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)

Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in DATE and lives in GPE .

The applicant was convicted in DATE and DATE ; having partially served his sentence of DATE , he was released on parole.in DATE .

On DATE the police carried out a test buy of drugs from the applicant , searched his flat and seized , in particular , the drugs , an audio system and MONEY ( RUB ) .

On DATE the PERSON town court ( “ the town court ” ) retroactively upheld the seizure of the audio system and RUB CARDINAL for securing an eventual confiscation order . A sum of RUB CARDINAL was also seized on an unspecified date . The investigator deposited the audio system to the police warehouse ; the sum of RUB MONEY was deposited onto the police bank account .

The applicant was charged with drug - related crimes . On an unspecified date the investigation file was transferred to the town court for trial .

On DATE the applicant ’s retained lawyer PERSON failed to attend a trial hearing . The town court rescheduled the hearing on DATE .

On DATE Mr B. again failed to attend the hearing ; the trial court appointed PERSON , a legal - aid lawyer , to represent the applicant . It follows from the trial record that the applicant did not indicate any failings on the part of PERSON to the trial court .

At some point DATE the applicant decided to replace PERSON with PERSON as his retained lawyer .

On DATE the town court held the second hearing . It convicted the applicant of a drugrelated offence and procurement and possession of firearms and sentenced him to CARDINAL years’ imprisonment . The town court ordered that RUB CARDINAL and the audio system be confiscated as “ unlawfully acquired ” .

On DATE the GPE regional court ( “ the regional court ” ) quashed the conviction for procurement and possession of firearms and reduced the applicant ’s sentence for the drugrelated crime to DATE and CARDINAL months’ imprisonment . In the remaining part the judgment of DATE was upheld and became final and enforceable .

On DATE the applicant sent an introductory letter to ORG in which no specific complaint was raised .

On DATE the sum of RUB CARDINAL was added to the ORG budget .

On DATE the applicant sent to ORG a completed application form complaining for the first time that PERSON had not represented him on DATE .

On DATE the audio system was sold for RUB CARDINAL ; the proceeds were added to the ORG budget .

On DATE the town court brought the applicant ’s sentences for the crimes committed in DATE and DATE into conformity with the amendments in law ; the decision was upheld on appeal on DATE .

On DATE the applicant complained to ORG for the first time about the order to confiscate his property contained in the judgments of DATE and DATE .

On DATE the presidium of the regional court delivered CARDINAL separate supervisory review rulings : CARDINAL in respect of the decisions bringing the sentences of DATE and DATE into conformity with the new law , by which it mitigated the sentences on technical grounds , and CARDINAL in respect of the judgments of CARDINAL DATE and DATE . In the latter the presidium briefly confirmed lawfulness of the applicant ’s conviction and declared the judgments unlawful in the part concerning confiscation of the applicant ’s property , which it remitted for a fresh examination in the first instance .

On CARDINAL DATE the town court decided that RUB CARDINAL should be repaid and the audio system should be returned to the applicant . The decision became final and enforceable . On DATE a writ of execution was issued .

On DATE the bailiffs’ service opened enforcement proceedings in respect of the writ of CARDINAL DATE . No further actions to ensure enforcement were taken .

The final decision of CARDINAL DATE remained unenforced as the audio system had been sold and the money sent to the ORG budget .

On DATE ORG requested the applicant to produce a copy of the trial record .

The applicant asked the town court for a copy ; the request was denied as the applicant had already been provided with a freeof - charge copy and had failed to pay a court fee for CARDINAL as required by domestic regulations .

On CARDINAL DATE the applicant informed the ORG that he had been trying to obtain a copy of the record . Later he succeeded at that .

On DATE the ORG town prosecutor ’s office criticised the bailiffs’ failure to act and issued an instruction ordering them to take measures to enforce the decision of CARDINAL DATE .

On DATE the town court changed the manner of execution of the decision of CARDINAL DATE in respect of the audio system and decided that the applicant should be paid RUB CARDINAL , the sum for which the audio system had been sold .

The decision of CARDINAL DATE remained unenforced .


CASE OF ARTYUSHKOVA AND OTHERS v. RUSSIA

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

The applicants complained of the non - enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law . In application no . CARDINAL , the applicant also raised other complaints under LAW .


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in DATE . Until his death in DATE he was detained in correctional colony no . CARDINAL in the village of GPE , GPE .

On DATE the Fokino Town Court of the Primorskiy Region convicted the applicant of murder and sentenced him to CARDINAL half years’ imprisonment . On DATE he was taken into custody .

Prior to his detention the applicant sustained several spinal injuries and lost the ability to walk unaided . Since DATE he has been confined to a wheelchair .

On his admission to a remand prison in DATE , the applicant was given a general medical check - up by the doctor on duty , to whom he complained of lower back and joint pain . The doctor provisionally diagnosed him with spinal tuberculosis . No drugs were prescribed .

According to the applicant ’s submissions , which were not disputed by the Government , he was put in an ordinary cell not equipped for wheelchairusing detainees . As a result he suffered various inconveniences , including restricted access the toilet .

DATE he was seen by a medical specialist , who amended his diagnosis to osteoporosis with compression fractures of CARDINAL discs of the lumbar spine .

NORP In DATE he was examined by a neurologist , who noted that CARDINAL of his diagnoses was paraplegia , impairment in motor function of the lower extremities . He was advised to undergo various medical examinations and tests , including magnetic resonance imaging ( MRI ) of the spine and a hip X - ray .

NORP In DATE a prison surgeon established that the osteoporosis affected not only the applicant ’s spine , but also his legs . He was prescribed pain relief medication and advised to undergo several medical tests .

There is no information in the applicant ’s file to suggest that the remand prison authorities gave him medication , an MRI scan or radiography . According to the applicant , even painkillers were unavailable in the remand prison .

On DATE the applicant was sent to serve his sentence in correctional colony no . IK-CARDINAL/CARDINAL . On his arrival he was seen by a prison doctor who , in addition to the spinal and joint conditions , diagnosed him with coronary heart disease , angina pectoris and moderate hypertension disease . He was prescribed and provided with comprehensive drug treatment .

The Government did not provide any evidence to show that the correctional colony had any special facilities to accommodate wheelchairusing prisoners .

On DATE the applicant was sent to prison hospital no . CARDINAL in GPE , GPE , for an in - depth medical examination to establish whether he was entitled to early release on medical grounds .

A hip X - ray revealed that he suffered from an old displaced fracture of the cervical hip with full avulsion of the greater trochanter .

On DATE a specialist medical panel of the prison hospital concluded that the applicant was not eligible for early release , because none of his illnesses were included in the governmental decree containing a list of illnesses precluding offenders from serving their sentences . On DATE the applicant was discharged from the prison hospital .

On DATE ORG dismissed the applicant ’s application for early release , referring to the medical report of DATE . That decision was upheld on appeal by ORG on DATE .

In the meantime the applicant lodged several complaints with the head of the prison medical authorities , ORG for the Execution of Sentences and ORG and ORG of GPE . The latter authority found a shortcoming in the applicant ’s treatment , namely a failure to ensure he was examined by an orthopaedic traumatologist .

On DATE the applicant was seen by a traumatologist , who diagnosed him with an inguinal hernia and recommended surgery to be performed at DATE . The doctor also stated that he should be provided with a walking stick and a walking frame .

NORP Over DATE that followed the applicant was regularly seen by prison doctors and provided with hypotensive drugs and pain relief drugs .

In the meantime he brought a civil claim against the medical authorities seeking compensation for damage to his health caused by inadequate medical treatment .

On DATE ORG dismissed the claim . Having looked at the list of medical services provided to the applicant , the court concluded that he had been afforded adequate medical treatment . It appears that no appeal followed .

On DATE a neurologist ordered the applicant ’s admission to the prison hospital , which would involve a train journey . The applicant refused , arguing that prison train carriages were not equipped to transport wheelchair - using detainees .

On DATE the applicant died of a heart attack .


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

Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in GPE .

The applicant was the manager of ORG , a company registered in the GPE dealing with artwork .

On CARDINAL DATE ORG first informed ORG of the suspicion of tax fraud by the applicant in connection with the sale of several pieces of artwork by ORG

On DATE ORG issued an order for the applicant ’s home to be searched . The search was conducted on DATE , which is also the date when the applicant was first notified of the investigations against him .

On DATE ORG submitted its final report to ORG .

On DATE ORG issued an indictment against the applicant concerning the suspicion of tax fraud during DATE , alleging that the applicant had evaded taxes amounting to CARDINAL . NORP PERSON ( equivalent to MONEY ( ORG ) ) .

The Innsbruck Regional Court held oral hearings on DATE , DATE and DATE . On the latter date it acquitted the applicant of the charges . On DATE ORG quashed the judgment upon a plea of nullity by ORG and referred the case back to the first instance for a re - trial .

After having held oral hearings on DATE , DATE and DATE , ORG convicted the applicant of tax fraud and sentenced him to a fine of ORG CARDINAL,CARDINAL , LAW of which was suspended on probation . The judgment was served on DATE . The applicant lodged a plea of nullity .

On DATE ORG again quashed the judgment and referred the case back to the first instance .

In DATE the Innsbruck ORG commissioned an expert to determine the assessment base for the calculation of the taxes .

On DATE and DATE and on DATE further oral hearings were held . ORG remarked in a note to the file dated DATE , quoting the case PERSON v. GPE ( no . CARDINAL , DATE ) , that the length of the proceedings was already considerable , and admitted that this was attributable to the court system .

In DATE the expert opinion was delivered . During the oral hearing of DATE the Innsbruck ORG requested the expert to supplement his report , as it had turned out to be incomplete and did not answer the most relevant questions . A revised expert opinion was received in DATE .

During the oral hearing on CARDINAL DATE , at which the applicant was heard , ORG withdrew the indictment because the statutory time - limit for the prosecution of the offence had expired . Consequently , ORG acquitted the applicant of the charges ( judgment delivered orally on CARDINAL DATE , served on the applicant ’s counsel on CARDINAL DATE ) . The written judgment contained , inter alia , the following wording :

“ The above - mentioned sales transactions solely aimed at the commission of tax fraud in GPE . No levies were paid in the GPE in connection with the sale of the paintings . The profits made constitute income deriving from a business according to LAW of LAW [ GPE ] , which from an economic point of view are attributable to the applicant according to LAW of LAW [ LOC ] . Taking into account the expenses incurred , tax loads and therefore tax evasion amounting to ORG CARDINAL ( EUR ORG ) turnover tax , ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ( ORG ) income tax and ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) business tax arose .

The accused was determined to effect these transactions in order to mask his tax liability in GPE and thereby commit tax fraud . ...

From a legal point of view , it follows from the facts that the accused was to be acquitted even though the elements of the offence were fulfilled , as ORG withdrew the indictment ... ”

Following the ORG ’s notification of the present application to the ORG , the latter informed the ORG that , on DATE , ORG had lodged a plea of nullity for the preservation of the law regarding the judgment of ORG of CARDINAL DATE .

On DATE ORG held that the judgment in question had violated the applicant ’s rights under LAW , namely the right to be presumed innocent until proved guilty , on the grounds that ORG had stated in its reasoning that it considered the applicant to be guilty , even though it acquitted him .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained under LAW excessive length of their pre - trial detention . The applicant in case no . MONEY also complained under LAW about the domestic courts’ failure to speedily examine his appeals against a number of detention orders .


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

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant was born in DATE and lives in GPE .

He has a daughter , PERSON , born on DATE . He and the child ’s mother , who were not married , separated shortly after the birth . The child lives with her mother , who has sole parental authority .

NORP Since DATE , the parents have argued about contact . In DATE , the applicant lodged his first request for contact with ORG . During a hearing in DATE the parents agreed to him having supervised contact , which took place until DATE . On DATE the parents reached a further agreement for supervised contact , which was approved by ORG .

On DATE the applicant requested that the supervising ORG , which had refused to continue to be involved due to the parties’ behaviour , be replaced by another child protection association . On DATE ORG granted this request . By a letter of CARDINAL DATE , the appointed child protection association refused to act upon ORG instructions because of the mother ’s behaviour .

On DATE the applicant requested ORG to impose a coercive fine on the mother in order to enforce contact rights . On DATE the parents agreed on a court - approved contact arrangement . On DATE ORG , upon the applicant ’s request , appointed an access facilitator ( Umgangspfleger ) . The order was subject to a time - limit expiring on DATE . Subsequently , the contactarrangement was implemented in a more or less regular way .

On DATE the applicant asked the court to extend contact , reappoint a custodian ad litem ( Verfahrenspfleger ) and impose a coercive fine on the mother . In reply , the mother requested that contact be suspended for DATE . On DATE , after having again heard an expert , ORG suspended contact until DATE . The applicant ’s constitutional complaint ( no . CARDINAL/CARDINAL ) was to no avail .

On DATE the applicant requested an extension of contact following the end of the suspension period . After hearing the child in person , on DATE ORG granted the applicant contact on a DATE basis . At the same time it gave specific directions about the contact and set out sanctions to be applied if the parents did not comply with the order . Contact did not take place .

On DATE , after having heard the child again , ORG , at the mother ’s request , suspended the applicant ’s contact until the conclusion of the main proceedings and rejected his requests for a coercive fine .

On DATE ORG heard both parents , the child and the child ’s custodian ad litem . Relying on the opinion of a psychiatrist , Dr B. , submitted both in writing and explained orally , it granted the applicant contact of TIME every fortnight . It appointed a guardian , who was given specific directions as to how the child should be prepared for contact and how the meetings should be organised .

The mother appealed against this decision . The applicant pursued his request for contact and furthermore requested that ORG order the mother to supply regular information on the child ’s development .

The Court of Appeal obtained further written submissions from Dr B. , who , with regard to the development , was now of the opinion that a suspension of the applicant ’s contact was , at the moment , the less damaging approach and therefore in the child ’s best interest . Contact with the applicant as such was not found to be damaging , but the circumstances of the conflict rendered a different solution at the moment impossible . As regards the GPE conflict , the expert pointed out that the applicant had agreed on mediation , but the mother refused such a procedure . He declined any possibility for the applicant to positively and actively arrange any contact at the moment . In her written submission to ORG , the child ’s guardian expressed her view according to which , to prevent longtime damages of the child , a minimum contact with the applicant should be guaranteed in any event by allowing him to send letters and presents to the child .

On DATE ORG heard from the parents , the child ’s guardian , the child and PERSON , it rejected the applicant ’s request and suspended all contact between him and his daughter indefinitely , pursuant to Articles DATE and DATE of LAW ( see paragraphs DATE and CARDINAL below ) .

The Court of Appeal observed at the outset that the court - approved contact agreement of CARDINAL DATE was still valid . It considered , however , that contact had to be permanently suspended because ordering contact would affect the child ’s welfare . The court noted that the child had not had any contact with her father for DATE , and that he had become a stranger to her . This had been confirmed , in particular , by the courtappointed expert . When heard in court , the child had clearly stated that she did not want to see her father . She only had limited , bad memories of him . The child , who appeared to have developed properly in relation to her age , had given the impression that she knew what was at stake and what she wanted . In spite of her young age , she had clearly and firmly expressed the desire to have her own wishes respected , suggesting that she would not accept being forced into doing something she did not want . The guardian submitted that he had not succeeded in breaking the child ’s aversion to her father . According to him , the child had cried and left the room when he had started talking about her father .

ORG considered that the child ’s attitude had been influenced by the loyalty she felt towards her mother , who continuously talked negatively about the father . The child felt obliged to feel the same way as her mother . She longed for the dispute between her parents to come to an end so that she would no longer be exposed to a conflict of loyalties . She saw rejecting her father as the only way to preserve at least her mother ’s love . Relying on the expert ’s findings , ORG observed that the child was mature enough to make a conscious decision and be aware of its consequences . She found herself in a psychological dilemma caused by the communication troubles between her parents , without yet having developed post - traumatic stress disorder . On the one hand , the loss of contact with a parent generally led to a disturbance of psychological development which affected a child ’s welfare , but on the other , forced contact in the context of a continuing dispute between parents could also seriously affect the child .

ORG noted that the expert , in his opinion submitted to ORG , had explained that contact with the father did not in itself jeopardise the child ’s welfare . However , the expert considered it necessary to prepare the parents by improving their communication before reinstating contact . ORG decision had failed to take this “ prerequisite ” into account . The parents had not undertaken any steps in this direction . When heard in ORG on DATE , the expert had clarified that if the parents did not change their way of communicating , which would necessitate at least some form of professional help such as mediation , it would cause more harm to attempt to reinstate contact than to exclude it altogether .

The Court of Appeal continued :

“ Against the background of the GPE previous conduct both in and outside the courtroom , the [ ORG ] chamber rules out the possibility that the parents will be able successfully to have recourse to mediation in the foreseeable future . As a mandatory result , the father can not be granted access to H. at present ( derzeit ) and the only available option is to exclude [ him ] from contact . It is not possible to solve the child ’s dilemma by specifying the arrangements for contact ... or by appointing a custodian .

It is up to the mother to overcome her aversion to the father , and up to the father to learn that contact can only be reinstated through patience , restraint and understanding of both the mother ’s and child ’s feelings . It is furthermore not ruled out that the child , with advancing age and maturity , will be able to detach herself from her GPE dispute and seek contact with her father herself . The present decision does not exclude these options . ”

By a judgment given on DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) , ORG refused to entertain a constitutional complaint lodged by the applicant regarding the decisions taken in the main proceedings , without providing reasons .

After the applicant lodged his application with the ORG and the application had been communicated to the ORG , the family case file was sent to ORG and then back to ORG . On DATE , after its return from the Ministry , the case file was presented to a judge , who ruled : “ CARDINAL . Seen . Nothing to be done . CARDINAL . To be stored ” ( CARDINAL . PERSON . Nichts zu veranlassen . CARDINAL . Weglegen ” ) .


CASE OF AL-DULIMI AND MONTANA MANAGEMENT INC. v. SWITZERLAND

Preliminary objection dismissed (Article 35-3 - Ratione personae);Preliminary objection dismissed (Article 35-3 - Ratione materiae);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Damage - claim dismissed (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Guido Raimondi;Helen Keller;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luzius Wildhaber;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen;Robert Spano;Vincent A. De Gaetano

The first applicant was born in DATE and lives in GPE ( GPE ) . According to ORG of ORG ( ORG ) , he was head of finance for the NORP secret services under the regime of PERSON . The second applicant is a company incorporated under the laws of GPE and having its registered office in GPE , the first applicant being its managing director .

After GPE invaded GPE on DATE , ORG adopted LAW ( DATE ) of CARDINAL DATE and ORG CARDINAL ( DATE ) of DATE , calling upon ORG member GPE and nonmember GPE to apply a general embargo against GPE and on any NORP resources confiscated by the occupier , together with an embargo on air transport .

On DATE ORG adopted an ordinance providing for economic measures against GPE ( the “ GPE Ordinance ” ; see paragraph CARDINAL below ) . The applicants alleged that since that date their assets in GPE had remained frozen .

On DATE GPE became a member of ORG .

On DATE ORG adopted LAW ( DATE ) , superseding LAW ( DATE ) , among others ( see paragraph CARDINAL below ) . Paragraph CARDINAL of Resolution DATE ) reads as follows :


André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

NORP The applicant , Mr Georgijs Soročinskis , is a NORP national who was born in DATE and lives in Rīga . He was represented before the Court by Ms PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agents , PERSON and subsequently by PERSON .

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

On DATE the applicant requested a retirement pension . At that time the applicant had the status of “ permanently resident noncitizen ” of GPE ; thus , in accordance with paragraph CARDINAL of the transitional provisions of the Law on State Pensions , the periods that he had spent in employment outside the territory of GPE were not taken into account . Furthermore – under paragraph CARDINAL of the transitional provisions of the Law on State Pensions – in view of the fact that the applicant had worked in GPE for DATE , his own average DATE “ insurance wage ” ( that is to say the income in relation to which the insurance was paid ) instead of the “ average DATE insurance wage in the ORG ” ( that is to say the average DATE insurance wage of all insured persons in DATE year ) was taken into account for the purpose of calculating his pension . Accordingly , his DATE pension was set at CARDINAL NORP lats ( ORG approximately DATE ( EUR ) ) . As this sum was lower than the minimum pension set by ORG , the applicant in fact received ORG DATE ( approximately EUR CARDINAL ) .

On DATE an agreement between GPE and GPE on cooperation in the field of social security entered into force , and on DATE the applicant applied for a recalculation of his pension to take into account the periods during which he had worked in GPE . On DATE , on the basis of having acquired citizenship of GPE , the applicant applied for a further recalculation to take account of the remaining periods during which he had worked abroad . ORG took into account the periods during which the applicant had worked abroad when determining his aggregate insurance period ( for a definition of “ insurance period ” see paragraph CARDINAL below ) as being DATE and DATE ; however , as the employment periods accumulated in GPE had not increased , his own average DATE insurance wage ( and not the average DATE insurance wage in the ORG ) was again taken into account in the calculation of his pension . Even with those additions , the applicant ’s pension was still below the level of the minimum pension , as set by ORG . Thus , after the formal recalculation of his pension , the pension the applicant actually received did not increase . On DATE , in accordance with amendments to the Law on State Pensions , the applicant ’s pension was raised to LVL CARDINAL ( approximately EUR CARDINAL ) , which was the minimum pension for persons whose insurance period exceeded DATE .

The applicant continued working , and on DATE he applied for yet another recalculation of his pension . On DATE ORG recalculated the applicant ’s pension on the basis of the insurance contributions he had made following his retirement . It took the additional time period worked into account in determining the applicant ’s aggregate insurance period . However , as the period the applicant had been employed in GPE still did not reach DATE , the average DATE insurance wage in the ORG was not taken into account in the calculation of his pension . Thus , for a total employment period of DATE eleven DATE and DATE the applicant ’s pension was set at ORG CARDINAL ( approximately EUR CARDINAL ) per month . Therefore , the applicant continued receiving the minimum pension for persons whose insurance period exceeded DATE , which by then had been raised to ORG ( approximately ORG CARDINAL ) .

As the applicant continued working , his aggregate insurance period reached DATE QUANTITY months and DATE . As of CARDINAL DATE his DATE pension was raised to ORG MONEY , with an additional supplement of ORG CARDINAL .

The applicant challenged the decision of ORG of DATE before the administrative courts , complaining that following the entry into force of the agreement between GPE and GPE on cooperation in the field of social security and after he had acquired NORP citizenship his pension had not increased . He also noted that all the circumstances forming the basis of his complaint had been set out in his initial application of DATE . Invoking paragraphs CARDINAL and CARDINAL of the transitional provisions of the Law on State Pensions ( see paragraphs CARDINAL below ) he requested that his pension be recalculated by taking into account the time he had worked in GPE .

On DATE ORG dismissed the applicant ’s complaint . Having found that the crux of the applicant ’s complaint was the alleged failure to take into account the periods he had worked in GPE , the court reassessed the decision of ORG and concluded that his pension had been calculated correctly .

The applicant appealed against this decision , stating that all the circumstances forming the basis of his complaint had been outlined in his initial application . The applicant invoked paragraphs CARDINAL and CARDINAL of the transitional provisions of the Law on State Pensions . On DATE ORG dismissed the applicant ’s appeal . The applicant lodged an appeal on points of law on the same grounds .

On DATE the ORG of ORG set aside the judgment of ORG on the grounds that the court had not obtained and reviewed the applicant ’s initial application of DATE to ORG . As a result , the court had not been able to clarify the exact scope of the applicant ’s complaint .

NORP On CARDINAL DATE ORG examined the applicant ’s complaint in oral proceedings . During his oral submissions the applicant emphasised that he requested that his pension be recalculated on the basis of the average salary in the country . His total employment period was DATE , whereas the Law on State Pensions required the insurance period to be DATE in order for the average DATE insurance wage in the ORG to be used in the calculation . Despite the fact he had worked for DATE , DATE had been taken into account . The applicant concluded by stating : “ If you are a citizen then everything is taken into account in the calculation , but if you are not then it is not . ” The respondent ( that is to say ORG ) then requested the applicant to clarify the scope of the complaint , to which he replied : “ I request the pension to be recalculated on the basis of the average salary in the country . ”

On DATE ORG dismissed the applicant ’s complaint . It observed that in his initial application of DATE the applicant had requested that his pension be recalculated in accordance with general rules . It furthermore noted that the periods he had worked in GPE had been taken into account already since the agreement between GPE and GPE on cooperation in the field of social security had entered in force . Furthermore , following the applicant ’s acquisition of NORP citizenship the periods he had worked in GPE and had spent in military service had also been taken into account . The decision that was being challenged concerned the increase in the applicant ’s insurance period . Thus , the entirety of his insurance period of DATE eleven DATE and DATE had been taken into account in the calculation of his pension . In addition , the applicant was receiving the minimum State pension in the amount set for persons whose insurance period was DATE . With regard to paragraph CARDINAL of the transitional provisions of the Law on State Pensions the court noted that the applicant ’s pension had been calculated correctly , but in relation to paragraph CARDINAL it observed that this provision was not applicable to the applicant owing to its temporal limitation .

NORP In his appeal on points of law the applicant again reiterated that all the circumstances that formed the basis of his claim had been set out in the initial application . He also stated that his pension had not been recalculated on the basis of the amendments to the Law on State Pensions that had entered into force on DATE . These changes applied to persons whose insurance period was DATE , whereas his insurance period amounted to DATE . Despite that , his own salary ( instead of the average salary in the country ) had been taken into account when calculating the level of the pension to which he had been entitled . The applicant referred to CARDINAL and DATE of the transitional provisions of the Law on State Pensions , as well as to procedural provisions of LAW .

On DATE the ORG of ORG rejected the applicant ’s appeal on points of law , noting that it contained no arguments as to how the judgment of ORG had contravened the legal provisions he had referred to .

The Law on State Pensions , which entered into force on DATE , provides that CARDINAL of the components to be taken into account in the calculation and allocation of pensions is the “ insurance period ” . Under section CARDINAL of the Law on State Pensions , the insurance period is the period of time over which an insured person has made social insurance contributions or such contributions have been made or should have been made on that person ’s behalf . With regard to the time period prior to CARDINAL DATE ( when the social insurance system had not yet been established ) , paragraph CARDINAL of the transitional provisions of the Law on State Pensions , as in force at time when it was applied to the applicant , provided :

“ CARDINAL . In the case of NORP citizens , repatriated persons , and their family members and their descendants , periods of employment and periods treated as equivalent to employment that have been accrued within or outside GPE prior to DATE shall count towards the insurance period , which is necessary for the allocation ( [ or ] recalculation ) of the State pension , irrespective of [ any prior ] payment of social insurance contributions . In the case of foreign nationals and stateless persons who were resident in GPE on DATE , the insurance period shall be composed of periods of employment and periods treated as equivalent to employment that have been accrued within GPE , as well as periods treated as equivalent to employment that have been accrued outside GPE in the cases specified in sub - paragraphs ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of this paragraph . The following periods , which are treated as equivalent to employment accrued up to DATE ... shall be considered as counting towards the insurance period to be taken into account in calculating the pension :

( CARDINAL ) periods of study at higher - education institutions , and at other training institutions at post - secondary level ;

( CARDINAL ) periods of doctoral study , ... postgraduate education or ongoing vocational training ;

( CARDINAL ) time spent in places of detention by victims of political persecution ... [ or ] in exile , and time spent escaping from such places , those periods to be multiplied by CARDINAL , or by CARDINAL in the case of time spent in the [ NORP ] LOC and regions treated as equivalent . ... ”

Under paragraph CARDINAL of the transitional provisions of the Law on State Pensions , with respect to the transitional period , another component that is taken into account in the calculation of the pension is the person ’s average DATE insurance wage within a specified time period . Thus , with respect to persons who retired in DATE , that person ’s average DATE insurance wage over DATE until DATE was taken into account . If , however , ( i ) the person ’s insurance period in GPE was not less than DATE ( save for politically persecuted persons , in relation to whom a different methodology applied ) and if the person ’s average DATE insurance wage for DATE was below the average DATE insurance wage in the ORG in DATE , or ( ii ) the person had been officially unemployed , the average DATE insurance wage in the ORG in DATE was taken into account in the calculation of his or her pension .

On DATE the transitional provisions of the Law on State Pensions were supplemented by paragraph CARDINAL , which provides that in calculating the pension payable to a person whose insurance period is not less than DATE and whose average DATE insurance wage , as calculated in accordance with paragraph CARDINAL of these transitional provisions , is lower than the average DATE insurance wage in the ORG in the period DATE and DATE , the average DATE insurance wage in the ORG over the said DATE should be taken into account . The retrospective application of this provision is limited to pensions that were granted after DATE .

The Government submitted a letter of DATE from ORG , the relevant part of which stated :

“ “ The favourable model of calculating a person ’s pension ” enshrined in paragraph CARDINAL of the transitional provision of the PERSON would not be applied to a NORP citizen in the following situations :

CARDINAL ) In DATE a NORP citizen requests a retirement pension for a total insurance period of DATE , of which DATE are [ accrued ] in GPE but DATE [ are accrued ] in GPE . The pension is calculated for DATE but the average DATE insurance wage in the ORG is not taken into account in the calculation of the initial capital , as the insurance period in GPE is below DATE ;

CARDINAL ) In DATE a NORP citizen requests a retirement pension for a total insurance period of DATE , of which DATE are [ accrued ] in GPE but DATE [ are accrued ] in GPE . In accordance with the legislation , GPE grants and pays the retirement pension only for DATE [ accrued ] in GPE ; accordingly , the average DATE insurance wage in the ORG is not taken into account in the calculation of the initial capital , as the insurance period for which GPE pays is DATE ;

CARDINAL ) In DATE a NORP citizen requests a retirement pension for a total insurance period of DATE , of which DATE are [ accrued ] in GPE but DATE [ are accrued ] in GPE . In accordance with the Agreement between GPE and GPE on the cooperation in the field of social security , GPE grants the retirement pension only for the insurance period accrued in GPE – DATE . Accordingly , the average DATE insurance wage in the ORG is not taken into account in the calculation of the initial capital , as the insurance period for which GPE pays is DATE . ”


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

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

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

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

When a person is sentenced to a determinate term of imprisonment , the normal practice is for that person to be released “ on licence ” after serving CARDINAL of the sentence . The licence period usually lasts for the remainder of the sentence and during this period the person may be recalled to prison if he or she breaches the conditions of the licence .

When an offender is convicted of certain sexual or violent offences , the sentencing court may pass an “ extended sentence ” ( see paragraphs CARDINAL below ) . In such cases , if the offender is sentenced to a determinate term of imprisonment he or she is usually released after serving CARDINAL of that sentence . However , an additional licence period known as “ the extension period ” takes effect after the normal licence period ceases . This extension period can be of such length as the court considers necessary to protect members of the public from serious harm .

In GPE and GPE persons convicted of certain sexual offences are required to notify the police of various personal details . This includes the person ’s current address , any change of address and any other address at which they stay for DATE or more . They must provide their national insurance numbers to the police and must allow the police to take their photograph and fingerprints for the purpose of verifying their identity . They must also give advance notice to the police of any foreign travel .

These notification requirements were first enacted in LAW and subsequently re - enacted , with minor amendments , in sections CARDINAL of LAW DATE ( “ the ORG DATE ” – see paragraphs DATE below ) . The notification period varies according to the term of imprisonment imposed on the offender . For a person sentenced to a term of imprisonment of DATE , it is DATE from the date of conviction , but for a person sentenced to a term of imprisonment of DATE or more it is indefinite .

In NORP v. S ( PERSON ) [ DATE ] ORG R CARDINAL ORG , in observations which were subsequently treated as obiter , expressed the view that on plain construction the phrase “ term of imprisonment ” in the ORG DATE did not include a sentence of extended licence . However , in R v. ORG [ DATE ] CARDINAL Cr App ( S ) CARDINAL ORG held that in this respect R v. S ( PERSON ) had been decided per incuriam and was wrong . In determining the length of the “ qualifying sentence ” for the purposes of making an order disqualifying an offender from working with children , ORG found that the whole length of the extended sentence had to be taken into account .

On DATE the applicant pleaded guilty to CARDINAL offences of taking indecent photographs of a child , CARDINAL offences of voyeurism and CARDINAL of indecent assault . The maximum penalty for the offences of taking indecent photographs of a child and indecent assault was DATE imprisonment .

On DATE the applicant was sentenced in respect of the most serious of the offences to an extended sentence . This extended sentence comprised a custodial term of DATE and an extension period of DATE . Lesser sentences were imposed for the other offences . The sentencing judge gave the applicant credit for his early guilty pleas , his previous absence of any criminal convictions , his genuine remorse and his disgust at his own behaviour .

On DATE the applicant was issued with a notice by the prison at which he was detained stating that he would be subjected to the sex offender notification requirements for a period of DATE . However , the notice warned that it was “ not a complete statement of the law . ” It went on to add : “ It is suggested that you confirm this with the police when you make your notification on release from imprisonment . It is your responsibility to check this if you are not certain . ”

NORP The Chief Constable of GPE subsequently notified the applicant by letter of CARDINAL DATE that he would be subjected to the notification requirements indefinitely . The Chief Constable reasoned that the applicant had been sentenced to a term of imprisonment of DATE since the extended sentence was CARDINAL of fiftyfour DATE ( the custodial term of DATE plus the extension period of DATE ) .

The applicant disagreed with the Chief Constable ’s interpretation of the relevant statutory provisions . He considered that , when calculating the term of imprisonment , only the custodial term should have been counted and , given that this was DATE , the notification period should only have been DATE . Accordingly , in DATE he sought judicial review of the Chief Constable ’s decision .

In the course of the judicial review proceedings , the applicant also submitted that the legal framework in respect of the notification requirement lacked the degree of clarity and certainty required to be “ in accordance with the law ” within the meaning of LAW ; and that the Chief Constable ’s interpretation of the relevant legislation constituted a disproportionate interference with his right to respect for his private life under that Article . He further submitted that there had been a breach of LAW taken in conjunction with LAW because , after he had been sentenced , the sentencing regime had changed so that for persons sentenced after DATE an extended sentence was no longer available unless they either had a previous conviction for a serious offence or the custodial term was DATE imprisonment ( see paragraph CARDINAL below ) . As a consequence , someone in his position sentenced under the new sentencing regime would not receive the extended sentence he received .

NORP In support of his LAW argument , the applicant relied on PERSON v. GPE , no . MONEY , DATE , in which the ORG had accepted that the different treatment of different categories of prisoners depending on the sentences imposed on them was based on “ other status ” .

By judgment of DATE ORG dismissed the applicant ’s claim . Having reviewed both the domestic legislation and caselaw , it considered “ it plain that the entirety of the extended sentence is a sentence of imprisonment ‘ in respect of the offence’ for which it is imposed ” .

Therefore , in respect of LAW , the court held that the legal framework was sufficiently certain to satisfy the “ in accordance with the law ” requirement . Furthermore , as the purpose of the extension period was to manage and reduce the risk posed by an offender it was proportionate for the extension period to be included in any calculation of the notification period . The legislature had been entitled to fix the threshold for indefinite notification at DATE . In doing so , it had struck a fair balance for the purposes of LAW .

In respect of Article CARDINAL taken in conjunction with Article CARDINAL , the court considered itself bound by the ORG of Lords’ judgment in R ( PERSON ) v the Secretary of ORG for ORG [ DATE ] CARDINAL ORG CARDINAL , which had ruled that the treatment of prisoners based on differences in length of sentence did not constitute differential treatment on the ground of “ other status ” , even though in PERSON v. the GPE this ORG had subsequently reached the opposite conclusion . In any event , ORG found it “ difficult to see how changes in the legislative regime referred to , affecting those sentenced at different dates , could give rise to discrimination ” .

The Court of Appeal unanimously dismissed the applicant ’s appeal on DATE . It upheld ORG finding that the prison term for the purpose of ascertaining the notification period was the aggregate term of the extended sentence . In this regard , it noted that “ ORG was , with respect , plainly right on the short ground that the statutory language permits no other sensible conclusion ” .

In respect of LAW , the applicant had submitted that the imposition upon him of an indefinite notification requirement had been arbitrary and disproportionate . However , the court found that , given the purposes of the notification requirement and of extended sentences , there was nothing “ arbitrary ” or disproportionate in the imposition of an indefinite notification requirement in the applicant ’s case . Moreover , it would , in time , be possible for the applicant to seek review of the indefinite notification period ( see paragraph CARDINAL below ) .

In respect of Article CARDINAL taken in conjunction with Article CARDINAL , the court observed that all that had happened was that ORG had altered its views as to the threshold for indefinite notification requirements . That did not generate retrospectively a good LAW argument . Furthermore , Laws LJ considered that ORG , like ORG , was bound by ORG judgment in R ( PERSON ) v the Secretary of ORG for ORG .

On DATE , ORG refused the applicant permission to appeal .

In DATE , when the applicant was sentenced , extended sentences were regulated by CARDINAL of ORG ) Act DATE ( “ the CARDINAL Act ” ) which provided , as relevant :

“ CARDINAL Sexual or violent offences : extension of certain custodial sentences for licence purposes .

( CARDINAL ) This section applies where a court —

( a ) proposes to impose a custodial sentence for a sexual or violent offence committed on or after DATE ; and

( b ) considers that the period ( if any ) for which the offender would , apart from this section , be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation .

( CARDINAL ) Subject to subsections ( CARDINAL ) to ( CARDINAL ) below , the court may pass on the offender an extended sentence , that is to say , a custodial sentence the term of which is equal to the aggregate of —

( a ) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ( “ the custodial term ” ) ; and

( b ) a further period ( “ the extension period ” ) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection ( CARDINAL ) above .

( CARDINAL ) The extension period shall not exceed —.

( a ) DATE in the case of a sexual offence ; and

( b ) DATE in the case of a violent offence .

( CARDINAL ) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence . ”

The Criminal Justice Act DATE ( “ the ORG DATE ” ) subsequently enacted new provisions governing extended sentences for offences committed after DATE .

Before an extended sentence may be imposed under the new provisions the court must find that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences ( section CARDINALA of the ORG DATE ) .

Further requirements for the imposition of an extended sentence were added as of DATE . These additional requirements are that the offender must either :

( i ) have a previous conviction for a serious offence ( as defined in Schedule CARDINALA to the ORG DATE ) ; or

( ii ) have committed an offence or offences meriting a custodial term of DATE ( section CARDINALA of the ORG DATE ) .

The notification requirements for those convicted of certain sexual offences are now contained in LAW DATE ( “ the ORG DATE ” ) . Section CARDINAL sets different notification periods . For a person sentenced to a term of imprisonment of DATE but DATE , the notification period is DATE . For a person sentenced to QUANTITY or more , the notification period is indefinite .

A person subject to the notification requirements is required to give the police his biographical information ( his name(s ) , date of birth , ORG number , his home address and any other address at which he regularly resides or stays ) as well as any changes to that information ( sections DATE ) and CARDINAL ) . Section CARDINAL provides for periodic notification of the information specified in section CARDINAL(CARDINAL ) .

Section CARDINAL requires notification of any travel arrangements outside GPE , including the date on which the offender will leave , the country ( or the first country ) to which he will travel and his point of arrival in that country , and any other information which the offender holds about his departure from or return to GPE or his movements while outside GPE .

Section CARDINAL(CARDINAL ) provides that , where a notification is given , the relevant offender must , if requested to do so by a police officer or authorised person , allow the officer or person to take his fingerprints and/or photograph any part of him .

By CARDINAL ) it is an offence to fail , without reasonable excuse , to comply with these requirements .

The applicants in R ( on the application of F ) and ORG had sought a declaration that in the absence of any mechanism for review , the indefinite notification period under LAW was incompatible with LAW . A ORG of ORG granted the declaration of incompatibility and ORG upheld that decision . The Secretary of ORG appealed to ORG .

ORG dismissed the appeal . It accepted that the indefinite notification requirement under the SOA DATE was capable of causing significant interference with the right to respect for private and family life and , in the absence of any provision for individual review of the requirement , it constituted a disproportionate interference with LAW .

Following R ( F ) and ORG , the ORG DATE was amended so as to make provision for review of the indefinite notification requirement . In respect of GPE and GPE , the review provisions are set out in sections CARDINAL - F. Pursuant to these provisions , an offender over DATE can , after DATE , apply to the Chief Officer of Police for the area in which he resides for a determination that he or she should no longer be subject to the indefinite notification requirement ( section CARDINALB ) . The offender must satisfy the relevant Chief Officer of Police that indefinite notification is no longer necessary for the purpose of protecting the public or any particular members of the public from sexual harm ( section MONEY ) ) . There is a right of appeal to the local ORG against any negative determination by the Chief Officer of Police ( section CARDINALE ) .


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

NORP The applicant , PERSON , is an GPE national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON of ORG and by Ms C. Meredith of ORG , lawyers practising in GPE .

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

NORP The applicant claims that she was trafficked to GPE . On DATE she was convicted of conspiracy to control prostitution for gain , CARDINAL offences relating to identity documents , and removing criminal property from GPE .

On DATE the applicant claimed asylum on the grounds that she would be at risk on return to GPE as an NORP and because the authorities would have become aware of her criminal conviction in GPE . She also alleged that she would be at risk of further trafficking . Her application was refused .

The applicant was served with an order for deportation in DATE . She appealed unsuccessfully against the order , invoking the same grounds raised in her asylum application .

On DATE the applicant applied to revoke the deportation order but the Secretary of ORG refused her application and certified her asylum and human rights claim as clearly unfounded . Removal directions were set for DATE .

Prior to her deportation , the applicant applied to ORG for an interim measure under LAW on the grounds that she would be at risk of ill - treatment at the hands of the NORP authorities owing to her criminal conviction for controlling prostitution . Her request was rejected owing to its late submission and she was deported to GPE . Following her arrival at GPE airport , she was detained by the police for TIME . During this time they took her finger prints in order to check her criminal record .

The applicant then asked the ORG to grant an interim measure ordering her to be returned to GPE . Although the ORG refused this request , it urgently communicated her complaint under LAW . However , examination of the complaint was adjourned on DATE at the applicant ’s request as she had an out - of - country appeal pending before ORG .

On DATE the ORG was informed that the applicant had been returned to GPE on DATE to pursue her appeal in - country after a ORG judge found the Secretary of ORG ’s decision to certify her claim as clearly unfounded to be unlawful .

On DATE the ORG wrote to both the applicant and Government asking whether , in light of recent developments , they would agree to the application being declared inadmissible , subject to the applicant ’s right to reintroduce her complaint if she was not satisfied with the progress or outcome of the domestic proceedings . The parties were asked to contact the ORG by DATE at the latest . By letter of CARDINAL DATE the Government informed the ORG that they agreed to its proposal . To date , no response has been received from the applicant .


CASE OF MAGYAR TARTALOMSZOLGÁLTATÓK EGYESÜLETE AND INDEX.HU ZRT v. HUNGARY

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first applicant , ORG ( “ ORG ” ) is an association seated in GPE . It is the self - regulatory body of NORP Internet content providers , monitoring the implementation of a professional code of Internet content providing and a code of ethics , as well as operating an arbitration commission whose decision are binding on its CARDINAL members .

The second applicant , Index.hu PERSON ( “ Index ” ) is a company limited by shares , seated in GPE . It is the owner of CARDINAL of the major Internet news portals in GPE .

At the material time both applicants allowed users to comment on the publications appearing on their portals . Comments could be uploaded following registration and were not previously edited or moderated by the applicants .

The applicants advised their readers , in the form of disclaimers , that the comments did not reflect the ORG own opinion and that the authors of comments were responsible for their contents .

Both applicants put in place a system of notice - and - take - down , namely , any reader could notify the service provider of any comment of concern and request its deletion . In addition , in the case of Index , comments were partially moderated , and removed , if necessary .

Both portals stated that comments infringing the personality rights of others could not be uploaded on the websites .

Index ’s “ Principles of moderation ” contained the following :

“ I. Deletion of comments

Especially forbidden are :

comments that , at the time of their posting , infringe the laws of GPE , indicate or incite to crime or any other unlawful act ...

NORP vulgar , aggressive , threatening comments . What is vulgar , aggressive or threatening has to be decided by the moderators , in the light of the given topic ... ”

On DATE ORG published an opinion under the title “ Another unethical commercial conduct on the net ” CARDINAL real estate management websites , owned by the same company . According to the opinion , the CARDINAL websites provided DATE long advertising service for their users free of charge . Following the expiry of the DATE free period , the service became subject to a fee ; and this without prior notification of the users . This was possible because , by registering on the website , the users accepted the terms and conditions stipulating that they could be changed unilaterally by the service provider . The opinion also noted that the service provider removed any obsolete advertisements and personal data from the websites only if any overdue charges were paid . The opinion concluded that the conduct of the service provider was unethical and misleading .

NORP The opinion attracted some comments of users , acting under pseudonyms , amongst which there were the following :

“ They have talked about these CARDINAL rubbish real estate websites ( “ két szemét ingatlanos oldalról ” ) CARDINAL times already . ”

“ Is this not that ORG - sort - of sly , rubbish , mug company ( “ benkősándoros sunyi szemét lehúzó cég ” ) again ? I ran into it DATE , since then they have kept sending me emails about my overdue debts and this and that . I am CARDINAL [ NORP forints ] now . I have not paid and I am not going to . That ’s it . ”

On DATE the Internet portal www.vg.hu , operated by ORG , reproduced the opinion word by word under the title “ Another mug scandal ” .

NORP The consumer protection column of Index also wrote about the opinion under the title “ Content providers condemn [ one of the incriminated property websites ] ” , publishing the full text of the opinion . CARDINAL of the user comments posted on Index by a reader acting under a pseudonym read as follows :

“ People like this should go and shit a hedgehog and spend all their money on their ORG tombs until they drop dead . ” ( “ PERSON ilyenek szarjanak sünt DATE az összes bevételüket anyjuk sírjára , amíg PERSON dögölnek . ” )

On DATE the company operating the websites concerned brought a civil action before ORG against the applicants and PERSON . The plaintiff claimed that the opinion , whose content was false and offensive , and the subsequent comments had infringed its right to good reputation .

Once learning of the impending court action , the applicants removed the impugned comments at once .

In their counterclaims before ORG , the applicants argued that they , as intermediary publishers under LAW no . CVIII of DATE , were not liable for the user comments . They noted that the business practice of the plaintiff , affecting wide ranges of consumers , attracted numerous complaints to the consumer protection organs and prompted several procedures against the company .

On DATE ORG partially sustained the claim , holding that the plaintiff ’s right to good reputation had been infringed . As a preliminary remark , the court observed that consumer protection bodies had instituted various proceedings against the plaintiff company , since it had not informed its clients adequately about its business policies .

The ORG found that the comments ( see paragraphs CARDINAL and CARDINAL above ) were offensive , insulting and humiliating and went beyond the acceptable limits of freedom of expression . The court rejected the applicants’ argument that they were only intermediaries and their sole obligation was to remove certain contents , in case of a complaint . It found that the comments constituted edited content , fell in the same category as ORG letters and the respondents were liable for enabling their publication , notwithstanding the fact that later on they had removed them .

As regards the content of the opinion as such , the court found that it had contributed to an on - going social and professional debate on the questionable conduct of the real estate websites and did not exceed the acceptable level of criticism .

Both parties appealed . In their appeal the applicants argued that the plaintiff had not requested them to remove the offensive comments . Nonetheless , they had done so as soon as soon as they had been informed of the plaintiff ’s action . They also argued that ORG comments were to be distinguished from ORG letters , since these latter were only published on the basis of editorial decisions , whereas comments did not constitute edited content . They argued that , in respect of comments , they had only acted as service providers of information storage .

On DATE ORG upheld in essence the first - instance decision but amended its reasoning . It ordered each applicant to pay MONEY ( ORG ) as first - instance and ORG CARDINAL as second - instance procedural fee .

ORG held that – as opposed to ORG letters whose publication was dependent on editorial decisions DATE the comments , unedited , reflected the opinions of the sole commenters . Notwithstanding that , the owner of the website concerned was liable for them . According to the court ’s reasoning , Act no . CVIII of DATE , transposing Directive CARDINAL on ORG into NORP law , did not apply to the applicants’ case since it only related to electronic services of commercial nature , in particular to purchases through the Internet . Under section CARDINAL(CARDINAL ) of the LAW , electronic commercial services were information society - related services whose purpose was the sale , purchase or exchange of a tangible and moveable property , which was not the situation in the ORG case . In any event , pursuant to its section CARDINAL(CARDINAL ) , the scope of the LAW did not extend to expressions made by persons acting outside the sphere of economic or professional activities or public duties , even if uttered in connection with a purchase through the Internet . For ORG , the comments were private utterances which did not fall under Act no . CVIII of DATE on ORG . Thus , there was no reason to assess the meaning of the terms of ‘ hosting service providers’ and ‘ intermediaries’ under that LAW . Nonetheless , the comments attracted the applicability of LAW rules on personality rights , notably Article CARDINAL . Since the comments were injurious for the plaintiff , the applicants bore objective liability for their publication , irrespectively of the subsequent removal , which was only relevant for the assessment of any compensation .

The applicants lodged a petition for review with the GPE . They argued that , in their interpretation of the relevant law , they were under no obligation to monitor or edit the comments uploaded by readers on their websites .

On DATE the GPE upheld the previous judgments . It stressed that the applicants , by enabling readers to make comments on their websites , had assumed objective liability for any injurious or unlawful comments made by those readers . It rejected the applicants’ argument that they were only intermediary providers which allowed them to escape any liability for the contents of comments , other than removing them if injurious to a third party . The PERSON held that the applicants were not intermediaries in terms of section CARDINAL(lc ) of Act no . CVIII and they could not invoke the limited liability of hosting service providers . It shared ORG view in finding that the comments were capable of harming the plaintiff ’s good reputation and that the applicants’ liability consisted of their having allowed their publication .

The PERSON imposed ORG CARDINAL on each applicant as review costs , including the costs of the plaintiff ’s legal representation .

This decision was served on DATE .

The applicants introduced a constitutional complaint on DATE , arguing in essence that the ORG rulings holding them responsible for the contents of the comments amounted to an unjustified restriction on their freedom of expression .

On DATE ORG declared the complaint admissible .

On DATE ORG dismissed the constitutional complaint , ( decision no . CARDINAL/CARDINAL . ( V.CARDINAL . ) AB ) . In the analysis of the proportionality of the interference , ORG explained the absence of unconstitutionality in the case as follows .

“ [ CARDINAL ] In the case concerned by the PERSON ’s judgment , the operator of the webpage did not moderate the comments . The identities of those primarily responsible , unless figuring nominatively , are unknown ; and for that reason , the liability lies with the operator of the webpage .

[ DATE ] In the present case , the aggrieved fundamental right is not the right to freedom of expression as such , but CARDINAL of its particular elements , the right to freedom of the press .

[ CARDINAL ] It is without doubt that blogs and comments constitute expressions and as such attract the protection of LAW .

[ CARDINAL ] The liability incumbent on the operator of the webpage obviously restricts freedom of the press – which includes , without doubt , communication on the Internet .

[ CARDINAL ] The legislation pursues a constitutionally justified aim . It is also suitable for that purpose in that , without the liability of the operator of the webpage , the person concerned could hardly receive compensation for the grievance . However , the proportionality of the restriction is open to doubt from CARDINAL perspectives : is it proportionate to hold the operator of the webpage liable for the expression which proved to be unlawful ; and moreover , is the extent of the liability ( that is , the amount of compensation ) proportionate ?

[ CARDINAL ] If the liability for the publication of comments is based on the very fact of the publication itself , it is not justified to distinguish between moderated and non - moderated comments in regard to the proportionality of the restriction on the fundamental right in question . ... ORG has already held that the liability of press organs – not of the author – as applied in order to protect personality rights is constitutional . ”


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicants were born in DATE and DATE respectively . The first applicant lives in GPE and the second applicant lives in GPE .

Mr Ts . Mihalev , father of the first applicant and grandfather of the second applicant , owned a machinery factory in GPE , which was nationalised in DATE . After the nationalisation the property was allocated for use to a ORG - owned enterprise , which in DATE was transformed into a ORG - owned company named T .. Under domestic law , such a transformation entailed the newly - created company becoming , in principle , the owner of the assets which had until then been allocated to it for use and management ; some assets allocated to ORG - owned enterprises or companies could nevertheless be the subject of restitution ( see paragraph CARDINAL below ) .

After ORG of Nationalised Real Property Act ( hereinafter “ the LAW ” , see paragraphs CARDINAL - CARDINAL below ) came into force in DATE , the first applicant and his brother asked the mayor of GPE to strike the factory building out of the register of ORG properties . Their request was allowed in a decision of the mayor of CARDINAL DATE , which explicitly referred to LAW . On that basis in DATE the first applicant and his brother obtained a notary deed , which also stated that the property had been subject to restitution under LAW .

In DATE the first applicant and his brother concluded a rent contract with company ORG , which undertook to pay rent in exchange of the use of the building . The term of the contract was extended on several occasions , the last of which in DATE .

In DATE the first applicant ’s brother transferred his share in the building to his daughter , the second applicant .

After the entry into force of ORG ( hereinafter “ LAW ” , see paragraph CARDINAL below ) , in DATE the first applicant and his brother applied to receive compensation for moveable properties such as industrial equipment and materials which had been nationalised together with the factory . In a decision of DATE the Minister of Economy awarded them compensation for these properties , noting in addition that the factory building had been the subject of restitution and no compensation was due for it . That decision was upheld in a final judgment of ORG of DATE , after the first applicant and his brother sought its judicial review , contesting the manner of compensation . Eventually , in DATE they received compensation bonds with a face value of MONEY ( ORG , the equivalent of MONEY ( ORG ) ) .

Company T. was privatised in DATE and the new management stopped paying rent to the applicants for the factory building , arguing that it had in fact never been subject of restitution .

NORP In DATE company T. brought proceedings against the applicants , claiming to be the factory building ’s owner . It argued that the restitution of the property had not taken place , because the preconditions under LAW had not been complied with , and that it had become the owner of the building as a result of its transformation into a company ( see paragraph CARDINAL above ) .

NORP In a judgment of CARDINAL DATE ORG dismissed the claim . However , on DATE the ORG of Appeal quashed the lower court ’s judgment and allowed the action against the applicants , finding that the preconditions for restitution had indeed not been met . On the basis of expert evidence and witness testimony , it concluded that after the nationalisation the building had been modified in a manner and to a degree which meant that in DATE it had not existed in its state prior to DATE . Accordingly , the applicants could not rely on restitution and company ORG had become the owner of the building on the strength of its transformation from a ORG - owned enterprise into a company in DATE ( see paragraph CARDINAL above ) . In a final decision of CARDINAL DATE ORG refused to accept for examination the ORG appeal on points of law .

NORP In DATE the applicants applied to the GPE regional governor to receive compensation for the factory building under LAW . In a decision of DATE the governor dismissed their request , as it had not been submitted within the time - limit provided for under that LAW ( see paragraph CARDINAL below ) . After the applicants applied for its judicial review , the governor ’s decision was upheld in a final judgment of ORG of DATE .


Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

The applicant ’s son ORG was born on DATE .

On DATE the applicant killed his wife by stabbing her several times with a knife . She died on DATE . The applicant ’s son , DATE at the time , witnessed the murder .

On DATE the applicant was arrested .

On DATE N. ’s maternal grandmother PERSON was appointed PERSON ’s guardian .

On DATE the ORG of Perm found that the applicant could not be held responsible for the murder of his wife which had been committed owing to a temporary psychiatric disorder in the form of an acute reaction to stress . It ordered compulsory psychiatric treatment for the applicant in a psychiatric hospital .

On DATE ORG ( “ the Regional Court ” ) upheld the above decision on appeal .

On DATE the ORG of Perm found that psychiatric treatment was no longer necessary and ordered the applicant ’s release from the psychiatric hospital .

According to the certificate issued by ORG , the applicant remained under psychiatric supervision until DATE .

On DATE the applicant applied to ORG for GPE ( “ the childcare authority ” ) in order to have the child returned to him .

On CARDINAL DATE the childcare authority rejected the applicant ’s request .

NORP The childcare authority and ORG instituted court proceedings seeking to deprive the applicant of his parental responsibility over N. The applicant brought a counterclaim , challenging the childcare authority ’s refusal to return the child to him and seeking the termination of ORG ’s guardianship over N.

On DATE ORG dismissed the application by the childcare authority and ORG to deprive the applicant of his parental responsibility over N. It also dismissed the applicant ’s counterclaim to end PERSON ’s guardianship over ORG and to return PERSON to him . In taking that decision ORG relied on the report of a psychological examination of the child carried out on DATE by a municipal centre for children ’s psychological , medical and social adaptation . The report stated , in particular , that ORG was in the process of developing the basis of his mental and psychological health , for which he needed stability , to be provided first and foremost by constant caregiver figures and a permanent place of residence . Based on the report the court found that ORG had been living with and had been brought up by ORG from DATE , that he had not seen his father for DATE , since DATE , that the applicant had been working on shifts and was out of town DATE out of CARDINAL , that ORG was going to start primary school and that ORG had already chosen a school near the boy ’s place of residence . The court concluded that , in view of the age of the child and his attachment to ORG , a change of his place of residence could be traumatic and was therefore undesirable . The court noted , however , that the applicant still had the possibility to communicate with ORG and meet him .

On DATE ORG upheld the above judgment on appeal .

On CARDINAL DATE the Justice of ORG ordered the applicant to pay child maintenance to ORG in an amount that was equal to CARDINAL of his income , starting from CARDINAL DATE until the child ’s coming of age . The judgment became final on DATE . The applicant makes regular payments .

On DATE the applicant applied to ORG ( “ the ORG ” ) for contact rights . He submitted that PERSON was preventing him from seeing PERSON and asked to be granted visiting rights every DATE or DATE for TIME in PERSON ’s presence .

During the hearing the applicant stated that it was very important for him to resume contact with his son . He was aware that his son , who had not seen him for a long time , needed time to get used to him again . He was ready to change his place of work to be able to adapt better to his son ’s schedule . He also stressed that he paid child maintenance and supported him financially . He was under psychiatric supervision and his mental health had improved .

V. stated that the applicant had intentionally and cruelly killed ORG ’s mother . He had committed the murder in front of ORG and had thereby caused him profound psychological trauma . The applicant should not be allowed to see ORG as it would undermine his health and psychological development . It would therefore be against ORG ’s interests to resume contact with his father .

On DATE ORG ordered a psychological examination of ORG to establish whether it was possible to resume contact between ORG and his father , and if so what form that should take , and the frequency and duration of contact . The experts were also asked to establish whether contact between ORG and his father could damage ORG ’s health or psychological development .

On DATE the applicant informed ORG that he would be on a business trip from DATE to DATE and asked that no hearings be scheduled during that period .

On DATE ORG scheduled a hearing in the case for DATE .

According to the Government , on DATE a court clerk notified the applicant of the hearing of CARDINAL DATE by calling him on his mobile telephone , and on CARDINAL DATE by sending him a letter by registered mail , which was , however , returned undelivered on CARDINAL DATE .

According to the applicant , he was never informed about the hearing of CARDINAL DATE . He submitted a list of telephone calls , provided by his mobile operator , showing that he had received no calls from the court .

On DATE ORG held a hearing . The applicant and his counsel were absent . PERSON did not attend either . The record of the hearing reads as follows :

“ The secretary reported on the appearance [ of the parties at the hearing ] .

Failed to appear : plaintiff , defendant , notified . [ Defendant ] informed that impossible to participate at hearing owing to visit to a sanatorium with the child .

The possibility of examination of the case in the absence of the parties is considered .

[ Representative of childcare authority ] : [ I ] consider it possible .

The court ... held : continue examination of the case ... ”

On DATE ORG dismissed the applicant ’s application . ORG took the following factual elements into consideration :

- the applicant was the father of ORG , a minor , aged DATE at the time ;

- the child ’s mother had died on DATE from multiple stab and cut wounds inflicted on her by the child ’s father , the applicant ;

- pursuant to the decision of CARDINAL DATE the applicant had been exempted from criminal responsibility for the murder of his wife and ordered to have compulsory psychiatric treatment in a psychiatric hospital ;

- the murder had been committed in the presence of the child ;

- on DATE the compulsory psychiatric measures in respect of the applicant had been lifted ;

- on DATE the child ’s maternal grandmother PERSON had been appointed the child ’s guardian ;

- the child resided with ORG , his housing conditions were adequate and he had been provided with the necessary clothing , a place for play and rest , as well as toys and books ;

- the applicant wished to see the child on a DATE basis , on DATE or DATE , by taking him out to the cinema , theatre and other places for children and by being afforded an opportunity to stay with the child at his paternal PERSON house ;

- on DATE ORG had dismissed the claims of the childcare authority and ORG to deprive the applicant of his parental responsibility over ORG and had dismissed the applicant ’s counterclaim to end PERSON ’s guardianship over ORG and to return PERSON to him ;

- the applicant ’s housing conditions were adequate ;

- the childcare authority had expressed a view that the applicant ’s claim should be dismissed as being contrary to the child ’s interests ;

- that according to the report of CARDINAL DATE issued by the municipal centre for children ’s psychological , medical and social adaptation , presented by ORG :

“ During the examination ORG behaved restlessly , he wandered from room to room and performed chaotic movements with the keys . It can be assumed that the child is in a state of stress ... Only after a certain time ... the boy relaxed and started talking calmly , and agreed to draw a family . ORG appeared stressed when drawing . On the drawing the boy depicted his mum , dad and himself . However , it is unclear why the whole family was drawn by the boy . This could reflect the child ’s wish to have a full family , or it could mean that the murder of his mother has been erased from the child ’s memory , which could be a defensive mechanism .

Having compared ORG ’s references from the nursery school dated DATE and the above observations of CARDINAL DATE , it can be noted that the child ’s behaviour has changed , showing signs of acute psychological and traumatic distress . This is confirmed by the child ’s grandmother , who submitted that the child is agitated ... has difficulty falling asleep , cries in his sleep and has started to show aggression ... In the [ psychological centre ] N. also displayed verbal aggression to other children . [ The psychologist ] therefore came to the conclusion that ORG needed timely psychological or psychotherapeutic assistance to overcome the consequences of a psychological trauma . ”

- reports from ORG ’s nursery school , dated DATE , and from his current kindergarten ;

- the carrying out of a psychological examination of the child , as ordered by the court on DATE , had been impossible owing to ORG ’s refusal to allow the experts to have access to the boy , meaning the case material was returned to the court by the expert without enforcement .

In the light of the foregoing , ORG concluded that it was not in ORG ’s interests to resume contact with his father . ORG noted , in particular , that the applicant had not submitted any information about the current state of his mental health , and he had not shown that his mental health had improved or that he did not present a danger to N. Furthermore , ORG took into account the fact that ORG had been brought up by his grandparents from DATE , that he had an established way of life and that he had not seen his father for a long time . The applicant often left on long business trips , which would prevent DATE meetings . Lastly , both grandparents had refused to see the applicant because of their hostility towards him , which made it impossible to organise meetings between ORG and the applicant .

In his appeal submissions the applicant complained , in particular , that a psychological examination of ORG had never been performed . The finding that it was not in ORG ’s interest to resume contact with his father had therefore not been based on the assessment of an expert . He also complained that neither he nor his counsel had been informed of the date of the hearing of CARDINAL DATE . Lastly , he enclosed an expert opinion of CARDINAL DATE , which read as follows :

“ Conclusions :

NORP In view of the incompleteness of the data [ failure to examine N. in view of ORG ’s refusal to give the experts access to ORG ] , the experts consider that at the present time only short meetings between [ the applicant ] and the child are possible ( not TIME CARDINAL times per month ) in public places on condition that the child has a positive or neutral attitude towards the father .

An assessment of whether contact between the child and his father could damage the child ’s health or psychological development is impossible given the absence of any data on the child ’s psychological stability , his attitude to his father at the present time , or the influence of relatives on the child ’s attitude to his father . ”

On DATE the applicant complained to ORG that the judge had included a false statement in the case file that he had been informed of the date of the hearing by mobile telephone . He enclosed a list of telephone calls provided by his mobile operator showing that he had not received any calls from the court . He also complained that a letter notifying his counsel of the date of the hearing of DATE had only been dispatched on DATE .

On DATE ORG replied that the fact of the belated notification of the applicant ’s counsel had been confirmed . Given that an appeal against the judgment of CARDINAL DATE was pending , that issue would be examined during the appeal proceedings .

On DATE ORG held an appeal hearing . The applicant and his counsel were both present . ORG upheld the judgment of CARDINAL DATE , finding that it had been lawful , sufficiently reasoned and justified . It noted that an expert opinion could not be obtained because ORG had avoided the experts . It was impossible to take into account the expert opinion of CARDINAL DATE because it had been made after the firstinstance judgment . ORG also found that a notification letter about the hearing of CARDINAL DATE had been sent to the applicant ’s address but had been returned to the court as undelivered . The failure to collect the notification letter from the post office had amounted to a waiver of the right to attend the hearing .

On DATE a judge of ORG refused to refer the applicant ’s cassation appeal to the ORG of ORG for examination , finding that the judgment of CARDINAL DATE had been lawful , sufficiently reasoned and justified . She noted , in particular , that the expert opinion of CARDINAL DATE could not lead the court to change its findings because the experts had not been able to examine N.

On DATE a judge of ORG of GPE also refused to refer the applicant ’s cassation appeal to ORG of ORG for examination , finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings .

Despite the court ’s decisions , the applicant resumed contact with ORG over time , meeting the boy at school , and having telephone and ORG conversations with him .

On DATE the applicant brought new proceedings against ORG , seeking to have her guardianship of ORG terminated and for ORG to be returned to him . ORG brought a counterclaim to have the applicant ’s parental responsibility restricted and to prevent the applicant ’s contact with the child .

On DATE ORG dismissed the applicant ’s application , having regard to the evidence below .

ORG noted that ORG lived with his maternal grandmother and guardian PERSON and that his housing conditions were adequate . During an inspection of the child ’s living conditions , he had explained that he was comfortable living with PERSON , and that they had a trusting and warm relationship . He also explained that he wished to continue living with his grandmother , but maintain contact with his father by meeting him from time - to - time and communicating with him by telephone .

NORP The applicant ’s housing conditions were also adequate .

ORG noted the applicant ’s submission to the effect that during his absences for work the child would live with his paternal grandparents . It further noted that the conditions at the paternal PERSON house were also suitable and that they were ready to look after PERSON in the applicant ’s absence .

ORG questioned PERSON , who explained that he lived with his maternal grandparents and that he liked living with them . The boy also submitted that he communicated with his father , who visited him at school and had regular telephone and ORG conversations with him . His father took an interest in his health and his school results . PERSON expressed a wish to remain living with his grandmother because he had got used to it .

ORG further found that it was clear from school reports that ORG was showing good results at school , that his mental capacity was above average and that he was interested in studying . PERSON was being brought up by his grandmother PERSON , who was actively engaged in ORG school life . The applicant regularly visited ORG at school . After such meetings ORG only talked about computers and computer games , was less interested in studying , and became more sensitive and reserved .

Having therefore taken into consideration ORG ’s age , the fact that he had been living with ORG from DATE , was attached to her , loved her and had expressed a wish to continue living with her , and that the applicant ’s working schedule required long absences , ORG held that the child ’s interests required that he continue to live with his grandmother , which would be more favourable to his development .

ORG dismissed PERSON ’s counterclaims . It held that there were no grounds to restrict the applicant ’s parental responsibility or to ban his communicating with ORG The applicant had positive references from work , the compulsory medical measures he had been undergoing had been lifted and he was no longer under psychiatric supervision . The applicant also cared about his son ’s life and health , sought communication with him , maintained contact with him over the telephone and Internet , visited him at school , and made regular child maintenance payments . There had furthermore been no evidence that the applicant had any harmful influence on the child . The ORG emphasised that domestic law provided that a child had a right to communicate with his parents and that a guardian had no right to prevent such communication , except if it was contrary to the child ’s interests .

On DATE ORG upheld the above judgment on appeal .

On DATE the childcare authority carried out a monitoring visit at the child ’s place of residence . It was established that ORG did not prevent ORG ’s communicating with the applicant . ORG submitted that he saw the applicant during breaks between classes at school and communicated with him over the telephone and by ORG .


NORP The list of applicants is set out in the appended tables .

On the dates indicated in the appended tables the applicants obtained monetary court awards against ORG of PERSON ( MUP PERSON avtotransportnoye predpriyatiye – муниципальное предприятие муниципального образования GPE « Пассажирское автотранспортное предприятие ORG ) .

Some of the judgments in the ORG favour have been partly enforced during the insolvency proceedings in respect of the company ( see paragraphs CARDINAL below ) , while others remained unenforced to date .

The company was incorporated as a municipal unitary enterprise . It was set up by the municipality of PERSON . The company provided transport services in the town . It had “ the right of economic control ” ( право хозяйственного ведения ) over the assets allocated to it .

As submitted by the applicants , the prices for the transport services in the town of PERSON were regulated by ORG region .

On DATE insolvency proceedings started in respect of the company .

On DATE the company was declared insolvent and subsequently liquidated .


Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström

NORP The applicant , Mr PERSON , is a citizen of GPE and GPE and was born in DATE . It appears that he currently lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .