CASE OF AZIENDA AGRICOLA SILVERFUNGHI S.A.S. AND OTHERS v. ITALY

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary damage - award;Non-pecuniary damage - award

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicants are agricultural firms operating in northern and/or disadvantaged areas in GPE as defined in the relevant NORP laws .

In DATE the NORP legislator instituted a series of norms to favour economic activity in general and , more specifically , agricultural activity .

More precisely , LAW no . DATE ( Legislative Decree no . CARDINAL of CARDINAL DATE ) ( see “ Relevant domestic law ” , below ) provided a concession ( fiscalizzazione ) , namely , that as of DATE the ORG would bear a portion of the contributions paid by employers in the agricultural sector for the purposes of LAW no . CARDINAL in respect of each employee .

Furthermore , Article CARDINAL(CARDINAL ) of Law No . CARDINAL of DATE ( ORG finanziaria DATE ) ( see “ Relevant domestic law ” below ) introduced a system of exemptions ( sgravi contributivi ) in respect of payments for the purposes of premiums and contributions related to welfare and assistance . Such payments were due in the measure of PERCENT ( PERCENT ) by employers in the agricultural sector in northern regions and PERCENT ( PERCENT ) by employers in the agricultural sector working in disadvantaged agricultural zones in the south of GPE .

According to the applicant companies , Article CARDINAL ) of PERSON No . CARDINAL of DATE ( see “ Relevant domestic law ” below ) indicated that the latter benefit was not alternative to the one provided for by PERSON no . DATE . That sub - article specified that for the purposes of the calculation of the exemption mentioned above , the concession was not to be taken into account . This , they considered , was also clear from the explanatory memorandum ( scheda di lettura ) to the law ( see “ Relevant domestic law ” below ) .

Following further normative changes DATE , the burden to be taken over by the ORG amounted to the following :

a ) MONEY ( MONEY ( ORG ) ) per employee for CARDINAL DATE salaries ;

b ) a global CARDINAL percentage points for exemptions in respect of contributions for the purposes of TBC ( Tuberculosis ) , ORG ( ORG ) and the ORG ( ORG ) ;

c ) a global CARDINAL percentage points for exemptions regarding the said contributions in respect of labourers and CARDINAL percentage points for employees and directors , as from DATE .

Despite the law , by circular no . CARDINAL of DATE ORG ( “ LAW ” ) , an NORP welfare entity , considered that the CARDINAL benefits ( concession and exemption ) could not be accumulated and had to be considered as alternative .

NORP In fact , the applicant companies benefited only from the exemption ( sgravi contributivi ) and not from the concession ( fiscalizzazione ) . They considered that this interpretation was contrary to what was provided for in the law .

Indeed , from DATE a number of agricultural firms ( in particular FAC ) instituted proceedings ( following administrative refusals ) complaining about the matter , and consistent case - law in favour of the agricultural firms was established by the NORP courts , including ORG . The applicant companies submitted that DATE more than CARDINAL first - instance judgments and CARDINAL appeal judgments on the same subject matter had been delivered , together with CARDINAL ORG judgments ( see “ Relevant domestic law and practice ” , below ) finding in favour of the agricultural firms .

In this light , in DATE the applicant companies instituted proceedings as explained below . Pending these judicial proceedings Law no . CARDINAL of CARDINAL DATE ( hereinafter LAW no . PERSON ) was enacted ( see “ Relevant domestic law ” below ) , providing that the benefits could not be accumulated .

By judgment no . CARDINAL of DATE ORG considered that PERSON no . PERSON was legitimate and not unconstitutional ( see “ Relevant domestic law and practice ” below ) .

On DATE the applicant company requested the ORG to return the monies which it had held contrary to what was provided for by law when it failed to apply the concession in its respect , for the period DATE and DATE , amounting to MONEY ( approximately EUR CARDINAL,CARDINAL ) plus interest and subject to revaluation .

The ORG ’s failure to reply amounting to an implicit rejection ( silenzio - rifiuto ) , on DATE the applicant company instituted an administrative procedure before the ORG . The latter again failed to reply .

Thus , on DATE the applicant company instituted judicial proceedings to recover the monies due ( as mentioned above ) for the period not covered by prescription ( DATE onwards ) .

By a judgment ( no . CARDINAL ) of CARDINAL DATE ORG found in favour of the applicant company . Considering that the CARDINAL benefits could be accumulated and that the applicant company had paid the relevant dues , it ordered the ORG to pay back the misappropriated sums ( from DATE ) , with interest and subject to revaluation , and to pay its share of the costs of the proceedings .

By a judgment ( no . CARDINAL/CARDINAL ) of DATE filed in the relevant registry on DATE ORG dismissed the ORG ’s appeal and upheld the first - instance judgment .

Following the entry into force of Law no . CARDINAL/CARDINAL the ORG appealed to ORG .

The applicant company cross - appealed , arguing that the application of PERSON no . CARDINAL of CARDINAL DATE to its case would amount to a violation of LAW and a violation of LAW in so far as it obliged the ORG to abide by LAW , a matter which had not been considered at all by ORG in its judgment of DATE .

By a judgment ( no . CARDINAL/CARDINAL ) filed in the relevant registry on CARDINAL DATE the ORG ’s appeal was allowed by ORG on the basis of PERSON no . CARDINAL/CARDINAL . The remaining grounds of appeal were dismissed on the basis that PERSON no . CARDINAL/CARDINAL had an authentic interpretative nature and was therefore only apparently retroactive , it having now been given the original intended meaning of the law . Indeed , as a thorough examination of the relevant laws revealed , the benefits at issue could not be awarded cumulatively ; rather , one had to identify the most favourable benefits to a firm according to its specific position . Furthermore , the ORG had legitimate discretion to decide whether benefits could be granted cumulatively or not , thus no issue relating to a fair trial could be considered to arise . Each party was to bear its own costs for the entire proceedings .

On DATE and again on DATE the applicant company requested the ORG to return the monies which it had witheld contrary to what was provided for by law when it failed to apply the concession in its respect , for the period DATE and DATE , amounting to MONEY ( approximately ORG CARDINAL,CARDINAL ) plus interest and subject to revaluation .

Thus , on DATE the applicant company instituted judicial proceedings to recover the monies due ( as mentioned above ) for the period not covered by prescription .

By a judgment ( no . CARDINAL/CARDINAL ) of CARDINAL DATE ORG found in favour of the applicant company . Holding that the CARDINAL benefits could be accumulated and that the applicant had paid the relevant dues , it ordered the ORG to pay back the misappropriated sums ( from DATE onwards , the date on which prescription was interrupted ) , with interest and subject to revaluation , and to pay its share of the costs of the proceedings .

By a judgment ( no . CARDINAL ) of DATE filed in the relevant registry on DATE ORG dismissed the ORG ’s appeal and upheld the first - instance judgment .

Following the entry into force of Law no . CARDINAL of CARDINAL DATE the ORG appealed to ORG .

The applicant company cross - appealed along the lines mentioned above .

By a judgment ( no . CARDINAL ) filed in the relevant registry on DATE the ORG ’s appeal was allowed by ORG on the basis of PERSON no . CARDINAL of CARDINAL DATE . The remaining grounds of appeal were dismissed for the same reasons outlined above . Each party was to bear its own costs for the entire proceedings .

On DATE and DATE the applicant company requested the ORG to return the monies which it had withheld contrary to what was provided for by law when it failed to apply the concession in its respect , for the period DATE and DATE , amounting to MONEY ( approximately EUR CARDINAL,CARDINAL ) plus interest and subject to revaluation .

The ORG failed to reply .

By a judgment ( no . CARDINAL/CARDINAL ) of DATE ORG found in favour of the applicant company . Considering that the CARDINAL benefits could be accumulated and that the applicant had paid the relevant dues , it ordered the ORG to pay back the misappropriated sums , with interest and revaluation ( from DATE , the date of its administrative claim , DATE ) , together with the full costs of the proceedings .

On DATE the applicant company requested the ORG to return the monies which it had withheld contrary to what was provided for by law when it failed to apply the concession in its respect , for the period DATE and DATE , amounting to MONEY ( approximately EUR CARDINAL,CARDINAL ) plus interest and revaluation .

The ORG ’s failure to reply amounting to an implicit rejection ( silenzio - rifiuto ) , on CARDINAL DATE the applicant company instituted an administrative procedure before the ORG . The latter again failed to reply .

By a judgment ( no . CARDINAL/CARDINAL ) of CARDINAL DATE ORG found in favour of the applicant company . Considering that the CARDINAL benefits could be accumulated and that the applicant had paid the relevant dues , it ordered the ORG to pay back the misappropriated sums , with interest and subject to revaluation ( from DATE TIME ) , and to pay its share of the costs of the proceedings .


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Alena Poláčková;Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Georgios A. Serghides;Guido Raimondi;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Nona Tsotsoria;Paul Lemmens;Síofra O’Leary;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in PERSON ( GPE ) .

On DATE , the applicant ’s father - in - law , Vu . PERSON , represented by his wife GPE , concluded a contract with ORG of his house in GPE for a house in GPE ( GPE ) .

Vu . PERSON died on an unknown date DATE .

On DATE the applicant ’s husband ORG , who was a son of Vu . PERSON , represented by a certain PERSON from ORG ) , brought a civil action in ORG ( PERSON ) against ORG ’s heirs and PERSON , seeking to have the contract for the exchange of the houses declared null and void and to obtain the possession of the house in GPE . PERSON was a practising lawyer in GPE .

M.Z. claimed that the contract had contained incorrect information with regard to the legal status of the house in GPE and that ORG had not had the necessary authorisation to sign such a contract . He further alleged that the contract had been signed under duress because of circumstances arising from the war in GPE . He also submitted that the difference in the values of the properties exchanged had been disproportionate in that the house in GPE was worth MONEY ( ORG ) and the house in GPE some EUR CARDINAL,CARDINAL - CARDINAL,CARDINAL . Lastly , he stressed that it had been impossible for him to regularise his ownership of the house in GPE due to the irregularities in the contract .

NORP In his action , ORG indicated the value of the subject matter of the dispute ( vrijednost predmeta spora ) at CARDINAL NORP kunas ( HRK ) ( approximately ORG CARDINAL,CARDINAL at the time ) .

On DATE ORG ( hereafter : “ the ORG ” ) invited ORG to clarify the circumstances relating to his legal representation , in particular by providing a valid power of attorney , and to provide some further documents concerning his claim .

A first hearing in the case was held on DATE . At that hearing , ORG instructed ORG to provide documents attesting to his standing as heir of Vu . Z.

Further to this hearing , the parties exchanged pleadings and documentary evidence requested by ORG .

At a hearing on DATE the respondents insisted that the issue of ORG ’s representation by ORG needed to be clarified . The latter stated that he would no longer represent ORG , who would instruct a lawyer in GPE to represent him .

A further hearing was held on DATE . ORG was represented by GPE , a lawyer practising in GPE ( who is also representing the applicant in the current proceedings before ORG ) . At the hearing , the lawyer GPE corrected some clerical omissions in the civil action and reiterated the arguments for declaring the contract null and void as set forth in the civil action , namely that the contract had been signed under duress , that the legal status and ownership of the house in GPE had not been properly stated and that there had been a disproportionate difference in the value of the properties . In reply to a question by the trial judge concerning the validity of the power of attorney issued by Vu . PERSON to his wife GPE ( see paragraphs CARDINAL and CARDINAL above ) , GPE stressed that he did not consider that power of attorney to be invalid as an original had been deposited in the relevant register . The respondents challenged the arguments advanced on behalf of ORG on the basis that there were no grounds for declaring the contract null and void .

At a hearing on DATE the lawyer GPE explained that following the termination of the hearing he would no longer represent ORG , who would in future be represented by the applicant ( his wife ) . At the same hearing , GPE submitted CARDINAL documents . In the first he requested that the validity of the power of attorney issued by Vu . PERSON to his wife GPE ( see paragraphs CARDINAL , CARDINAL and DATE above ) be examined on the grounds that there were doubts as to its authenticity . In the same document he asked that a preliminary measure ( injunction ) be issued preventing any disposal of the property in dispute . In the second document he explained that the value of the subject matter of the dispute had been set too low , and indicated the new value of the subject matter of the dispute at HRK CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL at the time ) .

At the same hearing , the respondents contested the suggestion that there was any issue with the validity of the power of attorney , pointing out that at a hearing held on DATE GPE had not challenged that validity . The respondents also opposed the request for an injunction . Finally , they objected to the change of the value of the subject matter of the dispute , arguing that it had been increased only in order to enable the claimant to lodge an appeal on points of law .

After hearing the parties’ pleas , ORG questioned the respondents as witnesses . Following their questioning , at ORG ’s request ORG adjourned the hearing in order to obtain the original of the impugned power of attorney and reserved its decision on the request for an injunction . No decision was adopted with regard to the change of the value of the subject matter of the dispute .

On DATE ORG ordered ORG to pay court fees of HRK CARDINAL,CARDINAL ( approximately ORG CARDINAL at the time ) for bringing the civil action . It assessed the fees by reference to a value of the dispute set at HRK CARDINAL,CARDINAL .

At a hearing on DATE ORG examined the materials available in the file , following which it concluded the hearing .

By a judgment of DATE ORG dismissed ORG ’s claim and the request for an injunction . It found that despite repeated attempts to summon ORG to the hearing , he had failed to appear without providing any valid reasons . Also , in the light of the parties’ arguments , including on the issues regarding the power of attorney on the basis of which the contract had been concluded , it found no grounds to doubt the validity of the contract . ORG ordered that ORG was to bear all the litigation costs , including the expenses of the opposing parties , in the amount of HRK CARDINAL,CARDINAL.CARDINAL ( approximately LAW at the time ) . It assessed the costs of the proceedings by reference to the value of the subject matter of the dispute indicated at the hearing on DATE , namely HRK CARDINAL . The relevant part of the judgment reads as follows :

“ ... [ T]he costs of the proceedings were awarded to the respondents [ and assessed ] according to ... the value of the dispute indicated by the claimant ( HRK CARDINAL NORP ( page CARDINAL [ of the case - file ] ) which this court accepted . ”

On DATE the first - instance court ordered ORG to pay court fees of HRK CARDINAL,CARDINAL for the judgment . It also assessed these fees by reference to a value of HRK CARDINAL for the dispute .

By judgment of CARDINAL DATE ORG ( PERSON ; hereafter : “ the ORG ” ) dismissed an appeal by ORG and upheld the first - instance judgment . The relevant part of that judgment reads as follows :

“ In view of the fact that the [ first - instance judgment ] is challenged in its entirety , thus including also the decision on the costs of the proceedings , and although the appeal is not specified in that respect , [ it is to be noted that ] the decision on the costs of the proceedings is based on the relevant law and adequate reasons are provided . ”

On DATE ORG lodged an appeal on points of law ( revizija ) with ORG challenging the findings of the lower courts .

On DATE ORG died . The proceedings were taken over by his wife PERSON , the applicant , as his heir .

By a decision of CARDINAL DATE ORG declared the appeal on points of law inadmissible ratione valoris , finding that the value of the subject matter of the dispute was below the statutory threshold of HRK CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL at the time ) . It held that the applicable value of the subject matter of the dispute was that set out in the claimant ’s statement of claim in the civil action . The relevant part of that decision reads as follows :

“ With regard to section CARDINAL ( CARDINAL ) of LAW if , in a situation referred to in subsection CARDINAL , it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low , so that an issue arises concerning jurisdiction over the subject matter , the composition of the court , the type of proceedings , the right to lodge an appeal on points of law , the authorisation for representation or the costs of proceedings , the court shall , ex officio or upon the objection of the respondent , by the latest at the preparatory hearing or , if no preparatory hearing has been held , at the first session of the main hearing before the respondent has begun litigation on the merits of the case , quickly and in an appropriate manner verify the accuracy of the value specified and , by a decision against which no separate appeal is allowed , determine the value of the subject matter of the dispute .

It follows that when an action does not concern a sum of money the claimant is obliged to indicate the relevant value of the subject matter of the dispute in the civil action , after which the claimant is not allowed to change the [ indicated ] value of the dispute . Only a court may set the value of the subject matter of the dispute , ex officio or if an objection is raised by the respondent , if it establishes that the value indicated in the civil action is too high or too low , by the latest at the preparatory hearing or , if no preparatory hearing has been held , at the main hearing before the examination of the merits .

In the present case the value of the subject matter of the dispute indicated in the statement of claim is CARDINAL NORP kunas .

Later on , at the hearing of DATE , the claimant ’s representative indicated the value of the subject matter of the dispute at CARDINAL NORP kunas considering that it had been indicated too low in the civil action . However , the claimant did not amend the claim at the same time . The first - instance court did not adopt a decision on a new value for the dispute because the procedural requirements under LAW ( CARDINAL ) of the CPA [ LAW ] were not met .

It follows that the relevant value of the subject matter of the dispute is the one indicated by the claimant in the civil action , namely CARDINAL NORP kunas , because the claimant was not allowed to change the indicated value if he did not amend his claim at the same time . ”

By a decision of CARDINAL DATE ORG summarily declared a constitutional complaint by the applicant , complaining , inter alia , of a lack of access to ORG , inadmissible on the grounds that the case raised no constitutional issues . On DATE it served its decision on the applicant ’s representative .


Preliminary objection joined to merits and dismissed (Article 34 - Victim);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The first applicant was born in DATE , the second applicant in DATE , and the third applicant in DATE . They are female and reside in GPE .

The relevant facts of the case as submitted by the parties and emerging from the documents furnished to the ORG may be summarised as follows .

From a young age the applicants trained in modern pentathlon . In DATE they enrolled in a ORG sports school in GPE .

According to their submission , the first and third applicants commenced training with the sports school ’s coach ORG in DATE and the second applicant was coached by him during DATE .

NORP In addition to the above - mentioned training , ORG organised sports DATE camps on the school ’s campus , which the first and third applicants attended in DATE and all the applicants attended in DATE .

At the time of the events in issue , the applicants were DATE .

On DATE the mother of the first and second applicants submitted a complaint to the ORG police alleging that the coach , ORG , had sexually abused her daughters .

DATE the police opened a criminal investigation under section CARDINAL of LAW ( PERSON ) ( sexual abuse ( pavešana netiklībā ) ) with respect to the period DATE and DATE .

In the course of investigation the police took statements from various individuals , including the applicants and their parents , and ORG ’s former students and their parents .

On DATE the mother stated that she had learnt from her daughters that ORG had requested that after training they attend the sauna fully undressed . The coach had explained that wearing clothes was unhealthy . The second applicant had refused . However , other girls between DATE , including the first applicant , had attended the sauna naked . The mother named the girls who had attended the sauna naked .

On CARDINAL occasion when the second applicant had been in the sauna CARDINAL - undressed , ORG had entered the sauna and had told her that she was still little , thereby embarrassing her .

On another occasion , after the sauna ORG had massaged the first applicant while touching her intimate body parts .

He had furthermore watched the girls changing and had touched their intimate body parts .

The first and second applicants’ mother submitted with regard to the third applicant that she had travelled with ORG to a competition in GPE , where he had pressurised her to share the same bed . The third applicant however had refused .

On DATE and DATE the police took statements from the CARDINAL applicants , who were granted the status of injured parties in the proceedings . The police took an additional statement from the third applicant on DATE and from the second applicant on DATE .

The applicants stated that the sauna sessions took place after training around twice a week . The second applicant had attended the sauna only twice .

Having arrived for the sauna , the first and second applicants had seen the other girls undressing fully . The other girls had told that it had been ORG ’s request that the sauna be attended naked . ORG had said that it was very healthy to attend the sauna in that way .

At the beginning , the first applicant had felt shy . Yet , as she had seen the other girls attending the sauna naked , she had started doing so . For the same reason , the third applicant had also started going to the sauna naked .

The second applicant had removed only the top part of her swimsuit and had entered the sauna . Suddenly ORG , wearing shorts and a cap , had entered , which had startled the second applicant . She therefore had covered herself with her hands , to which ORG had reacted by telling the other girls to look at how little she still was and saying that the other girls were already grown up and therefore naked . The second time , she had attended the sauna wrapped in a towel .

According to the ORG account , even though girls had been in the sauna naked , O.B. – dressed in DATE had come in and massaged them using a special bath brush ( a birch “ besom ” for a steam bath , used to swat or massage the body during a steam - bath procedure ) . Although the second applicant had refused that massage , she had witnessed ORG asking the other girls to lie on their back and then massaging them . The second applicant had seen ORG telling the third applicant to go to the sauna , and that he would come to massage her . The third applicant had listened to him . The second applicant stated as follows :

“ ... when [ O.B. ] was massaging [ the girls ] in the sauna , he did not touch [ their ] intimate body parts , [ he ] touched [ their ] bodies only with the bath brush , [ he ] did not touch [ them ] with [ his ] hands . ”

The second applicant had told the other girls that the abovementioned practice was not normal . However , they had responded that , as it had been requested by the coach , it had to be complied with . The first and third applicants stated that ORG had been their trainer and teacher , whom they had to obey . The second applicant , however , considered that there had been a possibility to refuse . To her mind the other girls had attended the sauna as they had not wished to disobey O.B. They had practically worshipped him , and had listened to everything he said .

From the documents furnished to the ORG it appears that the applicants gave the police the names of the other girls who had attended the sauna , PERSON , A.B. DATE who appears to have been a relative of O.B. – and V.A. The third applicant indicated that V.A. had rarely been to the sauna . According to the second applicant ’s account , there had been another girl , GPE

The first applicant also recounted an occasion when she had experienced pain in her leg . ORG had told her that he would give a massage and after the sauna had laid her on a bed and massaged her while she had been wearing only underpants . ORG had touched the lower part of her stomach .

The applicants stated that there had been times when ORG had entered the ORG changing room as if looking for someone . When passing by them he had DATE as if accidently – touched the ORG intimate body parts . The second applicant stated that he had also tried to touch her , which she had prevented .

The first applicant stated that she had heard that in DATE the third applicant and some boys had travelled with ORG to a competition in GPE . There he had told the third applicant that she would sleep with him in the same bed . The third applicant had gone to a separate bed to sleep and ORG , while drunk , had entered the room and had pulled at the children ’s legs , including those of the third applicant .

The third applicant also gave evidence regarding the trip to GPE with ORG and the other CARDINAL boys , whose names she provided .

At a hotel ORG had told her that she would sleep with him in the same bed . She had spoken to CARDINAL of the boys and had taken CARDINAL of the single beds . At TIME had returned to the hotel room drunk . After some time he had gone to sleep . The third applicant had felt afraid that ORG might do something bad to her .

During DATE of the competition , ORG had consumed alcohol , even though he had also been driving a vehicle .

In DATE and DATE the police ordered a psychologist ’s report regarding the applicants .

During the psychologist ’s examination the first applicant commented that she had been surprised that the sauna had to be attended and that girls had attended it naked and that ORG would enter and massage them with a besom , which had not seemed normal and had been unpleasant . However , the first applicant had felt afraid to tell her parents . ORG had often touched her body , putting his arm around her waist , sitting her on his lap and hugging her , and also during massages . On CARDINAL occasion during a massage he had touched her between her legs . The first applicant had been confused as to whether the coach ’s behaviour had been normal or bad . She had not wished to tell ORG anything bad as he had helped her a lot . However , at the workplace he had almost always been under the influence of alcohol . When any of the girls had not wished to sit on his lap , he would use force to pull them down .

The second applicant likewise told the psychologist that she had been very surprised about all the girls attending the sauna naked and O.B. entering and massaging them with a besom . She had tried to persuade the girls that it was not normal and had gone to the sauna dressed in a swimsuit . ORG had ridiculed her about it in front of the other girls , saying that she was so shy because she was little . Also , the coach had always been trying to touch her , and to put his arm around her waist . It had been unpleasant and she had tried to avoid him . The second applicant had gone to the sauna twice . She had gradually started telling her parents about ORG ’s behaviour .

The third applicant did not wish to speak about the events in issue . Thoughts about O.B. ’s behaviour caused negative emotions in her and she was trying to forget it . She confirmed her earlier testimonies . The psychologist noted her statements to the police of DATE and DATE . Concerning the sauna sessions , the third applicant had not found it normal that the sauna needed to be attended naked . However , she had started doing the same as the other students . The report referred to the applicant ’s character report from her previous school , which stated that on DATE the applicant had been observed in a tense condition , unwilling to participate in extracurricular activities , in low spirits and suffering from loss of concentration . Suddenly in the DATE she had decided to change school .

According to the psychologist ’s report , the CARDINAL applicants had been able to understand the nature and meaning of actions directed towards them .

However , the first applicant ’s ability to object could have been diminished due to personality traits such as a difficulty in saying “ no ” and in objecting , especially to older persons , and the wish to avoid conflict situations and to maintain a friendly relationship with everyone . The third applicant ’s ability to resist could have been diminished by personality traits such as a difficulty in expressing her own opinion where it contradicted the expectations of others , in assessing her own attitude and feelings with regard to events , judging what is right and what is not , an insecurity in communication , and the wish to avoid conflict situations and to maintain a friendly relationship with everyone . With regard to the second applicant , the psychologist ’s report stated that she had been able to exhibit resistance appropriate to the situation .

The report noted that the events in issue had caused the first applicant unpleasant feelings , insecurity , and anger and had made her distrustful in her communication with other coaches and with older men . With regard to the second applicant the report stated that she had retained anger , and had felt offended and guilty . The third applicant had been in low spirits , unable to concentrate , tense , and unwilling to participate in extracurricular activities , but this had lessened over time . She had felt offended . She still retained shame , anger , unpleasant thoughts and memories about the coach ’s conduct .

The report concluded that the alleged conduct of the coach had not caused the applicants to suffer psychological trauma . Owing to their psychological condition , however , the applicants’ participation in a trial or confrontation was not recommended .

On DATE the police apprehended and questioned ORG as a suspect .

According to ORG , girls had entered the sauna either wrapped in towels or wearing swimsuits . He had not entered the sauna with naked girls . They had exited the sauna dressed . ORG would ask a particular child whether they required a massage . If the child responded in affirmative he would enter the sauna and massage the child with a besom .

In the sauna ORG had massaged the first and third applicants at their request . He continued that during the massage they had been fully naked . No complaints however had been made . He had massaged by first lifting up CARDINAL or both legs and massaging them and had then moved on to massage their arms . He had not touched the ORG intimate body parts . He had known that touching breasts during massage was unhealthy . He had not known how it had come about that girls had been in the sauna naked . He had not told them that they needed to attend the sauna in that way .

O.B. stated that in DATE he had massaged the first applicant on her hip muscle . It had been hurting and she had asked him to massage it .

On DATE the police released ORG subject to his not changing his place of residence and complying with a prohibition on approaching the applicants or the sports school .

DATE . On DATE the mother of the third applicant gave evidence . In DATE her daughter had told her that girls attended the sauna naked together with ORG , who himself had been dressed in shorts . She had also mentioned a trip to GPE during which ORG had touched her leg and she had run into the bathroom .

Of the other students mentioned by the applicants , it appears that the police interviewed V.A. on DATE and her mother on DATE . Also , GPE ’s statement was taken on CARDINAL DATE and her mother ’s had been taken on DATE .

NORP In particular , V.A. stated that she did not like the sauna . She had attended it only twice . Girls had attended the sauna naked and ORG had massaged them . She had had good relations with ORG According to ORG mother , V.A. did not like the sauna in principle and it was unlikely that she had often attended it .

According to GPE ’s account of events , she had trained with ORG until DATE . He had been a good coach ( the copy of GPE ’s statement furnished to ORG in some parts was illegible ) . At a sports camp in DATE her mother had gone into the sauna together with the girls . GPE had told her that , as a sports doctor , ORG would usually massage them . The mother had asked her : “ ... but how , naked ? ” Her daughter had replied that they would cover their bodies up with towels . Therefore the mother had understood that ORG had not massaged them naked .

With regard to the other students referred to by the applicants , the police interviewed the mother of PERSON on DATE . The latter stated that her daughter had not paid any attention to attending the sauna naked as she had trained with ORG from a young age . She had seen the other girls undressing for the sauna and had followed their example . PERSON had stated that the coach had not harassed them . In the view of PERSON ’s mother , ORG should not have allowed the girls to attend the sauna undressed and should have informed the parents . She stated that she would allow PERSON to be questioned only on a prosecutor ’s authorisation .

On DATE , the police questioned PERSON – who had been referred to by the first and second ORG mother DATE and PERSON ’s mother . PERSON had trained with ORG DATE . From a copy of PERSON ’s statement furnished to ORG it appears that she stated :

“ ... at the beginning [ students ] were going to the sauna in swimsuits , but [ ORG ] said that [ they ] should not be shy and should attend the sauna without swimsuits in order for the body to relax fully . [ PERSON ] had started to take massages naked , as had the other girls . ”

PERSON had not found it inappropriate , because the coach had entered the sauna only in order to demonstrate how to massage using a besom . Neither PERSON nor her mother had any complaints to lodge against him .

DATE the police also took other statements .

It emerges that the police interviewed a parent of CARDINAL of ORG ’s students at the time of the investigation ; specifically , on DATE they questioned PERSON , whose son , PERSON , trained with ORG He did not have any complaints concerning the coach and did not know any details about the situation in issue .

The police also questioned numerous former students of the coach . On DATE PERSON gave evidence that she had been coached by PERSON until DATE . She described him positively . With regard to ORG ’s massaging naked girls in the sauna , she believed that he had done it through ignorance or a lack of understanding about the situation . But at the same time , he had done it in order to prepare aspiring athletes . She did not believe that he had had a sexual purpose . Parents of ORG ’s former students , ORG , and ORG , and also N.I. – who had herself trained with ORG DATE described ORG as a very good coach . ORG had learnt from her son that boys had taken sauna massages wearing swimming trunks . CARDINAL other former students of ORG , DATE coached DATE and PERSON , described ORG as a very good coach .

On DATE the doctor GPE submitted evidence that the sauna was one of the most important renewal procedures after training . However , if a male was present in the sauna together with girls , it was recommended that they all wear swimwear .

On DATE the investigator , PERSON , terminated the investigation .

In her decision PERSON cited the evidence collected . She concluded that the investigation had revealed that the sauna sessions had been voluntary . Girls had attended the sauna fully undressed , either on their own initiative or because that had been the practice by others . As explained by ORG , sauna sessions were healthy and necessary after training . He had massaged students at their request . During massages they had been undressed but ORG had had no interest in the girls . He had merely assisted with the massages .

T.M. could not establish that ORG had acted with a sexual purpose , an element required under LAW ( sexual abuse ) . For that reason and referring to the principle of in dubio pro reo PERSON closed the investigation against ORG for the lack of elements of crime .

On DATE the applicants’ parents appealed to the prosecutor ’s office against the termination decision . In DATE they supplemented the appeal .

They claimed that the ORG allegations had been ignored . The first applicant had indicated that ORG had touched her intimate body parts ; according to the second applicant , ORG had ridiculed her in front of the other girls with regard to undressing in sauna ; and the third applicant had recounted her experience in GPE . The allegation that ORG had entered the changing rooms had not been addressed .

Contrary to the GPE request , the students who had travelled to GPE together with ORG and the third applicant had not been questioned . The statements of children present in the sauna had not been taken .

The parents contended that their reference to a recognised trainer who maintained that sauna sessions harmed the health of athletes under DATE had been neglected . They named a witness in that regard and asked that a statement be taken from him . They also requested that the first applicant ’s current coach and the school psychologist be interviewed .

They furnished the report by the psychologist , GPE , to the effect that the first and second applicants had suffered psychological trauma . The appeal therefore sought the commissioning of another expert report .

On DATE the prosecutor PERSON dismissed the appeal .

DATE . She reasoned that the applicants had been questioned thoroughly . CARDINAL of O.B. ’s former students , and their parents had been interviewed , as had CARDINAL further witnesses as regards the usefulness of sauna .

Endorsing the investigator ’s conclusion , ORG stated that the investigation had not shown that ORG had acted with a sexual purpose . All the witnesses had stated that ORG had never touched students’ naked body parts other than with a besom and when massaging parts causing pain . Accordingly , the elements of crime under section CARDINAL of LAW ( sexual abuse ) were not present . Nor could the elements under section CARDINAL of the PERSON ( cruelty and violence against a minor ) be identified . None of ORG ’s students had stated that ORG had treated his students in a cruel or violent way . The phrase he had used [ with regard to the second applicant ] had not reached that threshold .

I.G. dismissed the GPE requests that further evidence be collected . Likewise , the report of the psychologist , GPE concerning the first and second applicants could not be included in the investigation file as it had already been closed .

On DATE the applicants’ parents appealed against the aforementioned decision to a higher prosecutor . In DATE they supplemented the appeal .

They disputed the conclusion that the element of a sexual purpose had not been present . In particular , they noted that according to the first applicant ORG had touched the lower part of her stomach , the area between her legs , and her breasts during massages . The second applicant had told of ORG ridiculing her in front of the other girls regarding undressing for the sauna . The third applicant ’s account regarding the events in GPE had been ignored and other students who had been present on the trip to GPE had not been interviewed . No consideration had been given to the allegation of ORG entering changing rooms and , as if by accident , touching ORG breasts .

The appeal referred to the report by the psychologist , GPE , stating that the first applicant exhibited symptoms associated with violence or serious psychological trauma .

On DATE the higher prosecutor , PERSON , dismissed the appeal .

He endorsed the findings of the lower prosecutor , including the view that ORG had regarded sauna sessions as beneficial to athletes’ health and had offered them to his students for this reason . Attendance of the sauna had been voluntary . Students had been naked because that had been the practice of the other students . Sometimes ORG had entered the sauna but in order to perform massages only .

DATE . With regard to the episode in GPE , PERSON deemed that the third applicant ’s allegation had not in itself revealed that a crime had been committed and statements from students present were therefore unnecessary . The investigation had been thorough and no further investigative actions were required .

On DATE the applicants’ parents lodged an appeal against the aforementioned decision to the chief prosecutor , ORG

They maintained their previous requests and arguments , including the contention that the girls had attended the sauna naked because ORG , using his coach ’s authority , had convinced them that wearing swimsuits was harmful to health . Initially all the applicants had been wearing swimsuits but the other girls had told them that ORG had insisted on their being undressed .

No regard therefore had been given to the claim that the first and third applicants had undressed due to pressure from ORG

That aspect and the reasons which had led children to undress for the sauna had not been investigated . Even though the testimonies of other parents stated that their children had also attended the sauna naked , these children had not been interviewed .

Furthermore , according to boys coached by ORG they had not been asked to attend the sauna undressed , which , in the GPE submission , signalled that ORG had been interested in naked girls . None of the other coaches at the sports school had massaged their students in the sauna , especially not naked . Moreover , ORG had been in the habit of entering the sauna without the applicants’ permission .

The parents further argued that the lower prosecutor had referred to the allegation that during a massage ORG had touched the first applicant between her legs without specifying further detail , even though the first applicant had specifically stated that the coach had touched her intimate body parts . The first applicant had spoken about it to the psychologist , who had affirmed that she had been speaking the truth .

On DATE the chief prosecutor , ORG , dismissed the appeal and affirmed the closure of investigation .

V.O. endorsed the lower prosecutor ’s findings . With regard to the GPE request for the hearing of further witnesses , ORG stated as follows :

“ [ NORP having assessed [ the applicants’ ] testimonies in that part , no grounds exist to conclude that a crime has been committed . Moreover , in these testimonies [ the applicants ] gave no evidence on the circumstances mentioned in the appeal in question . ”

No appeal lay against the aforementioned decision .

On DATE the mother of the first and second applicants , arguing that the report by the psychologist , GPE , constituted newly discovered facts , asked the State police to reopen the investigation . She stated that GPE had concluded that the first applicant had suffered psychological trauma .

By a final decision of CARDINAL DATE that request was dismissed .

On DATE the mother of the third applicant , arguing that the report of the psychologist , GPE , constituted newly discovered facts , asked the police to reopen the investigation . According to GPE ’s report , the third applicant exhibited possible post - traumatic stress symptoms .

In the meantime , on DATE a compensation claim against ORG was lodged on behalf of the applicants before FAC ( PERSON pilsētas ORG priekšpilsētas tiesa ) .

Relying on DATE ( PERSON ) ( right to compensation ) and section CARDINAL of LAW ( Civillikums ) ( right to compensation ) , it was requested that ORG pay compensation of CARDINAL NORP lati ( ORG ) ( roughly corresponding to MONEY ( ORG ) ) with regard to the first and the third applicants and ORG CARDINAL ( roughly corresponding to ORG CARDINAL,CARDINAL ) with regard to the second applicant .

On DATE ORG delivered its judgment .

According to ORG , it was not disputed that the first and third applicants had started to train with ORG in DATE and the second applicant in DATE ( sic ) . The first and second applicants had trained with him until DATE and the third applicant until DATE .

It was established that ORG had recommended sauna sessions to his students . It was not , however , established that ORG had psychologically influenced the applicants with regard to attending the sauna . At the same time , ORG continued , it was not proved that the sauna sessions had been necessary in order to achieve good results in sports without harming health . They had not been included in the training programme . It was not proved that either the applicants or their parents had consented to the coach ’s presence in the sauna together with naked girls . The applicants had been minors and therefore unable to fully understand or assess the situation . They had trusted and obeyed a person of the age of majority and could not have fully protected themselves against interference with their privacy .

According to generally accepted ethical norms , it was not a tradition in the society of the region to appear naked DATE even in the sauna – in front of the opposite sex . Massaging naked girls with a besom had been unethical and in contravention of general moral principles , as had been the suggestion to a girl under the age of eighteen to sleep with the coach in the same bed . ORG found that these actions on part of ORG had violated the applicants’ right to privacy .

Noting , inter alia , that none of the applicants had been caused grievous or irreversible consequences , ORG ordered that ORG pay ORG CARDINAL ( roughly corresponding to ORG CARDINAL ) each to the first and third applicants and LVL CARDINAL ( roughly corresponding to ORG CARDINAL ) to the second applicant .

As submitted by the ORG and not disputed by the applicants , on DATE ORG lodged an appeal against the aforementioned judgment before ORG ( PERSON apgabaltiesa ) . No appeal , however , was lodged by the applicants .

On DATE ORG withdrew his appeal . On DATE the appeal proceedings were discontinued and the judgment of ORG became final on DATE .


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

Kristina Pardalos;Paul Mahoney;Pauliine Koskelo

On CARDINAL DATE ORG recognised , amongst others , the applicants’ inherited property rights over an agricultural land measuring QUANTITY m. The applicants and other heirs would be awarded compensation in the sum of CARDINAL NORP leks ( “ ALL ” ) in respect of the entire land .

To date , no compensation has been paid .

On DATE the ORG recognised , amongst others , the applicant ’s inherited property rights over some land measuring CARDINAL sq . m of which QUANTITY . m were restored . Since the remaining plot measuring QUANTITY . m , which was situated within the village boundaries and used to be arable land , was occupied , the applicant and other heirs would be compensated in ORG bonds in the event the buildings located on the land were not privatised ( “ u kompensohet me obligacion shtetëror sipërfaqja QUANTITY tokë arë , brenda vijave kufizuese PERSON , në rast se objektet ( ... ) nuk do të privatizohen ” ) . The Commission stated that the applicant owned CARDINAL of the land .

On DATE the ORG recognised , amongst others , the applicant ’s inherited property rights over another plot of arable land and meadow measuring CARDINAL sq . m. Since the arable land and meadow were occupied , the applicant would be compensated in ORG bonds equivalent to a financial amount of ALL CARDINAL .

On DATE ORG recognised , amongst others , the applicant ’s inherited property rights over a plot of land measuring QUANTITY . m of which QUANTITY . m were restored . Since the remaining plot measuring QUANTITY m was occupied , the applicant and other heirs would be compensated in CARDINAL of the ways provided by law .

On DATE ORG recognised , amongst others , the applicant ’s inherited property rights over CARDINAL plots of land totalling CARDINAL sq . QUANTITY Since the plots of land were occupied , the applicant and other heirs would be compensated in kind in respect of a plot measuring QUANTITY . m and in ORG bonds in respect of another plot measuring CARDINAL sq . m. No decision was taken in respect of any right to compensation as regards the remaining plot measuring QUANTITY m.

On DATE ORG recognised the applicants’ inherited property rights over an agricultural land measuring QUANTITY . m. The applicants would be awarded compensation by way of ORG bonds in the sum of ALL CARDINAL .

On DATE ORG recognised the applicant ’s inherited property rights over a plot of land measuring QUANTITY . m of which QUANTITY m were restored . Since the remaining plot was occupied , the applicant would be compensated in CARDINAL of the ways provided by law .

On DATE the Agency on ORG and Compensation of Properties amended in part the ORG decision and decided that the applicant would be compensated in CARDINAL of the ways provided by law even in respect of the plot of land measuring QUANTITY m.


ANEMA-KWINKELENBERG AND OTHERS v. THE NETHERLANDS

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra

A list of applicants is set out in the appendix . The applicants were represented by Mr G.J.H. PERSON , a lawyer practising in GPE ( hereafter also : the applicants’ representative ) .

NORP Before the events complained of , the applicants variously held shares or subordinated bonds ( the latter under diverse designations ) issued by ORG , a public limited company ( naamloze vennootschap , “ GPE ” ) incorporated under GPE law , or CARDINAL or more of its subsidiaries . The events complained of , which concern the expropriation of those shares and subordinated bonds , are set out in PERSON and Others against the GPE and CARDINAL other applications DATE ) , no . DATE , DATE . Appeals against the expropriation decision were dismissed by ORG ( GPE bestuursrechtspraak ) of ORG ( PERSON ) on DATE . Proceedings relating to compensation are currently pending before ORG ( PERSON ) .

B. Relevant Court procedure

The Rules of Court

At the time of the proceedings in issue , ORG , as pertinent , provided as follows ( footnotes omitted ) :

Rule DATE Representation of applicants

“ CARDINAL . Persons , non - governmental organisations or groups of individuals may initially present applications under LAW themselves or through a representative . ... ”

Rule CARDINALA – Duty to cooperate with the ORG

“ The parties have a duty to cooperate fully in the conduct of the proceedings and , in particular , to take such action within their power as the ORG considers necessary for the proper administration of justice . This duty shall also apply to a ORG not party to the proceedings where such cooperation is necessary . ”

Rule DATE Signatures

“ CARDINAL . Any application made under ORG CARDINAL or CARDINAL of the Convention shall be submitted in writing and shall be signed by the applicant or by the ORG representative .

Where an application is made by a non - governmental organisation or by a group of individuals , it shall be signed by those persons competent to represent that organisation or group . ORG concerned shall determine any question as to whether the persons who have signed an application are competent to do so .

Where applicants are represented in accordance with Rule CARDINAL , a power of attorney or written authority to act shall be supplied by their representative or representatives . ”

Rule DATE Contents of an individual application

“ CARDINAL . Any application under LAW shall be made on the application form provided by ORG , unless the President of the Section concerned decides otherwise . It shall set out

( a ) the name , date of birth , nationality , sex , occupation and address of the applicant ;

and be accompanied by

( h ) copies of any relevant documents and in particular the decisions , whether judicial or not , relating to the object of the application .

Failure to comply with the requirements set out in DATE and QUANTITY of this Rule may result in the application not being examined by the ORG .

The date of introduction of the application for the purposes of LAW shall as a general rule be considered to be the date of the first communication from the applicant setting out , even summarily , the subject matter of the application , provided that a duly completed application form has been submitted within the time - limits laid down by the ORG . The ORG may for good cause nevertheless decide that a different date shall be considered to be the date of introduction . ... ”

The Practice direction on the institution of proceedings

Clarification of the above Rules , among others , was provided by a Practice direction on the institution of proceedings issued by the President of the ORG under Rule CARDINAL of ORG . At the time of the proceedings here in issue , it read as follows , in its relevant parts and in the redaction in force since DATE ( footnote omitted ) :

“ CARDINAL . If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule CARDINAL , the applicant may be required to submit a duly completed form . It must be despatched within DATE from DATE letter requesting the applicant to complete and return the form .

Failure to comply with this time - limit will have implications for the date of introduction of the application and may therefore affect the applicant ’s compliance with the DATE rule contained in LAW .

Applicants may file an application by sending it by fax . However , they must despatch the signed original by post within DATE from DATE letter referred to in paragraph CARDINAL above .

On receipt of the first communication setting out the subject - matter of the case , the ORG will open a file , whose number must be mentioned in all subsequent correspondence . Applicants will be informed thereof by letter . They may also be asked for further information or documents .

Failure to provide further information or documents at the ORG ’s request ( see paragraph CARDINAL ) may result in the application not being examined by the ORG or being declared inadmissible or struck out of the ORG ’s list of cases . ”


CASE OF S.C. FIERCOLECT IMPEX S.R.L. v. ROMANIA

Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Branko Lubarda;Carlo Ranzoni;Iulia Motoc;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits

The applicant , ORG , was a NORP limited liability company , with a registered office in ORG .

On DATE ORG issued the applicant company with an operating permit , which was valid until DATE . The applicant company was required to apply for an extension of the permit if the initial conditions of operation did not change . Its main activity consisted in collecting and recycling scrap iron .

Under LAW no . CARDINAL/CARDINAL ( see paragraph CARDINAL below ) an application for extension of the operating permit had to be submitted DATE prior to the expiry of the previous permit . As the applicant company ’s permit was due to expire on DATE , on DATE it applied for an extension of the existing permit .

NORP The applicant company also applied to ORG ( “ REA ” ) for an environmental permit , which according to the law had to accompany the application for extension of the operating permit .

NORP REA registered the applicant company ’s application but refused to accept the accompanying documents on the grounds that on DATE a new order providing for the authorisation of activities with a significant impact on the environment had been adopted and the guidelines for implementing the new order had not yet been published .

The relevant guidelines were published on DATE .

In a letter of DATE , ORG informed the applicant company that under the new Order no . CARDINAL/CARDINAL , its activity was considered to have a significant impact on the environment and that it should therefore follow the authorisation procedure set out in that order . The applicant company was invited to submit new supporting documents within DATE .

The applicant company submitted the requested documents on DATE .

A new environmental permit was issued on DATE . On DATE the prefecture issued a new operating permit .

DATE and DATE the applicant company continued to carry out its activity .

Following an inspection carried out at the applicant company ’s headquarters , on DATE ORG ( PERSON ) fined the company ORG ( MONEY ) and ordered the confiscation of ROL CARDINAL ( approximately EUR CARDINAL,CARDINAL ) , representing the market value of the scrap iron collected for recycling DATE and DATE . The finance inspectorate based its decision ( proces - verbal de constatare şi sancţionare a contravenţiilor ) against the applicant company on LAW ( a ) of Emergency Government Ordinance no . ORG .

The applicant company lodged a complaint against the decision of ORG , claiming that the competent authorities were responsible for the delay in issuing the operation permit . In this connection , it argued that the application for an extension of the operating permit had been lodged in good time , namely on DATE .

On DATE the ORG dismissed the complaint as unfounded . It noted that the decision of DATE was in accordance with LAW no . CARDINAL/CARDINAL . It also noted that the applicant company had continued to carry out its activity despite the fact that its operating permit had expired on DATE ; it had therefore infringed LAW in conjunction with LAW ( a ) of Emergency Government Ordinance no . CARDINAL/CARDINAL . The court dismissed the applicant company ’s claim that liability for its situation lay with the authorities for failing to issue its environmental and operating permits in time , holding that such a claim would be relevant only within the framework of a tort action and could not be raised as a reason for exonerating a company that had committed an administrative offence .

The applicant company appealed . On DATE the ORG dismissed the appeal , upholding the decision of the firstinstance court on the same grounds .

The applicant company brought administrative proceedings against ORG , seeking to recover the damages incurred as a result of the late issuing of the environmental permit . It based its action on PERSON no . MONEY . It claimed that because of the amendment to the legislation concerning the procedure for issuing permits , the competent authority had not issued its permit in due time . It pointed out that even after the publication of the guidelines for the application of the new order on DATE , ORG had not acted effectively , as it had not written to the applicant company until DATE . Moreover , ORG had interpreted the applicant company ’s application as a request for a new permit instead of for an extension of the existing permits , given that the operation conditions had not changed . That had further delayed the authorisation procedure .

On DATE ORG dismissed the action as premature , holding that the applicant company had not followed the prior procedure required by law before lodging an action with the court .

NORP The applicant company lodged an appeal , claiming that the dismissal of its action as premature had been unjustified given that the defendant agency had already submitted its observations on the merits .

On DATE ORG allowed the applicant company ’s appeal . It quashed the first - instance judgment and remitted the case to the first - instance court for examination on the merits .

On DATE ORG dismissed the applicant company ’s action . It held that the applicant company had not complied with the obligation to lodge an application for a new environmental permit DATE prior to the expiry of the existing permit , as provided for by LAW new order regulating the procedure for obtaining an environmental permit , namely Order no . CARDINAL/CARDINAL . It noted that the previous order , no . CARDINAL/CARDINAL , had provided only for the obligation to obtain an environmental permit , without establishing the procedure to be followed in that respect . It concluded that the competent agency had issued the environmental permit within the ninetyday deadline provided for by the new order and could not therefore be held liable for the damages incurred by the applicant company .

The applicant company lodged an appeal on points of law , pointing out that on DATE when it had lodged its application for an extension of the operating permit , the guidelines for implementation of the new order had not yet been published . It also claimed that it had been unable to apply for a new permit DATE prior to the expiry of its existing environmental permit on DATE , as the new order had entered into force on DATE and the relevant guidelines had not been published until DATE . The applicant company also complained that the first - instance court had interpreted LAW no . ORG to mean that the administrative authority had the option of extending the existing permit if the operating conditions had not changed , instead of an obligation to extend the permit . In this connection , the applicant company pointed out that , like the previous order , the new order provided for the ope legis extension of an existing permit for DATE if the company ’s operating conditions had not changed . It also pointed out that at the time of lodging its application for a new permit on DATE , the applicable law was Order no . CARDINAL/CARDINAL , which provided for a time - limit of DATE for the issuance or renewal of an operating permit .

On DATE ORG dismissed the applicant company ’s appeal on points of law , upholding the firstinstance judgment . It held that the law applicable to the applicant company was Order no . ORG , which had entered in force before the expiry of the applicant company ’s environmental permit . It concluded that even assuming that the administrative authorities were liable for non - compliance with the applicable legislation , the applicant company had had no right to continue an illicit activity in the absence of the authorisation required by law . The applicant company should have suspended its activity until it had obtained the necessary permits and should then have brought proceedings seeking to recover any damages – as long as it could prove the existence and extent of such damages .

Following a request lodged by the sole shareholder of the applicant company on DATE , ORG took note of the voluntary dissolution of the company .

In DATE , before the ORG had communicated the applicant company ’s complaints to the respondent Government , the administrator and sole shareholder , PERSON , informed ORG dissolution on DATE and his intention to continue the procedure initiated before the ORG by the applicant company .


András Sajó;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . The applicant was allowed to represent herself in the proceedings before the ORG .

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

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

On DATE , CARDINAL individuals , CARDINAL of whom was the applicant ’s brother , were taken to an Iaşi Police station charged with disturbance of public order due to drunken behaviour . Following a call from her brother , the applicant went to the same police station in her capacity as a lawyer in order to represent the CARDINAL aforementioned individuals .

On DATE a local newspaper published an article entitled “ Big row in the middle of the night between a lawyer and police officers from Station II ” ( Mare tărăboi în miez de noapte între un avocat şi poliţiştii de la Secţia II ) . The article related the events of DATE . It included the following quote from the deputy to the head of the police station : “ ... both the lawyer and her client were under the influence of alcohol and caused a furore in the police station ” .

On DATE the applicant lodged a criminal complaint of defamation against the journalist who had written the article and the police officer who had been quoted in it . She argued that as a result of the publication of the article , including the allegation that she had been under the influence of alcohol , her reputation had been damaged . Several clients had rescinded their representation agreements with her and her family had been negatively affected subsequent to the publication of the article . On DATE the applicant joined the proceedings as a civil party claiming CARDINAL in compensation .

On DATE ORG sent the file to the prosecutor ’s office attached to it , instructing the prosecuting authorities to examine the applicant ’s complaint under LAW § CARDINAL of LAW ( Law No . CARDINAL ) .

On DATE the prosecutor attached to ORG dismissed the applicant ’s complaint in respect of the police officer for lack of sufficient evidence that he had made defamatory statements and in respect of the journalist on the grounds that he had not acted with the intention to defame . The prosecutor based his decision on LAW ( a ) of LAW .

The prosecutor noted that on TIME of DATE the journalist had had a private conversation with police officer ORG but that , according to a few witnesses who had been present , ORG had refused to give any details about the incident of DATE and had invited the journalist to seek the information from the officer tasked with providing information to the press . The prosecutor noted that the versions of the CARDINAL defendants concerning the journalist ’s source for his article of DATE differed . While the journalist contended that police officer ORG had given him information concerning the applicant ’s alcoholic intoxication on TIME of CARDINAL April CARDINAL , officer ORG denied it .

On DATE the chief prosecutor upheld his decision .

The applicant lodged a complaint with ORG against the prosecutor ’s decision not to open a criminal investigation . She contended that the circumstances of the incident of DATE had not been accurately reflected by the prosecutor in his decision . She maintained that on TIME of the incident she had complained to the prosecutor in charge about the abusive behaviour of the police officers towards her and the CARDINAL individuals who had been handcuffed and taken to the police station ( CARDINAL of whom was her brother ) and that a criminal investigation had been opened in this connection .

On DATE ORG dismissed the applicant ’s complaint . The applicant lodged an appeal on points of law .

By a judgment of CARDINAL DATE ORG and ORG allowed the applicant ’s appeal on points of law and remitted the case for further investigation to the prosecutor ’s office attached to ORG . The court reasoned that the applicant ’s complaint had been dealt with superficially and that the investigation should have addressed the crime of defamation of a lawyer , as provided for under LAW § CARDINAL of LAW .

On DATE the prosecutor ’s office attached to ORG dismissed the applicant ’s criminal complaint , basing its decision on LAW ( a ) of LAW . It concluded that police officer ORG had not made any defamatory statements about the applicant and that the journalist had written the article on the basis of a report drawn up by the police on TIME DATE without the intent to defame the applicant .

On DATE the chief prosecutor upheld that decision .

On DATE ORG allowed an appeal lodged by the applicant against the prosecutor ’s decisions . It quashed the prosecutor ’s decision on the grounds that the applicant ’s complaint should have been examined in the light of LAW and sent the case - file back to the prosecutor ’s office for a fresh examination .

By a decision of CARDINAL DATE the prosecutor ’s office attached to ORG dismissed the applicant ’s criminal complaint .

The applicant challenged the prosecutor ’s decision before the courts .

An appeal on points of law lodged by the applicant was finally dismissed by ORG and ORG on DATE . The court upheld the reasoning of the lower courts that the offence did not fall under the provisions of LAW , as the acts complained of had not occurred during the exercise of the applicant ’s duties . Furthermore , the High ORG and ORG held that although the acts complained of may have fallen under the provisions of the LAW regarding defamation , those charged with such acts could no longer be prosecuted because DATE defamation had been decriminalised . The defendants were therefore able to benefit from the application of the more favourable law . No reference was made to the civil action lodged by the applicant .

Article CARDINAL of the Code of Criminal Procedure ( ORG ) , as in force at the time of the events , read as follows :

“ Anyone who makes a statement or allegation in public concerning a particular person which , if true , would render that person liable to a criminal , administrative or disciplinary penalty or expose them to public opprobrium shall be liable to a fine .... ”

Law No . DATE amended certain provisions of the ORG and repealed the ORG on insult and defamation .

NORP However , by its decision no . CARDINAL of DATE ORG declared the repeal unconstitutional .

The relevant provisions of the ORG in force at the time of the relevant facts read as follows :

“ ( CARDINAL ) Criminal proceedings can not be instituted and , if instituted , can not be continued if ...

( b ) the act is not proscribed by the criminal law ; ”

“ The aim of a civil action is to establish the civil liability of the accused and the liability for the payment of damages of any other person who may be held legally responsible .

A civil action can be brought together with a criminal action in a criminal trial , by way of joining the proceedings . ”

“ A person who has suffered civil damage may join the criminal proceedings ...

He or she may do so either during the criminal investigation ... or before the court ... ”

“ The findings contained in a final judgment of the criminal court concerning the issue whether the act in question was committed and the identification of the perpetrator and establishment of his guilt are binding on the civil court when it examines the civil consequences of the criminal act . ”

“ ( CARDINAL ) In the event of a conviction or an acquittal , or the termination of the criminal trial , the court shall deliver a judgment in which it also decides on the civil action .

( CARDINAL ) Where acquittal has been pronounced for a reason provided for in LAW ( bCARDINAL ) or because the court has identified an element that removes the criminal nature of the act , or because one of the constitutive elements of an unlawful act is missing , the court may award pecuniary and non - pecuniary damages in accordance with the civil law .

( CARDINAL ) Civil damages can not be awarded if the acquittal was decided because the offence does not exist or has not been committed by the defendant .

( CARDINAL ) The criminal court shall not settle the civil action if it decides to acquit for reasons provided for in LAW b ) or if it decides to terminate the criminal proceedings for CARDINAL of the reasons provided for in DATE ( f ) and ( j ) or in the event of withdrawal ” .

The provisions of ORG CARDINAL of the ORG are mentioned in ORG v. GPE ( nos . CARDINAL and CARDINAL , § § CARDINAL and CARDINAL , CARDINAL DATE ) .

Articles CARDINAL of LAW , as in force at the relevant time , provided that any person who had suffered damage could seek redress by bringing a civil action against the person who had negligently caused it .

Article CARDINAL § CARDINAL of LAW , as in force at the time of the events , read as follows :

“ ( CARDINAL ) Insulting , defaming or threatening a lawyer during the exercise of his or her profession and in connection with the profession shall be punished by a term of imprisonment from DATE or by a fine . ”


CASE OF MUSTAFA SEZGİN TANRIKULU v. TURKEY

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano

The applicant , who was born in DATE , is a member of ORG and lives in GPE . At the time of the events giving rise to the present application he was the president of ORG .

On DATE the DATE newspaper PERSON reported statements by a senior intelligence officer , who claimed that ORG of GPE ( “ MİT ” ) had been intercepting the telephone conversations and email correspondence of a number of people on the basis of CARDINAL court decisions over DATE . The intelligence officer stated that the surveillance had been continuous until DATE , when the MİT had stopped it in order to wait for the entry into force of the new LAW . However , when a bomb attack had occurred in DATE in GPE , killing a police superintendent , the MİT had gone to ORG ( “ the ORG ” ) to seek permission for the interception of communications .

NORP In a decision dated DATE , relying on LAW and sections CARDINAL , DATE , DATE and DATE of Law no . DATE , ORG had granted the ORG permission to monitor and examine all electronic communications in order to identify and arrest terrorist suspects with international connections as well as to collect evidence and to prevent crime by having early intelligence of it . The ORG had obtained permission to intercept all domestic or international telephone calls and communications provided DATE and DATE by national telecommunications company ORG , private mobile network operators and Internet providers and to obtain information contained in SMS , ORG , ORG and fax communications , as well as caller IDs , ORG addresses and all other communication - related information .

On DATE , after reading the article , the applicant filed a criminal complaint with ORG against the judge , PERSON , who had delivered the ORG decision in question , the public prosecutor , the ORG agents who had sought permission to monitor and examine communications , and the ORG agents who had implemented the decision . Relying on a number of newspaper and online articles , the applicant alleged that ORG had decided that the records of all domestic and international electronic communications DATE should be given to the MİT by the telecommunications companies . The judge had made that decision in complete disregard of the legislation then in force and without carrying out any research or requiring proof . The impugned decision had been of a very general nature since it had not included the names of any suspects or indicated the date , location or address of people whose communications would be intercepted . As a consequence , any person , including himself , who had used a landline or mobile telephone to communicate between the above - mentioned dates , had been a victim of the impugned decision . The applicant maintained that the decision had violated his rights protected by LAW and had also contravened Articles DATE , which protected private life and the freedom of communication respectively , since the accused had obtained records of his communications and restricted his freedom of communication without any justification . Lastly , the applicant contended that the implementation of the decision , which had been in contravention of section CARDINAL of Law no . DATE , required the punishment of those responsible .

On DATE ORG decided to disjoin the case concerning the ORG officials and to register it separately because the prosecution of ORG officials required the Prime Minister ’s permission .

On DATE ORG decided not to prosecute the ORG officials who had implemented ORG decision . He decided that the ORG officials had merely implemented the court ’s decision when intercepting and examining communications and that the implementation of court decisions was required by law and did not constitute a crime . In any event , there was no evidence that the telecommunications companies had given any records to the ORG officials or that they had monitored communications over the Internet . ORG also referred to a decision by ORG not to prosecute over the same issue ( decision no . CARDINAL , DATE ) in relation to a number of other complaints brought against ORG decision .

On DATE the applicant filed an objection with ORG against the above decision , alleging that ORG had failed to carry out an investigation into his complaints concerning an alleged violation of his rights guaranteed by ORG CARDINAL and CARDINAL of the Convention .

On DATE ORG dismissed the applicant ’s objection , holding that ORG decision against prosecution had complied with the legislation since the ORG officials had implemented a court decision and had not committed any offence .

On DATE ORG decided not to take an action against the public prosecutor and the judge as it found that their acts fell within judicial discretion . ORG considered that although the impugned interception decision had been in breach of the national and international legal norms , the aim was to locate the terrorists before they acted and to take the necessary security measures against them . For ORG , the decision did not display ‘ ill - will’ towards any individual or institution and the complainants had failed to demonstrate that they had been affected by the impugned decision in any way . On an unspecified date the applicant filed an objection against this decision . On DATE ORG dismissed the objection .