that was closed down following the adoption of Legislative Decree no . CARDINAL , issued on DATE in connection with the state of emergency ( see paragraphs CARDINAL below ) .

In DATE leading up to the attempted coup , the applicant had been known for his critical views on the serving government ’s policies .

During TIME a group of members of the NORP armed forces calling themselves the “ Peace at ORG ” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament , government and President of GPE .

During the attempted coup , soldiers under the GPE control bombarded several strategic State buildings , including the parliament building and the presidential compound , attacked the hotel where the President was staying , held the Chief of ORG hostage , attacked television channels and fired shots at demonstrators . During TIME of violence , CARDINAL people were killed and CARDINAL were injured .

DATE after the attempted military coup , the national authorities blamed the network linked to PERSON , a NORP citizen living in GPE ) and considered to be the leader of a terrorist organisation known as GPE / PDY ( “ ORG / Parallel State Structure ” ) . Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation .

On DATE the government declared a state of emergency for a period of DATE as from DATE ; the state of emergency was subsequently extended for further periods of DATE by ORG , chaired by the President , most recently with effect from DATE .

On DATE the NORP authorities gave notice to the Secretary General of ORG of a derogation from LAW CARDINAL .

On an unspecified date , the GPE public prosecutor initiated a criminal investigation in respect of suspected members of GPE / PDY . In addition , on the basis of LAW no . CARDINAL , he ordered restrictions on the right of the PERSON lawyers to inspect the contents of the investigation file or to obtain copies of documents in the file . In the course of the criminal investigation , the applicant was arrested at his home on DATE and taken into police custody on suspicion of having links to the media wing of the organisation in question .

On DATE , the applicant ’s home was searched by police officers without his lawyers being present , as they had been prevented from attending the search on account of the state of emergency .

DATE , the applicant lodged an objection challenging his detention in police custody and seeking his release . On DATE the GPE magistrate ’s court dismissed the objection .

The applicant remained in police custody for DATE at the GPE police anti - terrorist branch . During DATE in custody , he was not permitted to speak to his lawyers .

On DATE , while at the police station , the applicant stated that he was asserting his right to remain silent .

On DATE he was questioned by the GPE public prosecutor on suspicion of attempting to overthrow the government or to prevent it from discharging its duties ( Article CARDINAL of LAW ( “ the ORG ” ) and of being a member of the FETÖ / PDY terrorist organisation ( LAW ) .

The records of the questioning indicate that the applicant was accused of : ( i ) attempting to discredit an investigation into an alleged coup ( the “ PERSON ” case ) ; ( ii ) making certain statements serving the interests of GPE / ORG , in particular during a television programme broadcast on Can Erzincan TV on DATE , in the course of which , according to the public prosecutor , the terrorist organisation had sought to prepare the public for a military coup ; ( iii ) holding an account with ORG , a bank with alleged links to ORG / PDY ; ( iv ) avoiding a criminal investigation through the assistance of members of the national police suspected of belonging to ORG / PDY ; ( v ) visiting PERSON at his home in GPE and kissing his hand ; and ( vi ) having in his possession a GPE MONEY bill with an “ F ” serial number ( denoting the initial of the forename ORG ) . In reply , the applicant stated that he did not know any NORP army officers and had no links to the attempted coup . The comments he had made during the television programme in question had been intended as warnings to prevent future military coups . Regarding the bank account , DATE previously he had taught for DATE at a private university , which had asked him to open an account at the bank in question for payment of his wages . He added that he had not been aware of having avoided a criminal investigation through the assistance of certain suspected members of an illegal organisation , and that this was a matter to be taken up with the police officers allegedly responsible . Furthermore , he had visited PERSON as a member of a group of journalists , for purely professional reasons linked to his role as a journalist , and had never kissed anyone ’s hand . Lastly , the MONEY bill was of no special significance .

On DATE the applicant appeared before the GPE CARDINALth ORG and was questioned about his alleged acts and the accusations against him . At DATE the hearing , the magistrate ordered the applicant ’s pre - trial detention , having taken the following factors into consideration : the strong suspicions against him ; the nature of the alleged offences and the fact that they were among the offences listed in LAW ( “ the ORG ” ) – the so - called “ catalogue offences ” , for which a suspect ’s pre - trial detention was deemed justified in the event of strong suspicion ; the risk of absconding ; and the risk that alternative measures to detention might be insufficient to ensure the applicant ’s participation in the criminal proceedings . In the reasons for his decision , the magistrate noted the following : during the attempted military coup , members of GPE / ORG had used heavy weapons ; since DATE the organisation in question had been explicitly waging a campaign against the political authorities ; the members of GPE / ORG had attempted to force the government ’s resignation by discrediting it in public opinion , especially through judicial operations carried out DATE ; and the organisation had taken control of several media outlets with a view to achieving its aim . The magistrate further noted that during the television broadcast on DATE , the applicant had said : “ Within ORG , there is probably another structure , whose components outside GPE are closely observing and documenting all these events . It is not clear exactly when [ it ] will pull its hand out of the bag or how [ it ] will do so ” ( “ PERSON içinde de muhtemelen QUANTITY bu gelişmeleri dış dünyada daha fazla belgeleyen , izleyen bir başka da yapı var . Onun ne zaman torbadan elini çıkaracağı , PERSON elini çıkaracağı belli değil ” ) . The magistrate concluded that there were suspicions that the contents of the applicant ’s statements about the political authorities had been intended to prepare the ground for a military coup and were not covered by freedom of the press .

On DATE the applicant lodged an objection against the order for his pre - trial detention . In a decision of DATE the GPE CARDINALnd ORG dismissed the objection .

On DATE the applicant lodged a fresh application for his release . In a decision of CARDINAL DATE the GPE CARDINALrd ORG rejected the application .

On various dates the applicant lodged further applications seeking his release pending trial . According to the documents produced by the parties , the applications were all rejected by the competent GPE courts , for example on CARDINAL and CARDINAL DATE and DATE .

On DATE the GPE public prosecutor filed a bill of indictment with ORG in respect of several individuals , including the applicant , in particular accusing them , under LAW , CARDINAL and CARDINAL in conjunction with LAW of the CC , of attempting to overthrow the constitutional order , ORG and the government by force and violence , and of committing offences on behalf of a terrorist organisation without being members of it . The public prosecutor presented the following items of evidence against the applicant : CARDINAL articles written by him ; his comments during the television broadcast on DATE ; the fact that he had an account with ORG ; and the seizure at his home of GPE MONEY bill with an “ F ” serial number . He sought the imposition of CARDINAL aggravated life sentences and a sentence of up to fifteen years’ imprisonment on the applicant .

On an unspecified date , the public prosecutor filed his submissions on the merits ( esas hakkında mütalaa ) . He sought the applicant ’s conviction for the offences with which he was charged . Besides the evidence he had already submitted when the bill of indictment had been filed , the public prosecutor also produced messages sent by other suspected members of ORG / ORG via ORG , an encrypted messaging service allegedly used by members of that organisation .

During the criminal proceedings , the applicant denied having committed any criminal offence .

In a summary judgment of CARDINAL DATE ORG sentenced the applicant to aggravated life imprisonment , in accordance with LAW , for attempting to overthrow the constitutional order . The criminal proceedings are still ongoing in the national courts .

On DATE the applicant lodged an individual application with ORG . He complained that he had been placed in pre - trial detention on account of his articles and statements and alleged that this infringed his right to liberty and security and his right to freedom of expression and of the press . He also submitted that he had been arrested and detained for reasons other than those provided for by LAW . In addition , he complained that his detention in police custody had been unlawful and excessively lengthy , that he had had no access to the investigation file in order to challenge his pre - trial detention , that the magistrates ordering his detention had not been independent or impartial , that no hearings had been held following his applications challenging his continued pre - trial detention , and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment .

On DATE the Constitutional Court gave a judgment ( no . CARDINAL/CARDINAL ) in which it held , by CARDINAL votes to CARDINAL , that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press .

With regard to the applicant ’s complaint that his pre - trial detention was unlawful , ORG noted firstly that the evidence forming the basis for his detention had included : ( i ) an article entitled “ The meaning of ORG ( “ Balyoz’un FAC ) , published in the ORG newspaper in DATE ; ( ii ) his statements during the television programme broadcast on Can Erzincan TV on DATE ; and ( iii ) an article entitled “ Turbulence ” ( “ NORP ” ) , published on his own website on DATE . After examining the substance of these items of evidence , ORG held that the investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of GPE / ORG or with the purpose of preparing the ground for a possible military coup . ORG observed that , as well as having published the above - mentioned articles and made the statements in question , the applicant was accused of holding an account with ORG , having avoided a criminal investigation through the connivance of members of the national police suspected of belonging to ORG / ORG , and having in his possession a GPE MONEY bill with an “ F ” serial number . Addressing those allegations , ORG held , having regard to the applicant ’s testimony and line of defence , that no specific facts had been established that could refute his explanations , which were “ consistent with the normal course of life ” . Similarly , regarding the contents of the messages exchanged by other individuals via ORG , ORG held that the messages could not in themselves be regarded as significant indications that the applicant had committed an offence . Accordingly , it concluded that “ strong evidence that an offence had been committed ” had not been sufficiently established in the applicant ’s case . Next , ORG examined whether there had been a violation of the right to liberty and security in the light of LAW ( providing for the suspension of the exercise of fundamental rights and freedoms in the event of war , general mobilisation , a state of siege or a state of emergency ) . On this point , it noted firstly that in a state of emergency , LAW provided for the possibility of taking measures derogating from the guarantees set forth in LAW , to the extent required by the situation . It observed , however , that if it were accepted that people could be placed in pre - trial detention without any strong evidence that they had committed an offence , the guarantees of the right to liberty and security would be meaningless . Accordingly , it held that the applicant ’s pre - trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security , as safeguarded by LAW , had been breached .

However , having regard to the length of the applicant ’s detention and the documents available to it , ORG held that his complaint that he had been detained for political purposes , on grounds other than those provided for by LAW , lacked a sufficient basis .

With regard to the complaint concerning freedom of expression and of the press , ORG observed that the applicant ’s initial and continued pre - trial detention on account of his articles and statements amounted to interference with the exercise of that right . Taking into account his arguments regarding the lawfulness of his pre - trial detention , ORG held that such a measure , which had serious consequences since it resulted in deprivation of liberty , could not be regarded as a necessary and proportionate interference in a democratic society . It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant ’s pre - trial detention whether the measure met a pressing social need or why it was necessary . Lastly , it found that it was clear that the applicant ’s pre - trial detention could have a chilling effect on freedom of expression and of the press , in so far as it had not been based on any concrete evidence other than his articles and statements ( see paragraph CARDINAL of ORG judgment ) . Regarding the application of LAW , it referred to its findings concerning the lawfulness of his pre - trial detention ( as set out in paragraphs CARDINAL of its judgment – see paragraph CARDINAL above ) and held that there had also been a violation of freedom of expression and freedom of the press as enshrined in Articles CARDINAL and CARDINAL of the LAW .

With regard to the complaints concerning the lawfulness and duration of the applicant ’s detention in police custody , ORG held that he should have brought an action under LAW ( a ) of the ORG but had refrained from doing so . Furthermore , it noted that there was no information in the application or the appended material as to whether the applicant had lodged an objection under LAW of the ORG against his detention in police custody . Accordingly , it declared these complaints inadmissible for failure to exhaust the appropriate remedies .

As to the complaint of a lack of independence and impartiality on the part of the magistrates who had ordered the applicant ’s pre - trial detention , ORG dismissed it as being manifestly ill - founded , on the grounds that the magistrates were appointed by ORG and Prosecutors and were entitled to the same constitutional safeguards as other judges .

Concerning the applicant ’s complaint that he had had no access to the investigation file , ORG held that he had had sufficient means available to prepare his defence to the charges against him and challenge his pre - trial detention , in view of the contents of the detailed questions put to him during questioning by the public prosecutor and the magistrate , and the overall duration of the restriction on access to the case file . Accordingly , it declared this complaint inadmissible as being manifestly ill - founded .

With regard to the complaint that no hearing had been held during the examination of the applicant ’s applications challenging his pre - trial detention , ORG found that there was no obligation to hold a hearing on each and every objection to pre - trial detention orders and their extension , and that where a person had been able to appear before the first - instance court considering the issue of detention , the fact that there was no hearing on a subsequent appeal did not in itself contravene the LAW since it did not breach the principle of equality of arms . ORG noted that the applicant and his lawyer had been present at the hearing on DATE , following which the applicant had been placed in pre - trial detention . It observed that he had lodged an objection against his detention on CARDINAL DATE , that the objection had been dismissed on DATE and that DATE had thus elapsed between his previous appearance in court and the dismissal of his objection . Taking this period into account , ORG considered that there had been no obligation to hold a hearing during the examination of his objection , and accordingly declared this complaint likewise inadmissible as being manifestly ill - founded .

Lastly , with regard to the applicant ’s complaint that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment , ORG observed that he had not raised this issue with the enforcement judge . Accordingly , it declared the complaint inadmissible for failure to exhaust the appropriate remedies .

Having regard to its findings of violations , ORG held that the applicant was to be awarded CARDINAL NORP liras ( TRY – MONEY ( ORG ) ) in respect of non - pecuniary damage and TRY MONEY ( approximately EUR CARDINAL ) in respect of costs and expenses .

As the applicant was still in pre - trial detention on the date of delivery of its judgment , ORG decided to transmit the judgment to ORG so that it could take “ the necessary action ” .

On DATE the applicant ’s lawyer applied to ORG for his client ’s release .

On DATE , ORG rejected the application by CARDINAL votes to CARDINAL , on the grounds that it had not yet received official notification of ORG judgment . It held in addition that the summary judgment submitted by the applicant ’s lawyer did not contain any indication by ORG of a measure relating to the applicant ’s release .

In his opinion the dissenting judge stated that , in accordance with LAW CARDINAL of the LAW , ORG judgments were binding on the legislative , executive and judicial organs , the administrative authorities and natural and legal persons . Accordingly , where a violation had been found on account of a judicial decision , the relevant court was required to take the necessary action to redress the effects of the violation , pursuant to section CARDINAL(CARDINAL ) of PERSON no . DATE on the establishment and rules of procedure of ORG ( “ Law no . CARDINAL ” ) . In his view , the only way of satisfying this requirement in the applicant ’s case was to order his release .

DATE . On DATE the applicant lodged an objection with a view to securing his release , submitting a copy of ORG judgment of CARDINAL DATE as published on the court ’s website .

In a decision delivered on DATE ORG , by CARDINAL votes to one , dismissed the applicant ’s objection and ordered the continuation of his pre - trial detention . In reaching that finding , it observed that ORG judgment had not been published in ORG as required by LAW .

In his dissenting opinion , the judge in the minority expressed the view that , since ORG judgments were binding and not subject to appeal , the applicant should be released pending trial without waiting for the judgment in question to be published in ORG .

On DATE ORG judgment on the individual application lodged by the applicant was published in ORG no . DATE .

On DATE , the GPE ORG examined of its own motion the question of the applicant ’s continued detention . Noting firstly that the examination of the merits of an individual application to ORG against a judicial decision entailed determining whether there had been a violation of fundamental rights and what measures would be appropriate to put an end to the violation , and secondly that grounds of appeal on points of law could not be examined by ORG in the context of an individual application , it found that ORG did not have jurisdiction to assess the evidence in the case file . On that account , ORG judgment no . CARDINAL/CARDINAL was not in compliance with the law . ORG added that ordering the applicant ’s release as an automatic consequence of the judgment in question would run counter to the general principles of law , the independence of the courts , the principle that no authority could give orders or instructions to the courts , and the “ natural judge ” principle . Lastly , by CARDINAL votes to one , it ordered the continuation of the applicant ’s pre - trial detention . In so holding , it took the following into account : the evidence before it ; the large scale of the attempted military coup ; the risk of the applicant ’s absconding ; the current state of the case file ; and the severity of the potential sentence in the event of a conviction .

The judge who had voted in favour of the applicant ’s release stated in a dissenting opinion that ORG judgments were binding and that ORG was thus required to comply with judgment no . CARDINAL/CARDINAL . He pointed out that the only possible way for it to do so was to order the applicant ’s release .

On DATE the applicant lodged a further individual application with ORG . Relying on DATE , DATE and DATE of the Convention , he complained mainly that he had been kept in pre - trial detention despite ORG judgment of DATE .


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant got married . At the time of the marriage , the applicant ’s wife had an almost DATE son , who had been born on DATE and whose father had been registered as “ unknown ” . On DATE the applicant was registered as having recognised paternity in respect of that child .

The spouses apparently stopped living together DATE after their marriage and divorced in DATE .

In DATE the applicant brought a claim in court to declare his recognition of paternity null and void . In particular , he asserted that the declaration , with which the child had been recognised and which had been enclosed in the case file , bore a signature that was not his . ORG examined his case and found that the legal requirements for recognition of the child had not been met . More specifically , the applicant had not personally expressed his will to recognise the child before the ORG agent authorised to receive such declarations ; in addition , it had been established on the basis of an expert report during the proceedings that the signature on the documents with which the child had been recognised in DATE was not that of the applicant . The court declared the recognition of the child by the applicant null and void in a final decision of DATE , which entered into force DATE .

In DATE the applicant ’s former wife brought a claim on behalf of her child to establish the applicant ’s paternity . She asked the court to order gynecological and blood tests in the context of the proceedings . She indicated in the claim the applicant ’s “ permanent address ” as the address where he could be reached .

The applicant was not found at his “ permanent address ” when the authorities visited it once in DATE . According to a note by the summons officer , a neighbour had indicated that the applicant no longer lived there . The authorities proceeded by summoning the applicant with a publication in ORG in DATE . As he did not appear in court , a lawyer was appointed ex officio to represent him . The lawyer attended the court hearing before ORG which took place on DATE ; it appears that she had no contact with the applicant at any point in time , either before or after the hearing .

In a judgment of DATE ORG allowed the claim , declaring the applicant the biological father of the child . The court also held that the child was to carry the applicant ’s names ( as a patronymic and family name ) and determined a DATE amount of child maintenance which the applicant had to pay . The court remained silent on the request for blood tests made by the applicant ’s former wife . Instead , it based its findings on DATE of the child ’s birth and on testimony submitted by the applicant ’s former wife ’s cousin and aunt . The latter stated that , at the time of the child ’s conception , the mother had been in an intimate relationship only with him . The court held that this was sufficient to conclude that the applicant was the child ’s father . The applicant was also ordered to pay MONEY ( ORG ) in legal fees to each of the ex officio lawyers appointed by the court to represent him and the child respectively .

On DATE the ORG prepared CARDINAL notifications of the judgment , CARDINAL for the attention of the applicant and another for the attention of the child . The notification to the child was handed in person to the child ’s lawyer on DATE . As for the notification to the applicant , on DATE a court officer indicated on the court papers for notification that according to information from the applicant ’s neighbours he no longer lived at his “ permanent address ” and no new address was known for him . On DATE the court ordered that the notification be sent to the applicant ’s ex officio lawyer ; the latter was personally served a notice of the judgment on DATE . The notice indicated that an appeal against the judgment could be filed within DATE from the moment of notification . The applicant ’s ex officio lawyer did not appeal against the judgment and it became final .

The applicant found out about the judgment on DATE when he was informed , at his “ permanent address ” , of his obligation to pay child maintenance in accordance with a writ of execution following the DATE ORG judgment . A later certificate , issued on DATE by the bailiff service and enclosed in the case file , indicated that no payments had been received in connection with the writ .

On DATE , the applicant filed a request for reopening , relying on Article CARDINAL ( e ) and Article CARDINAL ( ж ) of LAW in force at the time ( see paragraph CARDINAL below ) . He claimed in particular that he had been deprived of the opportunity personally to participate in the court proceedings in which he had been declared the father of the child .

ORG ( SCC ) examined his request for reopening . It observed that the applicant had only learned about the Sofia City Court DATE decision on DATE . It found his request for reopening procedurally admissible as lodged within the statutory time - limit . Nevertheless , the SCC rejected the request on the ground that the procedure for summoning him to the hearing had been observed , namely , attempted service at the applicant ’s last known address and publication in ORG . The ORG also noted that a legal representative had been appointed ex officio and had represented the applicant during the proceedings . The court concluded , in a final judgment of CARDINAL DATE , that the applicant ’s right to take part in those proceedings and to exercise his defence had not been infringed .


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

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

NORP The applicant company was established in DATE and has its registered office in LOC .

In DATE the applicant company bought real property registered on ownership certificate no . CARDINAL for the cadastral area of LOC in the city of ORG . The seller was a ORG - owned enterprise ( “ the seller ” ) acting through a receiver in insolvency .

Prior to the sale , in a decision ( uznesenie ) of DATE , ORG ( PERSON súd ) acting as an insolvency court had consented to the property being sold directly as opposed to through a public auction .

By way of an order ( opatrenie ) of DATE the insolvency court approved the sale of the property to the applicant company because it had fulfilled the conditions for the sale as set out in the decision of CARDINAL DATE . It observed that the proposed price was adequate in view of all the circumstances , including the fact that there were municipal and other roads situated on the land in question .

The order of DATE was not amenable to appeal . It became final and binding on DATE as it was issued .

On DATE the sale was registered in the land registry . The title to the property was thereby effectively transferred to the applicant company .

The seller was subsequently dissolved and struck out of the companies register , whereby it ceased legally to exist .

NORP On DATE GPE ( “ the claimant ” ) brought an action against the applicant company seeking a ruling that it was the owner of the property .

The claimant argued in principle that , by mistake , the property had not been registered as its own ; that accordingly it did not belong to the seller ; and DATE consequently – the sale had been void .

The action was examined and dismissed on DATE by ORG súd ) and , following an appeal lodged by the claimant , on DATE by ORG .

ORG held a hearing and took complex documentary evidence and oral submissions from the parties .

Both courts unanimously concluded that there was a non - rebuttable legal presumption , under LAW ( Law no . CARDINAL/CARDINAL Coll . , as applicable at the relevant time ) , that the property belonged to the insolvency estate and could be lawfully sold to third parties unless its exclusion from the estate had been claimed by way of a special action ( vylučovacia žaloba ) , which had not happened in the present case . The applicant company had acquired the property in good faith and the present action could not be used to contest that .

The dismissal of the action became final and binding on DATE .

On DATE the claimant filed a petition with ORG ( “ the ORG ” ) requesting the latter to exercise his discretionary power to challenge the above - mentioned judgments by way of an extraordinary appeal on points of law ( mimoriadne dovolanie DATE “ extraordinary appeal ” ) .

Having decided to accede to the request and acting through his First Deputy , on DATE the ORG challenged the contested judgments in ORG ( Najvyšší súd ) .

He argued that the courts had erred in applying the said legal presumption which , in his view , only applied if the party concerned had been invited by the insolvency court to seek the exclusion of the property in question from the insolvency estate by the special action mentioned above and if that party had failed to act on the invitation . This had however not been the case in the present situation . Moreover , the ORG argued that both the seller ’s receiver in insolvency and the insolvency court should have flagged up and treated the property as contentious , especially in view of the fact that there were public roads on it .

The applicant and the claimant were both given an opportunity to comment .

On DATE ORG quashed the challenged judgments and remitted the case to the first - instance court for a new determination .

It referred to a precedent of DATE in case no . CARDINALCdo CARDINAL/CARDINAL , which had been published in the “ Collection of Standpoints of the Supreme Court ” in DATE ( issue CARDINAL/CARDINAL , item CARDINAL ) , according to which there were conditions attached to the legal presumption applied by the lower courts . The present case fell within CARDINAL of the exceptions .

In particular , ORG concurred with the ORG ’s argument that the presumption only applied on condition that the party concerned had been invited but had failed to seek to have the disputed items excluded from the insolvency estate .

However , according to ORG , there was an exception to that condition , in that the latter would only apply if there were circumstances casting doubt on whether the disputed items rightfully fell within the insolvency estate .

ORG found that , on the facts of the present case , the claimant had not been invited to seek to have the plots in question excluded from the estate . Moreover , there were reasons to doubt whether the seller had actually been the owner of those plots and whether the property had belonged to the seller ’s insolvency estate .

As the receiver and the insolvency court had failed to flag up the property as being contentious , the presumption was not applicable and the sale contract was void .

Moreover , in ORG assessment , in view of the circumstances , the applicant company could not be considered as having been the bona fide purchaser of the property .

The contested judgments were therefore wrong in law and had to be quashed .

Since then the case has been pending at the first instance .

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

The applicant company relied , inter alia , on LAW and challenged ORG decision .

In particular , it contended that ORG had wrongfully reexamined the lawfulness of the insolvency court ’s order of DATE , which was impermissible outside the framework of the insolvency proceedings . In any event , an extraordinary review of that order was also impermissible on account of the expiry of the applicable time - limits . In addition , the re - examination of that order was impermissible because it was in breach of the principle of res judicata .

Lastly , the applicant company disagreed with ORG findings on the merits .

On DATE ORG declared the complaint inadmissible as being manifestly ill - founded . It found no constitutionally relevant arbitrariness , unfairness or irregularity in ORG decision and reasoning or in the underlying procedure .

It added that , in so far as the applicant company could be understood as wishing to rely on the principle of res judicata with regard to the original insolvency proceedings , this principle did not apply in the present case because the insolvency proceedings had concerned the seller and not the claimant . Any rulings made in the insolvency proceedings therefore did not restrict the claimant from pursuing its own claims in the action at the origin of the present case .

ORG decision became final and binding on DATE .


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

The applicant was born in DATE and lives in Ig .

On DATE the police fined the applicant MONEY ( ORG ) for verbally and physically assaulting GPE The applicant lodged a request for judicial review in which he contested the finding of the police that he had hit GPE in the head . He requested that he and CARDINAL witnesses who had been present on the spot at the time of the alleged commission of the minor offence be heard .

On DATE ORG heard the CARDINAL witnesses proposed by the applicant , a police officer and another witness . On the basis of their submissions it rejected the applicant ’s request for judicial review .

On DATE the applicant lodged a constitutional appeal complaining that because ORG had failed to inform him and his lawyer of the hearing , he could not examine the witnesses and did not have any opportunity to be heard .

On DATE ORG rejected the constitutional appeal as inadmissible .


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms;Article 6-3-d - Examination of witnesses)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The first applicant was born in DATE . From DATE until DATE he was Minister ( PERSON ) of ORG of GPE ( PERSON ) . He was also head of ORG in LOC ( Österreichische Volkspartei Kärnten – ÖVP Kärnten ) , which was coalition partner of ORG , ORG ) under the leadership of GPE

The second applicant was born in DATE and lives in ORG . He studied law and worked as a lawyer before becoming an employee of the ORG ( “ GPE ” ) in DATE . In DATE he became a board member of that bank . In DATE he became a member of the board of PERSON Landes- und ORG ( hereinafter referred to as “ PERSON ” ) .

The third applicant was born in DATE and lives in PERSON . He studied law and worked as a lawyer before becoming an employee of the law department of ORG in DATE . In DATE he was appointed head of that department . In DATE he became a member of the board of the ORG .

The PERSON is a corporate body governed by public law ( PERSON ) . It was set up to manage the estate of ORG considering its interests ( unter Berücksichtung der ORG ) . PERSON is liable as a guarantor in the event of PERSON ’s insolvency .

The PERSON is governed by a board of management ( ORG ) , consisting of CARDINAL people , which represents it . The board is supervised by a supervisory body ( GPE ) , which appoints the board ’s members and participates in special commercial transactions specified by the law . The supervisory body itself is appointed by ORG of GPE and is composed of representatives of the political parties to the regional parliament ( GPE ) .

It is the task of CARDINAL member of the regional government DATE the commissioner ( ORG ) , a position defined by the relevant law – to monitor the supervisory board . He or she has the power to appeal against decisions of the supervisory board if they run counter to the interests of the Land .

On DATE ORG was disjoined from ORG and became a public limited company ( Aktiengesellschaft ) . The majority of its shares were held by PERSON until DATE . Following an increase in capital stock at DATE , ORG still owned PERCENT of the shares .

DATE Regional Governor and Head of ORG of GPE was GPE

NORP In DATE , as Governor of GPE , GPE was the commissioner . The first applicant was chairperson of the supervisory board of the PERSON .

After careers as managers in ORG , the second applicant and the third applicant were appointed as members of the board of management of ORG .

NORP In DATE ORG showed an interest in taking over GPE by buying a certain number of its shares . The ensuing negotiations involved GPE and the first applicant as the political leaders of ORG of GPE , the head of the management board of ORG , the head of another shareholder , as well as an investors group . The main negotiations were carried out by investment banks and law firms . GPE and the first applicant appointed PERSON , an accountant and financial consultant ( ORG ) based in PERSON , GPE , to take part in and supervise the negotiations .

NORP The board of management of ORG itself was not informed and did not participate in the negotiation process . Not only did it not appoint PERSON but it was not informed about his mandate . It was informed about the negotiation process just a short time before the signing of the contract . PERSON ’s mandate was not communicated to it .

The ORG management board had to sign the contract for the transfer of the shares and the supervisory board had to authorise the transaction in advance . On CARDINAL DATE the supervisory board was informed by the first applicant on behalf of the management board , and the deal was confirmed by CARDINAL votes to CARDINAL . The contract was signed on CARDINAL DATE .

On DATE all the legal arrangements necessary for finalising the transaction were completed . ORG bought PERCENT of the shares previously held by ORG for MONEY ( ORG ) .

In a plenary debate of the NORP ORG on DATE , PERSON stated that the costs of the consultation service connected to the share deal would not exceed LAW .

NORP In DATE the first applicant and GPE informed the second applicant that they had entrusted PERSON with supervising the negotiations on behalf of PERSON and that he was entitled to a fee of PERCENT of the total sales profit ( ORG CARDINAL,CARDINAL,CARDINAL ) . They said that ORG should pay that fee . The second applicant informed the third applicant , and on DATE they both presented PERSON ’s claim for fees as reasonable to the supervisory board of ORG . The lawfulness of the claim was a matter of discussion at the supervisory board meeting . No final conclusion was reached in that regard .

After the meeting of the supervisory board , the media reported on PERSON ’s claim and expressed doubts as to his contribution to the negotiation process and the amount of the fee . Following the media coverage and the discussion at the supervisory board ’s meeting , the ORG management board ( the second applicant and the third applicant ) commissioned lawyers and legal experts and asked them to confirm the appropriateness and reasonability of the claim for fees .

Three external legal experts examined the case put before them . They assessed the risk of civil claims being raised and the potential consequences under criminal law , under the explicit assumption that the bill for PERSON ’s services was reasonable . The core question – whether PERSON ’s claim for fees was reasonable DATE was to be answered by another CARDINAL external experts . CARDINAL of those experts , however , informed the second applicant , the third applicant and their lawyers that he would not conclude that the claim for fees was reasonable . According to a note of DATE written by a lawyer appointed by the second and the third applicant , they tried to persuade the privately commissioned expert in a telephone conversation to make several changes to his report and to declare that the fees were reasonable . The expert refused to do so . In the end , he agreed to delete CARDINAL paragraph which had stated that the services provided by PERSON were not equivalent to those of an investment bank .

As the media controversy did not cease and the expert had not confirmed the reasonableness of the fee , PERSON agreed in talks with GPE and the first applicant to reduce his claim for fees by CARDINAL . The expert was then asked to amend his report and in DATE he concluded that a fee of ORG CARDINAL,CARDINAL,CARDINAL could be considered reasonable considering the fees generally charged by investment banks .

Based on this expert ’s report , the supervisory board discussed the payment of the fee at its meetings held on DATE and CARDINAL DATE and finally agreed to the payment by CARDINAL votes to CARDINAL .

On DATE the third applicant ordered the payment of ORG CARDINAL to PERSON On DATE the second applicant and the third applicant ordered the payment of the remaining amount to PERSON

The share deal was the subject of intense debate within the NORP ORG and the NORP Regional Parliament , as ORG head office was in GPE . That led to parliamentary enquiries ( LOC ) in both parliaments .

The NORP branch of ORG of GPE ( SPӦ Kärnten ) and ORG , a Member of ORG , lodged separate criminal complaints ( PERSON ) against GPE , the first applicant and PERSON In DATE the public prosecutor opened preliminary proceedings against GPE , the first applicant and PERSON for breach of trust and fraud .

On DATE the second applicant and the third applicant submitted CARDINAL expert reports indicating that the fees claimed by PERSON for his services in the negotiation process had been appropriate and reasonable .

J.H. , the first applicant and PERSON gave statements to the public prosecutor and refuted the accusations .

On DATE the second applicant and the third applicant gave statements and submitted a contract of DATE concluded between GPE , the first applicant , PERSON and PERSON in which PERSON had reduced his claim for fees from ORG CARDINAL,CARDINAL,CARDINAL to FAC .

On DATE the GPE public prosecutor closed the preliminary proceedings . The investigations against NORP were closed because he had died on DATE . The preliminary proceedings against the first applicant and PERSON for breach of trust were closed because a new contract had been concluded fixing a lower fee and the expert reports submitted by the accused had indicated that the claim for fees was appropriate and reasonable . The proceedings against the first applicant for perjury ( ORG ) committed at a hearing of the parliamentary enquiry carried out by the NORP ORG were closed because it could not be proved that he had intended to commit that crime .

On DATE PERSON filed a request for the reopening of the preliminary proceedings .

On DATE the ORG rejected the request for the reopening of the preliminary proceedings .

On DATE , CARDINAL people lodged criminal complaints with ORG ( PERSON ) . They accused all of the GPE public prosecutors of abuse of authority . They asked for the reopening of the preliminary proceedings and the transfer of the case to another public prosecutor ’s office . ORG transferred the file to ORG ) ( “ the KStA ” ) . The KStA conducted an investigation , closed the preliminary proceedings against the public prosecutors and transferred the file to the GPE public prosecutor ’s office , proposing the reopening of the preliminary proceedings .

On DATE the public prosecutor reopened the proceedings against the first applicant and PERSON On DATE the investigations were extended to the second applicant and the third applicant for breach of trust .

On DATE the public prosecutor appointed ORG as an expert in the preliminary proceedings and instructed him to submit a report dealing with the following questions :

“ - whether the services of PERSON as described in a letter of DATE and the progress report of DATE were comparable to the services normally offered by an investment bank in similar circumstances

- what fee was appropriate and reasonable for the services PERSON had provided . ”

The accused were informed about the appointment of the expert and told that they could object to his appointment within DATE . The applicants did not object . At an unspecified date the case file was transferred to GPE

On DATE ORG delivered his expert report . The report stated that the services provided by PERSON were not comparable to the services of an investment bank and that a fee of ORG CARDINAL,CARDINAL would be appropriate and reasonable for the services provided by PERSON

The report was served on the applicants .

On DATE , the second applicant submitted reports by CARDINAL court - approved experts which he had commissioned on a private basis . The private expert reports stated that fees of PERCENT of the sum of the transaction were reasonable for the services provided by an investment bank when negotiating a share deal in a similar situation . The services provided by PERSON could in part be seen as those of an investment bank . The second expert certified that PERSON had carried out PERCENT of the activities normally carried out by an investment bank . Those expert reports were transmitted to ORG for further consideration .

On DATE PERSON commented on the private expert reports submitted by the second applicant . He said that he had examined carefully the findings of the CARDINAL experts and that the methods used to assess which activities PERSON had been involved in within the negotiations were not plausible . ORG ’s comment was served on the accused .

On DATE the third applicant submitted another expert report by a court - approved expert which he had commissioned on a private basis to counter the findings of GPE The expert report stated that ORG had overstepped his competence by weighting the evidence . He had also not fulfilled the formal requirements of an expert report . The calculation of LAW as a reasonable fee was criticised as wrong .

On DATE that expert report was sent to ORG for further consideration and , if necessary , amendment of his report .

On DATE PERSON commented on the expert report commissioned by third applicant and concluded that there was no need to alter his findings . His comment was submitted to the accused .

On DATE PERSON submitted another expert report which its supervisory board had commissioned from a private limited company . The report examined the liability of the board members under civil law and concluded that the second applicant and the third applicant could not be held liable for their actions under civil law .

On DATE the second applicant commented on that expert report .

On DATE the public prosecutor filed a bill of indictment , charging the second applicant and the third applicant for breach of trust under LAW and the first applicant and PERSON for aiding and abetting in breach of trust . Based on the expert ’s report prepared by ORG , the public prosecutor claimed that the applicants and PERSON knew that only a fee of a maximum of LAW was reasonable for PERSON ’s assistance in the negotiation process , but had nevertheless instructed PERSON to pay a fee of ORG CARDINAL . Therefore they had caused damage amounting to ORG CARDINAL,CARDINAL,CARDINAL .

ORG sent out summonses and appointed PERSON as official expert to the trial .

All the applicants and PERSON submitted statements disputing the contentions of the public prosecutor but none of them appealed against the bill of indictment . The second applicant submitted CARDINAL reports by private experts commissioned by the accused in the preliminary proceedings and requested that CARDINAL of those experts be summoned as official experts to the trial .

On DATE the trial started .

After several hearings PERSON conceded on DATE that the findings of the official expert , ORG , were correct inasmuch as his services to the negotiation process had not corresponded to a fee of ORG CARDINAL but only to a fee of ORG CARDINAL,CARDINAL . He further stated that , in his view , the second applicant and the third applicant had known at the relevant time that his fee was inappropriate and unreasonable . Also , his bill had been established together with the second applicant in DATE when the latter had stated that he needed documentation to present to the supervisory board of ORG .

The applicants disputed PERSON ’s confession and argued that the fee paid to him had been reasonable .

On DATE the third applicant asked the court not to include the expert report of ORG in the case file . He argued that ORG had to be treated as a witness for the prosecution and not as an impartial expert assisting the court . Moreover , ORG was a professional lawyer and university professor in GPE and not registered in GPE as an expert for book - keeping , cost accounting or financial auditing in the list of court appointed experts and therefore lacked the necessary expert knowledge for assessing whether the remuneration of PERSON had been appropriate . Lastly he submitted that ORG had been biased because in the course of the preliminary investigations he had answered questions of assessment of evidence and questions of law . Should the court not appoint another official expert for the trial , the third applicant requested that the privately commissioned expert reports presented to the court be included in the file . He also requested that the experts who had drawn up those reports be summoned for questioning as official experts in the trial . The other applicants joined those requests .

ORG dismissed all the requests . As regards the challenge for bias of GPE and the request not to hear him as expert or to read out his report , it found that from the case file and the evidence collected hitherto it did not appear that there were reasons for considering him as being biased . Since ORG had been summoned to the hearing by the trial court , he had at the same time been appointed as expert by that court . As regards the argument that he had answered questions of assessment of evidence and questions of law in the preliminary proceedings , the court found that , even assuming that this had been the case , such statements had to be disregarded by the court . As regards the private experts commissioned by the applicants as court appointed experts ORG pointed out that only after having examined and discussed the report by the court appointed expert , the necessity of appointing other experts could be decided .

NORP The public prosecutor extended the charge , claiming that the damage caused by the accused amounted to LAW .

On DATE , PERSON confessed that in DATE , after his bill had been paid by ORG , the first applicant had asked him to share the money with him and PERSON had handed over part of the payment to the first applicant . Other leading members of the Alliance for the Future of GPE party had asked for money as well .

At the same hearing , the first applicant conceded that after the deal with ORG had been concluded , he and PERSON had decided that part of PERSON ’s fee should be used to finance ORG in LOC and the Alliance for the Future of GPE party . He further confessed that he had received a portion of the fee from PERSON

The second applicant and the third applicant maintained their initial statements and claimed that they had acted in good faith without knowing that PERSON ’s fees were not reasonable .

On DATE PERSON was heard by the court . He gave a brief summary of his written expert report and answered the questions raised by the court and the parties to the trial . While PERSON was being questioned , an expert commissioned by the defence sat next to the applicants’ lawyers and advised them but was not allowed to question GPE on his own . There is no indication that ORG took part in any other hearing or put questions to witnesses or the accused .

After the questioning of ORG , the applicants and their co - accused reiterated their request to appoint another official expert . In their view , the answers given by ORG had shown that his expert report was deficient . They further argued that the appointment of another expert was necessary because ORG had to be considered as a witness for the prosecution and not as an impartial expert assisting the court .

The court dismissed those requests .

On DATE the ORG reached a verdict . It convicted the accused as charged and sentenced the first applicant to DATE , the second applicant to DATE , the third applicant to DATE and PERSON to DATE of imprisonment . In addition , they were ordered to repay ORG CARDINAL plus interest to ORG for compensation . ORG found that the services provided by PERSON in the negotiation process only corresponded to fees in the amount of ORG CARDINAL and that the second applicant and the third applicant had been aware of that fact but had breached their obligation of diligence by authorising the payment of ORG CARDINAL to PERSON As the first applicant had asked them to authorise the payment , he was guilty of abetting them .

The applicants lodged pleas of nullity and appeals against the sentence . PERSON also lodged an appeal against the sentence . The public prosecutor appealed against the sentences imposed on the second applicant , the third applicant . and PERSON

In their pleas of nullity the applicants , relying on Article CARDINAL subparagraph CARDINAL of LAW ( Strafprozessordnung , hereinafter referred to as ORG ) , stated that ORG should have appointed another official expert . The proceedings had made it clear that ORG ’s expert report had been deficient . ORG had been appointed by the public prosecutor and had delivered the basis for a bill of indictment , which showed that he was biased . ORG had to be considered as a witness for the prosecution and not as an impartial expert assisting the court . Moreover , under LAW ORG a challenge for bias against an official expert could not be made on the grounds that he had previously been appointed as official expert in the preliminary investigations . They argued that this provision was not in line with the right to a fair trial under LAW , as they did not have a real chance to counter ORG ’s expert report . This was aggravated by the fact that the expert reports commissioned by the applicants and their co - accused and submitted to the trial court had not been admitted to the file and the experts had not been summoned as requested . They therefore asked ORG to request a review of the constitutionality of LAW ORG by ORG .

On DATE ORG dismissed the applicants’ pleas of nullity and the appeals of the second applicant and of the public prosecutor , but partly granted the appeals of the first applicant , the third applicant and PERSON The sentence imposed on the third applicant was added to a sentence previously imposed on him on of DATE ( ORG ) , and the sentences imposed on the first applicant and PERSON were reduced to DATE and DATE of imprisonment respectively .

With regard to the alleged violation of LAW , ORG found that LAW ORG should in general ensure that CARDINAL different official experts were not appointed in the preliminary proceedings and the trial , as this would result in delays in the proceedings . LAW CARDINAL of the ORG did not exclude a challenge for bias , except when it was merely argued with the fact that the expert had been appointed previously in the preliminary proceedings . The requests to appoint another expert had been dismissed by the court not on the grounds of LAW ORG but for other reasons . In fact , it had dismissed the requests because the applicants had not given valid reasons for their bias challenge . It had not been shown that the expert had a close relationship with the public prosecutor that would cast doubts on his objectivity .

NORP Moreover , the neutrality of the expert was ensured as he or she was obliged by law to act in an objective manner . His or her findings had to be based on facts established using scientific methods and principles . Criminal law ( perjury ) as well as the provisions on challenge for bias would ensure that his or her findings and conclusions were in accordance with the law . The expert was not part of the public prosecutor ’s office , and the results of the proceedings had no effect on his or her payment . In the event of a dispute between the public prosecutor and the accused about the amount of the expert ’s fees , it was up to the court to fix the amount and to pay the expert .

DATE . ORG also reasoned that in preliminary proceedings as well as in a trial , an accused could address written questions to the official expert and question him or her in court and , in so doing , the accused could be assisted by a privately appointed expert . ORG noted that the applicants had made use of this opportunity . In that way , the accused had an opportunity to show that the official expert ’s report contained errors or shortcomings . If those errors or shortcomings could not be corrected by the official expert , the court had to dismiss him or her and appoint another expert to draw up a report . Furthermore , the findings and conclusions of the official expert could be challenged even before the trial stage by lodging an objection ( PERSON ) against the bill of indictment , but this had not been done in the case at hand ( see paragraph CARDINAL above ) .

ORG rejected as inadmissible the first applicant ’s complaint that contacts between the public prosecutor and ORG had influenced the latter and rendered him biased vis - à - vis the accused as this complaint had not been submitted following the proper proceedings . It added , however that such a complaint was in any event ill - founded , since the initial contact between the public prosecutor and ORG merely had the purpose of clarifying under which conditions ORG would accept the task of drawing up an expert report and subsequent contacts consisted in supplementing the case file which had been transmitted to ORG for drawing up the report . Thus , it could not be seen how this kind of contact could give rise to doubts as to the neutrality of the expert .

ORG held further that the applicants in the present case had not used their opportunity to question the competence of GPE or to object to his appointment in the preliminary proceedings . Moreover , ORG had based its findings and decision primarily not on the expert report , but on PERSON ’s confession . Citing the ORG ’s case - law ( Brandstetter v. GPE , CARDINAL DATE , Series A no . CARDINAL ; PERSON GPE , DATE , Series A no . CARDINAL ; and GPE v. GPE , no . CARDINAL , DATE ) , ORG found that the applicants had had sufficient opportunities to question ORG during the hearing of CARDINAL DATE . Consequently , ORG had no doubt that the right to equality of arms in the trial had been maintained .

The written decision of ORG was served on the applicants on DATE .


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

The applicants were born in DATE and DATE respectively and live in GPE . They are spouses .

On DATE the first applicant , as a sole trader , took out a bank loan in order to purchase computers and to set up a computer club . The computer club was situated in a garage owned by the applicants . The second applicant assisted the first applicant in running the club and replaced him when he was absent .

When he started his business , the first applicant purchased CARDINAL computers and several computer games , which he installed on the computers . His customers were able to use the computers for CARDINAL NORP lev ( ORG ) per hour .

As the first applicant was renting the computers to his clients , he was obliged to pay the necessary licensing fees to the distributors of the companies that owned the copyright of the products . However , in DATE the first applicant failed to renew his contracts with the distributors .

On DATE the police conducted a check on the applicants’ premises and warned the first applicant to abstain from illegally reproducing and distributing software .

On DATE the director of the local sanitation department at ORG ordered that the computer club be closed down for health reasons .

NORP On DATE Mr GPE , a manager of a company that distributed computer games , lodged a complaint with the district prosecutor in GPE . Mr PERSON stated that he had visited the applicants’ computer club on several occasions in the period DATE . He claimed to have noticed that despite their lack of a software license for reproduction and distribution , the applicants had installed certain types of games on the computers and were renting them to their clients . Mr GPE mentioned specifically some of the games . He also claimed that the applicants had visited his office several times and had been aware of the requirements concerning reproduction and distribution of computer games . Lastly , he claimed that he had warned the applicants about the possible sanctions but had received only threats in response , especially from the second applicant .

In an order of CARDINAL DATE the district prosecutor noted that a complaint had been lodged by PERSON alleging that a crime had been committed under LAW of DATE ( see paragraph CARDINAL below ) . He further observed that there was insufficient information to justify the institution of criminal proceedings . Therefore , relying on section CARDINAL(CARDINAL)(CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) , he ordered the police to conduct an inquiry into the computer club in order to collect more information as to whether a crime had been committed under LAW CARDINAL . The prosecutor stated that when examining the computer club , in the event that the police officers established that software was being used illegally , they should take measures to secure the necessary evidence , including an onthespot inspection and search and seizure of the computers .

In executing the prosecutor ’s order , on DATE the police authorities drew up an action plan . A police officer with technological expertise would compare the software installed on the computers with the purchased software . In the event that discrepancies were found , the police would conduct a search and seizure . The operation was planned for DATE .

At TIME on DATE the police , including a police investigator ( дознател ) , arrived at the computer club . The applicants claimed that at that time the computer club had been closed to the public following the order of ORG ( see paragraph CARDINAL above ) . They submitted that they had been at the club with some friends and that the cash till had been on because the second applicant had just finished a typewriting job and had been paid for it .

NORP The police officers noted that the computers were running and that there were people in the club . They explained the aim of the inspection . It appears that the first applicant objected to the possible search and seizure , stating that the police did not have a judicial warrant , and asked for permission to contact a lawyer . The police apparently briefly pointed to the prosecutor ’s order of DATE . The first applicant was allowed to contact his lawyer but , according to the applicants’ submissions , the police refused to wait for the lawyer ’s arrival .

The police inspected the receipts from the club ’s cash till and the DATE sales record and concluded that the applicants had received money DATE , most probably for providing commercial services . The police then inspected the applicants’ CARDINAL computers and found that a number of computer games had been installed on them . The first applicant was invited to present documents , such as purchase invoices or any other evidence of his title to the games . As he failed to do so , the police seized the computers . The search - and - seizure operation ended at TIME

The search - and - seizure operation was carried out in the presence of CARDINAL certifying witnesses . The police drew up a report containing an inventory of the seized items , namely the computers and their content , which consisted of computer programs , computer games and films . The report was signed without comment by the certifying witnesses . The first applicant refused to comment on the report or to sign it .

On DATE the police investigator sent a letter to the district prosecutor informing the prosecutor of the results of the operation . She noted that following the search - and - seizure operation , criminal proceedings ( a police investigation ) had been instituted against the first applicant for illegal reproduction and distribution of software .

On DATE , at the request of the police investigator , a ORG judge approved the search - and - seizure operation on the basis of LAW ( “ the DATE Code ” ) . The judge described factually the course of the search - and - seizure operation and briefly cited the text of LAW , stressing that there had been pressing circumstances and that an immediate search and seizure had been the only means by which the collection and preservation of the necessary evidence could be undertaken . The decision was sent to the police in order to be enclosed with the case file as an integral part of the search - and - seizure record .

On DATE the first applicant lodged an application with ORG , requesting the court not to approve the searchandseizure record and arguing that a search and seizure had not been the only means by which the preservation of evidence could have been undertaken and that there had not been pressing circumstances . The first applicant also claimed that the computers contained letters as well as personal information about friends and clients . On DATE the application was returned to the applicant as inadmissible as the search and seizure had already been approved by a court decision , which was not subject to appeal .

On DATE both applicants submitted a request to the prosecutor for the return of the computers . They maintained that the computers contained private correspondence and personal information about themselves and their clients , and were also necessary for their other professional activities , namely providing typewriting services to the public . On DATE the district prosecutor refused to return the computers .

The first applicant sought judicial review , arguing again that the computers contained personal information and correspondence with different State entities . In a decision of DATE ORG upheld the prosecutor ’s order . It held that the computers were the subject of an expert examination and were necessary for the investigation . It found irrelevant the assertion that the computers contained personal information .

NORP In DATE the first applicant again sought the return of the computers . His request was rejected by the prosecutor and the court on DATE and DATE respectively on the grounds that the computers were necessary for the investigation . The applicant ’s assertions that the computers contained personal information and were necessary for his wife ’s business were not discussed . In DATE the applicant submitted the same request to the prosecutor , who again rejected it . The applicant submitted that the prosecutor had never forwarded his ensuing appeal against the rejection to the court .

On DATE the first applicant was charged , inter alia , with the unlawful distribution of computer programs , computer games and films . In a final judgment of DATE ORG upheld the first applicant ’s conviction . It held that the first applicant had lawfully acquired title to the computer games but that he had been distributing them illegally by renting the games to his clients . It also held that the first applicant had been illegally reproducing computer programs and films . The court found that the first applicant ’s conduct had led to significant damage . He was sentenced to DATE and CARDINAL months’ imprisonment suspended for DATE , and ordered to pay a fine in the amount of ORG CARDINAL . The computers were confiscated .


András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

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

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

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

The applicant is the father of PERSON , and PERSON , all of whom were born in wedlock in DATE , DATE and DATE respectively .

In DATE the applicant was living with his wife and his children in GPE .

At the request of the applicant ’s minor children , represented by ORG ( ORG für ORG und Familie ) , ORG ( PERSON ) issued on DATE an interim injunction for the duration of DATE ordering the applicant to leave the joint household and the immediate surroundings of the family ’s apartment , prohibiting him from returning to the apartment and contacting his wife and children , ordering him to avoid any meetings with them , and banning him from the children ’s kindergarten .

Having heard the children ’s mother , the applicant and a social worker , the ORG noted that the children ’s mother had alleged repeated sexual abuse by the applicant in respect of his eldest daughter ( then DATE ) and had testified that she had found skin abrasions on her daughter and that on CARDINAL occasion her genital area had been smeared with blood . The applicant had denied any misconduct . ORG also took into account the findings of an initial examination of the applicant ’s eldest daughter by a clinical psychologist at a children ’s hospital in GPE . The girl had told the psychologist that she had suffered severe abuse at the hands of her father and had illustrated graphically what she had meant using anatomically correct puppets . ORG found the girl ’s mother ’s testimony in respect of the events clear , credible and trustworthy . Overall , the seemingly substantiated allegations of extensive sexual abuse by the applicant indicated a real risk for the children ’s wellbeing . The child had been taken into psychological care . Since the children and their mother had a need to be provided with housing , the court ordered the applicant to leave the joint apartment . The applicant did not lodge an appeal against this decision . Therefore , it became final .

On DATE the applicant ’s wife brought an action for divorce .

In DATE the children , at the time represented by their mother , lodged a request for the extension of the interim injunction ; the ORG , referring to the case file and to the pending criminal investigation in respect of the applicant ( see paragraph CARDINAL below ) , on DATE granted that request and extended the interim injunction until the conclusion of the divorce proceedings . The applicant did not lodge an appeal against this decision .

In addition to the request for an interim injunction against the applicant , ORG filed criminal information with ORG that was based on information supplied by the children ’s mother and the report of the psychologist ( see paragraph CARDINAL above ) . The applicant was indicted on charges of sexual abuse of minors and abuse of a relationship of authority by ORG . The child , represented by a lawyer , took part in the criminal proceedings as a private party ( Privatbeteiligter ) . On DATE ORG ( PERSON für PERSON ) acquitted the applicant of the charges of sexual abuse of minors and abuse of a relationship of authority . It found that the witnesses heard in the course of the oral hearing had not been able to verify the suspicions . Furthermore , a psychological expert , ordered by the court to examine the applicant ’s daughter , had stated that the child ’s ability to recount past events or experiences was not sufficiently developed . Therefore , the criminal court declined to hear the child , even with the assistance of an expert . Because of the lack of evidence , the criminal court could not determine the relevant facts in regard to the accusations . The applicant was acquitted , having been given the benefit of doubt . This decision became final .

On DATE the applicant , referring to his acquittal , lodged a request with ORG for the lifting of the interim injunction . However , on DATE , the ORG refused that request . It found that a request under section CARDINAL of LAW to lift an interim injunction ( see paragraph CARDINAL below ) could only be successful if the need to protect the legitimate interests of the person concerned had ended . This would be the case if the circumstances which had made the granting of the decision necessary had changed . However , ORG had acquitted the applicant , pursuant to LAW , hereinafter , the CCP – see paragraph CARDINAL below ) , only because the applicant ’s guilt could not be established by a criminal court . However , the applicant had supported his request solely by referring to his acquittal and had not tried to demonstrate to ORG why and how any risk to the children had ceased to exist . Therefore , there was no reason to lift the interim injunction .

NORP The applicant lodged an appeal with ORG ( PERSON für PERSON - the “ ORG ” ) on DATE . On DATE ORG dismissed the appeal , finding that – contrary to the applicant ’s belief – his acquittal in the criminal proceedings was not in and of itself sufficient to substantiate the absence of the perceived risk that had served as the basis for the interim injunction . ORG noted that an acquittal rendered by the criminal courts had no binding effect on the civil courts . In and of itself , the applicant ’s reference to his acquittal was not sufficient to prove that the basis for believing that the applicant ’s children were at risk had ceased to exist . ORG upheld ORG finding that the objective of the interim injunction DATE namely to secure the well - being of the children – had not become redundant , referring again to the fact that the acquittal had only resulted from the application of the in dubio pro reo principle , and that there still existed a suspicion of sexual abuse ; this sufficed to justify the assumption that there continued to be a risk to the wellbeing of the child . Furthermore , the applicant had based his appeal only on the alleged binding force of the acquittal and had not submitted any facts why the risk would have ceased to exist by a change in the situation .

The applicant lodged an extraordinary appeal on points of law . On DATE ORG ( Oberster Gerichtshof ) dismissed that appeal . Referring to its own jurisprudence it upheld the reasoning of the lower courts that whether an interim injunction could be lifted depended on whether the need to afford protection had ceased to exist in the light of a change in circumstances ; a change concerning only the evidence provided could not be automatically understood as constituting such a reason . The question of whether the applicant ’s acquittal had changed the level of risk in respect of the right of the child to physical safety had to be answered in the negative . The assessment of evidence in the criminal proceedings had to be considered as fresh evidence in the civil proceedings but did not as such constitute a reason for lifting the interim injunction . If , after assessing the fresh evidence , the suspicion of abuse persisted , the level of risk could not be deemed to have changed .

ORG also confirmed that an acquittal on criminal charges had no binding effect on the civil courts . As regards those of the applicant ’s arguments that were based on LAW , it referred to ORG PERSON case - law , in particular the judgment in GPE v. GPE ( no . DATE ) , but distinguished that case from the present one : in GPE , the ORG had assumed a link between the criminal responsibility of the accused and the right to compensation for detention to such a degree that the decisions on the latter issue could be regarded as a consequence and , to some extent , the concomitant of the decision on the former ( ibid . , § CARDINAL ) . However , in the present case such a link was missing with regard to the civil jurisdiction because ( i ) the criminal proceedings concerned a public law claim , and ( ii ) the accused ’s opponent was the ORG . The victim of the criminal act in question was not a party to the proceedings and in general , the criminal courts did not rule on ORG claims for damages . A binding effect of an acquittal on civil courts would constitute a violation of the principle of equality of arms LAW of the victim if he or she tried to lodge subsequently a claim for damages before the civil courts . The distinction between civil and criminal matters resulted from the different subjects dealt with . The binding effect of a conviction was justified by the fact that in such a case a criminal court had established the accused ’s responsibility and guilt . However , in the case of an acquittal , the establishment of the facts remained open . To then prevent the victim from pursuing a possible civil claim would represent a violation of the victim ’s fundamental rights . In the instant case , the acquittal could therefore only serve as an indication of a diminution of the risk for the children , but no more .

On DATE the divorce proceedings were concluded with final effect . On CARDINAL DATE the ORG refused a request for the extension of the interim measure and lifted it .

In addition to his request for the interim injunction to be lifted , the applicant on DATE lodged a request with ORG for regular contacts to be arranged between himself and his CARDINAL children at ORG ; alternatively , he requested the provisional arrangement of a weekly visiting right , to be exercised at the parent - child - meeting point ( NORP - Kind - Treff ) of ORG ( PERSON ) .

For the purpose of being able to assess the situation , ORG ordered a report from the ORG and ORG on DATE . On CARDINAL DATE – the Youth and ORG having failed to deliver such a report – the court urged it to do so .

On DATE ORG submitted the report , stating in its conclusion that contact between the children and their father was very important , but that , in view of the problematic overall situation , the visits should take place in the protected environment of ORG . The mother had initially opposed the idea of the applicant having contact with the children , but had then stated that she could agree to accompanied visits in a protected environment and in her presence . The applicant had referred to his acquittal and stated his desire to reestablish a relationship with his children . The social worker confirmed that the children were living in a safe and healthy environment with their mother , but also referred to the importance of a relationship between the children and their father . Regular contact every fortnight would offer the children a good opportunity to become re - acquainted with their father and was thus considered positively by the social worker . On DATE the report of the Youth and ORG arrived at the court and was subsequently served on the applicant .

In a hearing before the ORG on DATE , the applicant and the children ’s mother agreed on a preliminary settlement with the following provisions : preliminary sole custody for the CARDINAL minor children was granted to the children ’s mother . The applicant was granted the right to regular accompanied contact – normally DATE for TIME on the premises of ORG . The visits were also attended by the children ’s mother and a social worker from the ORG . Because of this agreement , the proceedings in respect of contact rights were suspended pending a final decision in the divorce proceedings .

On DATE the applicant and his former wife agreed before ORG on the staying of the proceedings in respect of custody , contact rights and alimony ( PERSON ) . The applicant informed the ORG that since DATE he and his former wife had agreed amicably on arrangements for the applicant ’s contact with his CARDINAL children . The applicant , in the meantime , had moved to GPE and travelled to GPE during the school holidays in order to see his children .

Under LAW § CARDINAL of the ORG , a victim of a criminal offence could join criminal proceedings as a private party ( PERSON ) only with regard to his or her civil claims . Such a private party was , inter alia , entitled to have access to the various case files from the pre - trial stage onwards , had to be summoned to the hearings , and could submit evidence to ORG .

Article CARDINAL § CARDINAL of the ORG provided as follows :

“ The accused shall be acquitted by judgment of the court :

where the court finds that the act that gave rise to the prosecution is not an offence under the law or that the alleged offence has not been made out or that it has not been established that the accused committed the act of which he is accused or that circumstances exist which deprive the act in question of its criminal character or that the continuation of the prosecution is ruled out on grounds other than those set out in DATE and CARDINAL . ”

In the event of an acquittal , a private party was not entitled to a remedy in criminal proceedings . Under LAW ORG the criminal court had to refer such a private party to the civil courts in respect of his or her claim for damages if the accused had been acquitted ( PERSON auf den Zivilrechtsweg ) .

Article CARDINAL of the Code of Civil Procedure ( GPE ) provided that civil courts , when deciding a case which had previously been submitted to a criminal court , were bound by the facts established by a criminal court in the event that that court had found the accused guilty . This provision was found to be contrary to LAW ( decision of CARDINAL DATE , no . GCARDINAL/CARDINAL ) . ORG stated that a criminal conviction to be binding on a civil court was arbitrary and therefore contrary to LAW . Therefore , ORG set aside the provision .

In its decision of CARDINAL DATE , no . CARDINAL Ob CARDINAL , ORG found , after conducting a comprehensive analysis of the legal arguments raised in national and international academic debate , that , even in the absence of an explicit provision stipulating the binding effect of criminal convictions , a convicted person must accept his conviction by a criminal court as an established fact and shall not be entitled to argue before a civil court that he did not commit the offence of which he was convicted . Therefore , a conviction by a criminal court should have a binding effect with regard to the convicted person , so that nobody might argue that the facts differed from the ones already established and which had been the basis for that criminal conviction .

In its decision of DATE , no . CARDINAL Ob CARDINAL/CARDINALa , ORG confirmed the principles outlined in its decision of DATE and elaborated on the question of whether civil courts should be bound by the findings of a criminal court when proceedings heard by that criminal court had ended with an acquittal . It found that because of the weak position the ORG granted to a private party in criminal proceedings , it would violate the victim ’s rights under LAW if the outcome of criminal proceedings were to have a binding effect on civil law proceedings ( that is to say if civil courts were to be bound by the findings of a criminal court ) . For example , a private party had no remedy against the acquittal of an accused . Moreover , under LAW ORG ( see paragraph CARDINAL above ) , the criminal court had to refer a private party to the civil courts in respect of his or her claim for damages if the accused was not convicted . This provision would be meaningless if the victim of an offence were to be referred to the civil courts in respect of his claim for damages but had to accept the finality of the acquittal in the subsequent civil proceedings . Therefore , an acquittal in criminal proceedings could have no binding effect in civil law proceedings dealing with the same circumstances .

In the following decisions , ORG further developed its case - law on this question and found that neither the ending of criminal proceedings by preliminary settlement ( Diversion , decision of DATE , no . CARDINAL Ob DATE ) nor by final closure of the case by ORG ( Verfahrenseinstellung , DATE , no . CARDINAL ObA CARDINAL/CARDINALp ) had a binding effect regarding the facts of the case on civil law proceedings and that the civil courts had to establish anew all the facts of the case .

Interim injunctions for the purpose of the prevention of violence within the family were a civil law matter under NORP law , as laid down in LAW ( Exekutionsordnung ) .

NORP Since provisional legal protection had to be provided without delay , the prerequisites for ordering an injunction needed only to be certified ( bescheinigen ) , which meant to show predominant probability but they did not need to be proved beyond reasonable doubt ( beweisen ) . The degree of plausibility of the circumstances supporting a request for an injunction was thus less strict than in the criminal proceedings . It was sufficient for the party requesting the injunction to submit details of the circumstances from which the existence of the alleged risk could reasonably be assumed ( section CARDINAL of LAW , in connection with LAW ) . Under section CARDINAL of LAW certain parts of the provisions of LAW ( such as the provisions dealing with the parties , the oral hearing or the finding of facts ) were applicable if LAW did not provide otherwise . Persons affected by an interim injunction had the right to lodge an appeal ( PERSON , see LAW ) .

Section CARDINALb § CARDINAL of LAW , as in force at the relevant time , provided as follows :

“ The court is required to act upon a request [ lodged ] by a near relative ( naher Angehöriger ) of a person who launches or threatens to launch a physical attack or displays conduct severely affecting the psychological health of the near relative , thus making further cohabitation unbearable for the relative . In such a case , the court must

order that person to leave the common flat and its immediate surroundings , and

prevent that person from returning to the flat and its immediate surroundings , if the flat serves the near relative ’s urgent need of accommodation . ”

Under paragraph CARDINAL of this provision , a court could also prohibit such a person from staying in clearly defined areas and order him or her to avoid meeting and coming into contact with the near relative unless this would have run counter to the serious interests of the person .

Under paragraph CARDINAL of this provision , such an interim injunction was not limited to proceedings for divorce or the annulment of a marriage ; however , in respect of proceedings that did not concern divorce or annulment such an interim injunction could not exceed a total duration of DATE . The institution of such divorce proceedings or proceedings for the annulment of a marriage was a prerequisite for an extension beyond the above - mentioned DATE limit .

Section CARDINAL of LAW listed the following conditions for the amendment or lifting of an interim injunction :

“ CARDINAL . if the order exceeds the scope that is necessary to secure the interests of the person in whose favour the order was granted ;

Given that there were remedies ( Widerspruch , PERSON ) by which to contest a decision within the proceedings for granting an interim injunction , the amendment or lifting of an interim or “ final ” injunction under section CARDINAL of LAW could not be requested on the basis of a claim that the interim injunction had been issued unlawfully ( decisions of ORG of DATE , no . CARDINAL Ob CARDINAL/CARDINAL t , and of DATE , no . CARDINAL Ob CARDINAL/CARDINAL t ) . Moreover , because the aim of an interim injunction was not to examine a past but to pre - empt a future risk , a review ex post facto of the proceedings in respect of the granting of an interim injunction was not possible ( ORG decisions of DATE , no . CARDINAL Ob CARDINAL/CARDINAL , and of CARDINAL DATE , no . CARDINAL Ob CARDINAL t ) .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

The applicants complained of the excessive length of their pre - trial detention .


No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nullum crimen sine lege;Time when act or ommission was committed)

Aleš Pejchal;André Potocki;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Mark Villiger;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano

The applicant was born in DATE and lives in GPE .

On DATE the applicant was formally indicted by the GPE municipal prosecutor for having , DATE and DATE , repeatedly physically and mentally abused his wife while he was drunk . He was accused of having subjected her to verbal abuse , hit her on the head with his hand and fist , slapped her , held her by the throat , tried to strangle her , thrown her against the furniture or onto the ground , pushed her down stairs and kicked her . He was further accused of having hit the children , gambled away the household ’s money on gaming machines and smashed the crockery . As a result , his wife had sustained haematomas , bruising and a fractured nose and had been obliged to seek medical assistance on that account on DATE , DATE and DATE , following assaults committed on DATE , DATE and DATE respectively . The applicant had allegedly sought to undermine his wife psychologically in order to control her . According to the prosecutor , the applicant had thus committed the “ continuing ” criminal offence ( trvající trestný čin ) of abusing a person living under the same roof within the meaning of Article CARDINALa § § CARDINAL and CARDINAL(b ) of LAW , given that his conduct prior to the introduction of that offence on DATE had amounted to the offence of violence against an individual or group of individuals under Article CARDINALa of the Criminal Code and assault occasioning bodily harm under LAW .

On DATE ORG found the applicant guilty of the offence of abusing a person living under the same roof , committed DATE and DATE , as described in the bill of indictment , which also referred to the fact that the abuse had occurred repeatedly . It sentenced him to a suspended term of DATE years’ imprisonment and placed him on probation for DATE . The applicant was also placed under supervision and ordered to undergo treatment for alcohol dependency . The court based its decision on the statements given by the applicant , the victim ( his wife ) and several witnesses , including the couple ’s CARDINAL children DATE who reported , among other incidents , CARDINAL instances of the applicant verbally insulting his wife , CARDINAL instances of the applicant grabbing his wife by the arms and strangling her , and verbal and/or physical assaults committed by the applicant on his wife at DATE intervals DATE and on documentary evidence and expert reports . It also took into account the fact that the applicant had confessed to quarrels and physical violence in his relationship with his wife ; he admitted in particular that he had sometimes slapped his wife or hit her with his fist .

The court adopted the classification of the offence as abuse of a person living under the same roof within the meaning of LAW and CARDINAL(b ) of LAW as in force since DATE , taking the view that this classification also extended to the acts committed by the applicant prior to that date since they had been punishable at the material time and amounted at least to the offence of violence against an individual or group of individuals under Article CARDINALa of the Criminal Code . Lastly , the court considered that , owing to the duration of the conduct in question , the offence committed in the present case presented a relatively high degree of danger which justified a sentence ranging from DATE imprisonment under paragraph CARDINAL of Article CARDINALa of LAW . Taking into consideration the extenuating circumstances ( in particular the fact that the applicant had confessed and that he had no previous convictions ) , it imposed a suspended sentence situated at the lower end of the range .

On DATE ORG dismissed an appeal by the applicant in which he contested the facts as established by ORG and the unilateral assessment of the evidence . ORG found no defects in the previous proceedings and considered that the classification of the applicant ’s conduct was in conformity with the provisions of LAW .

On DATE ORG dismissed as manifestly illfounded an appeal on points of law lodged by the applicant in which he complained that the trial court had applied LAW even to his conduct prior to DATE , when the offence of abuse had not yet existed in domestic law . On this point ORG noted , referring to its ruling PERSON CARDINAL/CARDINAL of DATE , that where there was , as in the case at hand , a “ continuation of the criminal offence ” ( pokračování v trestném činu ) , which was considered to constitute a single act , its classification in criminal law had to be assessed under the law in force at the time of completion of the last occurrence of the offence . That law therefore also applied to the earlier acts , provided that these would have amounted to criminal conduct under the previous law . In the instant case ORG considered that the applicant ’s conduct prior to the amendment of LAW on DATE had amounted at least to an offence punishable under Article PERSON or Article CARDINAL § CARDINAL of LAW . After having examined the file it also concluded that the accused ’s actions as described in the operative part of the first - instance court judgment disclosed all the legal elements of the offence of abusing a person living under the same roof within the meaning of LAW and CARDINAL(b ) of LAW . Concerning the continuation of the offence , ORG noted that the abuse itself amounted to ill - treatment characterised by a certain duration . For the offence to be regarded as having continued over a long period of time it had to have lasted for DATE . As the applicant had perpetrated the offence in question DATE until DATE , that is , over a period of DATE , his conduct certainly disclosed the material element of continuation of the offence of abuse under LAW ) of LAW .

On DATE ORG dismissed as manifestly ill - founded a constitutional appeal lodged by the applicant in which he complained that the proceedings had been unfair and that LAW had been applied retroactively , to his detriment . Referring to the ruling of ORG and to its relevant case - law , ORG held that the decisions given by the courts in the present case had been logical and coherent and had not had any retroactive effect prohibited by LAW .

As the applicant committed another offence while on probation and did not undergo any treatment for his alcohol dependency , he was required to serve the prison sentence imposed by the judgment of DATE . He began serving his prison sentence on DATE . According to the Government , he was granted conditional release on CARDINAL DATE .


CASE OF PUKHACHEV AND ZARETSKIY v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants complained of the inadequate conditions of detention during their transport .