Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions)

András Sajó;Boštjan Zalar;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

On DATE the applicant acquired a share in ORG , a limited liability company based in GPE . His name was entered in the court register of legal entities ( hereinafter “ the court register ” ) and he became CARDINAL of CARDINAL equal registered members of the company , each holding an PERCENT share . The share capital of ORG stood at CARDINAL NORP tolars ( SIT ) ( PERSON euros ( ORG ) ) .

CARDINAL of the founding members withdrew from company ORG DATE . On DATE the applicant , in addition to being a member , was also employed by company ORG as head of its IT department . In addition , he provided assistance to the finance director .

On DATE CARDINAL key members and managers of company ORG died in a car accident and CARDINAL others were seriously injured . As a result , the company ’s business operations could not be carried out and the company sustained a large financial loss . Moreover , its management was seriously undermined and during the course of DATE all members except the applicant and another person withdrew from the company ’s management board . Following those events , the applicant first assumed the role of acting director of company ORG on DATE , and then the role of managing director on DATE . In that capacity he acted as the company ’s representative .

Meanwhile , on DATE , ORG of GPE ( Slovenske železnice ) had applied for an enforcement order against ORG based on an authentic document for unpaid transport services . ORG challenged the enforcement order and the parties were directed to settle the issue in contentious proceedings . ORG lodged a civil action , claiming the payment of CARDINAL sums totalling approximately SIT CARDINAL ( EUR CARDINAL ) .

NORP In DATE , ORG was converted into a limited liability company in accordance with LAW , which required companies falling under its jurisdiction to increase their share capital and to align their operations with the provisions of LAW ( see paragraph CARDINAL below ) . However , at the time of the conversion the company was no longer liquid or solvent .

On DATE the applicant stepped down as managing director of ORG following a decision of the general meeting of the company . The members failed to appoint a new managing director and henceforth the company existed without any management . The applicant ’s resignation from the post of managing director was not entered in the court register of legal entities ( hereinafter “ the court register ” ) .

On DATE the members of company ORG decided at its general meeting to apply for bankruptcy on account of the company ’s insolvency . ORG filed a bankruptcy petition with the competent court , but it was rejected as the company had failed to make the required advance payment to cover costs and expenses of the bankruptcy proceedings in the amount of SIT CARDINAL ( EUR CARDINAL ) . The members established that they could not incur the costs of bankruptcy and thus decided to wait for the courts to liquidate the company proprio motu , in accordance with the then applicable legislation , namely , the Compulsory Composition , Bankruptcy and LAW as amended , which entered into force on DATE . The amendment to the LAW authorised the courts to initiate bankruptcy proceedings of their own motion in certain specified circumstances ( see paragraph CARDINAL below ) .

On DATE the applicant stopped working for company L.E. Moreover , by DATE , another CARDINAL members of the company had died .

In the civil proceedings initiated by ORG against ORG the applicant was summoned to appear at a hearing to be held on DATE . As he was unable to attend the hearing , he made written submissions explaining that the company had not been solvent for DATE . On DATE ORG rendered a judgment ordering ORG to pay ORG the CARDINAL sums claimed .

Meanwhile , on DATE LAW was again amended , inter alia , to repeal the provisions on bankruptcy proprio motu . Moreover , on DATE ORG ( hereinafter “ the PERSON ” ) entered into force . It introduced a measure decided proprio motu whereby insolvent and/or inactive companies were struck off from the court register without winding up . Thus those companies could be dissolved without the prior procedure of disposing of their assets and repaying DATE to the extent possible – their creditors . However , in order to ensure that creditors of struck - off companies were protected , the PERSON provided that the members of those companies would assume joint and several liability for the former ORG debts .

On the basis of a notification from ORG that company ORG had not performed any transactions through its bank account in a period of DATE , on DATE ORG , acting in its capacity as the registry court , initiated proceedings to strike off the company from the court register .

On DATE , the decision to initiate strike - off proceedings was entered in the court register and an unsuccessful attempt was made to serve it on the company at its registered office . The document was sent to the address of the company , but since no representative of the company was there to receive it , a delivery slip was left in its mailbox , informing the company that the relevant correspondence could be collected at the post office . On DATE the document was returned to the registry court with the information that the addressee had failed to collect it . The registry court then served it by posting it on its notice board , as provided for by ORG . According to the applicant , company ORG had ceased to operate at the address of its registered office already in DATE and had not been present at those or any other LOC since . Moreover , there were no mailboxes at the office building at issue and all mail would have been left at the reception desk .

No objection was made to the decision to initiate strike - off proceedings either by company ORG or by its members . Consequently , on CARDINAL DATE the registry court issued a decision to strike off company ORG from the court register . The decision was published in ORG on DATE . The registry court also attempted to serve the decision on company ORG by sending it to the company ’s address , but like the previous document it was returned on DATE with the information that the addressee had failed to collect it . Again , the decision was posted on the registry court ’s notice board . Neither company ORG nor any of its members , who were entitled to lodge an appeal against the strike - off decision , appealed against the decision , so on DATE it became final .

On DATE company ORG was struck off from the court register and thus ceased to exist . Notification of the strike - off was published in ORG on DATE .

The applicant stated that he had become aware that ORG had been struck off from the court register on DATE , when an enforcement order was served on him for seizure of his property .

Meanwhile , based on the judgment ordering ORG to pay ORG approximately EUR CARDINAL,CARDINAL ( see paragraph CARDINAL above ) , on DATE the creditor lodged an application for enforcement with ORG against CARDINAL members of the company .

On DATE ORG granted the creditor an enforcement order to seize the applicant ’s personal possessions , which was later expanded to include his salary .

On DATE the applicant lodged an objection to the enforcement order , arguing that the local court had failed to establish his actual role in company ORG and to acknowledge his status of an “ inactive member ” ( see paragraphs DATE below ) , which would have exonerated him from liability for the company ’s debts . He maintained that the creditor ’s claim against the company had arisen before he had joined it , and that he had only become involved in the management of the company because the CARDINAL members who had previously performed that role had died . Moreover , the applicant was of the view that the onus rested on the creditor to establish that he had been an active member of the company , and that the matter should be examined in contentious civil proceedings . Lastly , he applied for a stay of enforcement .

On DATE the applicant ’s objection was dismissed . ORG found that the onus of proving his inactive status was on the applicant , and that he had failed to prove that he had not been an active member of ORG established that with his PERCENT share in the company , the applicant had enjoyed the rights of a minority member , and furthermore , he had been employed by the company and actively involved in its management since DATE . In his capacity as acting director and later managing director , he had been authorised to act on behalf of the company . Moreover , even after the applicant had resigned as managing director , he had still been active in the operations of the company and had also signed the bankruptcy petition . ORG further dismissed the applicant ’s request for a stay of enforcement , as he had failed to demonstrate that the enforcement would have caused him irreparable or serious damage . The applicant appealed against that decision , reiterating the arguments he had raised in the objection to the enforcement order .

On DATE the applicant attended a hearing with regard to an objection to the enforcement order raised by PERSON , another member of company ORG

On DATE ORG dismissed the applicant ’s appeal on essentially the same grounds as the first - instance court , and the enforcement order thus became final . The court noted , inter alia , that ORG had found the measure of “ lifting the corporate veil ” under the applicable Financial Operations of Companies Act to be in accordance with the principle of separation of a company ’s assets from those of its member , and thus consistent with LAW . ORG considered it irrelevant whether the applicant had become a member of ORG before or after the creditor ’s claim had arisen . Having joined the company , he had assumed its assets as well as its liabilities , and moreover , he had had the rights of a minority member . ORG placed considerable emphasis on the fact that the applicant had been actively involved in the management of the company . It explained that the reasons for lifting the corporate veil under the PERSON were not identical to those provided for in LAW . The PERSON established a non - rebuttable presumption that members of inactive companies intended to have the companies dissolved and , to that end , made it clear that they assumed joint and several liability for their outstanding debts ( see paragraph CARDINAL below ) .

On DATE the applicant lodged CARDINAL constitutional complaints before ORG , CARDINAL concerning the strike - off proceedings and the other the enforcement proceedings .

On DATE ORG rejected the applicant ’s complaint regarding the strike - off proceedings . The decision was served on the applicant on DATE . The court observed that the applicant lacked legal interest in challenging the decision of the registry court , as company ORG had already been struck off from the court register . Therefore , even a positive outcome of the constitutional complaint could not improve the applicant ’s legal position . On DATE ORG rejected also the complaint regarding the enforcement proceedings , finding that the applicant ’s human rights had manifestly not been violated . Reiterating that only active members of struck - off companies could be held liable for the ORG debts , ORG found that the lower courts had correctly established that the applicant ’s active involvement in the management of company ORG could not exempt him from personal liability for the latter ’s debts .

In DATE the enforcement order against the applicant ’s salary was executed and part of each of the applicant ’s DATE salaries was seized to pay off his debt . On DATE the applicant reached an out - of - court settlement with ORG and paid the agreed amount , and the application for enforcement against him was withdrawn . The proceedings against the applicant were terminated on DATE . In total , the applicant paid ORG CARDINAL,CARDINAL to his creditor .


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

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

The Moldovan Government ( “ the Government ” ) were represented by their Agent , Mr PERSON .

In DATE and DATE the applicant and a group of CARDINAL other persons were accused of being members of a criminal gang and of having committed numerous offences , including QUANTITY murders and CARDINAL attempted murders . The applicant was arrested and placed in detention on DATE .

On DATE ORG acquitted the applicant of all the charges for lack of evidence and ordered his release from custody .

On DATE , in the applicant ’s absence , a panel of CARDINAL judges of ORG examined an appeal lodged by ORG against the judgment of ORG , quashed the judgment , convicted the applicant and sentenced him to life imprisonment .

The applicant complained to the ORG and , on DATE , the ORG found , inter alia , that his right to a fair trial had been breached on the grounds that ORG had convicted him without making a direct assessment of evidence given by the applicant in person ( see PERSON v. GPE , nos . CARDINAL and QUANTITY , DATE ) .

As a result of the ORG ’s judgment , the applicant lodged an extraordinary appeal against the judgment of ORG seeking its quashing and a fresh examination of the appeal against the judgment of ORG of DATE . ORG did not object .

On DATE ORG examined the extraordinary appeal lodged by the applicant , quashed both the judgment of DATE and that of ORG of DATE and ordered a fresh examination of the case . ORG also ordered the applicant ’s remand in custody for an undefined period of time without there being a request by ORG .

After the communication of the case to the ORG , the ORG became aware of the fact that on DATE ORG had examined an extraordinary appeal lodged by the applicant against its judgment of DATE and had upheld it . ORG considered unlawful the quashing in that judgment of the decision of ORG of DATE and the decision to remand the applicant in custody , and reversed those parts of the judgment .


Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

NORP The applicant company , GPE , is a limited liability company based in GPE . It is represented before ORG by Mrs C. Lanschützer , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

On an unspecified date the applicant company applied , at that time under its previous name , ORG , for a broadcasting licence in GPE . However , the licence was awarded to another company , ORG . The applicant company appealed .

On DATE ORG ( PERSON – “ the ORG ” ) dismissed the applicant company ’s appeal .

Afterwards , on CARDINAL DATE , the applicant company lodged a complaint with ORG and requested that suspensive effect be granted to their complaint . It was signed by CARDINAL of its business managers .

On DATE the applicant company sent a letter to ORG - transmitting a copy of its complaint against the ORG ’s decision of CARDINAL DATE - proposing to withdraw the complaint if it received payment on its business bank account of MONEY ( ORG ) , an amount which should partially cover the losses sustained by the applicant company because they had not been awarded the licence . The applicant company pointed out that its complaint to ORG had not been signed by a lawyer and would be returned in order for that procedural defect to be remedied . Thus , before the complaint was resubmitted by a lawyer ORG would have the opportunity to obtain the applicant company ’s withdrawal from the proceedings by paying the above - mentioned amount .

On DATE ORG lawyer informed ORG of the applicant company ’s letter and enclosed a copy of that letter .

By a letter of CARDINAL DATE ORG ordered the applicant company to remedy the procedural defects of its complaint . It noted that the complaint did not bear the signature of a lawyer , which was contrary to the statutory requirement , and observed that the applicant company , as could be seen from its letter to ORG , had been perfectly aware of that requirement . ORG ordered the applicant company to remedy that defect by resubmitting its complaint through a lawyer within DATE and , within the same time - limit , to clarify its letter of CARDINAL DATE , a copy of which was attached .

On DATE the applicant company replied to ORG order of CARDINAL DATE . It submitted that its letter of CARDINAL DATE to ORG had merely been intended to find a viable solution for all parties . In its view , ORG application for a broadcasting licence had had fundamental defects which would have led to the licence being revoked and would have caused an untenable financial risk for ORG . The amount requested had been justified because , for the applicant company , the time spent waiting for the decision of ORG would have resulted in a standstill and loss of opportunities .

On DATE the applicant company ’s lawyer and member of ORG , Mr PERSON , submitted the same , unsigned , complaint again . Attached to the complaint there was a letter signed by the latter , saying that he represented the applicant company .

On DATE ORG rejected the applicant company ’s complaint as inadmissible for formal reasons . It noted that PERSON PERSON .- P. had resubmitted the original complaint with a covering letter bearing his signature , along with the statement that he represented the applicant company , but the complaint itself did not bear his official stamp and signature . ORG concluded that the applicant company had failed to comply with its order .

Article CARDINAL of LAW ( Bundes - Verfassungsgesetz ) reads as follows :

“ ( CARDINAL ) ORG decides on rulings by administrative authorities including independent administrative panels , in so far as the complainant alleges an infringement by the ruling of a constitutionally guaranteed right or the infringement of personal rights caused by an illegal ordinance , an illegal pronouncement on the republication of a law ( state treaty ) , an unconstitutional law , or an unlawful treaty . The complaint can only be lodged after all other legal remedies have been exhausted .

( CARDINAL ) ORG can decide to decline to deal with a complaint before an oral hearing if it has no reasonable prospect of success or if the decision can not be expected to clarify a constitutional problem . It must not decline to deal with a complaint if , under LAW , the case at hand falls outside the jurisdiction of ORG .

( CARDINAL ) If ORG finds that a right within the meaning of sub - section CARDINAL above has not been infringed by the challenged ruling , and if , under LAW , the case at hand does not , fall outside the jurisdiction of ORG , the ORG shall , on the request of the applicant , transfer the complaint to ORG for a decision as to whether the applicant has suffered an infringement of any other right as a result of the ruling of the administrative authority . This also applies by analogy in the case of decisions in accordance with sub - section CARDINAL above . ”

In the report of ORG ) of ORG ( PERSON ) on the draft amendment of LAW DATE it is stated that if ORG decides to decline to deal with a complaint it is dispensed from examining the admissibility of that complaint ( ORG CARDINAL BlgNR ORG . ORG , p. CARDINAL ) . In such a case ORG is therefore relieved from examining whether all formal criteria , such as time - limits and representation by a lawyer have been complied with . This is also ORG case - law ( see , for example , B CARDINAL/CARDINAL DATE ; B DATE , CARDINAL DATE ; B CARDINAL/CARDINAL , DATE ) .

Section CARDINAL of LAW , in so far as relevant , reads as follows :

“ ( CARDINAL ) ... complaints must be submitted by an authorised lawyer ... ”

Section CARDINAL of LAW reads as follows :

“ Submissions which do not comply with the requirements of section CARDINAL and section CARDINAL , or other requirements of form laid down in the present Act , shall be returned by the rapporteur to the complainant for the procedural defects to be remedied within a certain period of time , if it can be expected that the defects are likely to be remedied . ”

“ ( CARDINAL ) ... the judgments of ORG are given after a public oral hearing to which the complainant , the opposing party and any third parties are summoned .

( CARDINAL ) The judgments are pronounced and delivered on behalf of the LOC .

( CARDINAL ) Upon an application by the rapporteur , the following decision may be taken in a non - public session , without any further proceedings and without conducting a hearing :

NORP The refusal to deal with a complaint , under LAW ) and LAW .

The rejection of a submission :

a ) for a clear lack of jurisdiction of ORG ;

b ) for failure to meet a statutory deadline ;

c ) for a non - remedied deficiency in the formal requirements ;

d ) in the case of final and enforceable matters , and

e ) in the absence of a right to sue or be sued .

NORP The discontinuation of proceedings when an application is withdrawn or deprived of its cause of action ( section CARDINAL - GPE ) . ”

According to the case - law of ORG , the requirement of section PERSON ) of LAW that a complaint must be submitted by an authorised lawyer means that a lawyer representing a complainant must submit his or her own complaint signed by him or her ( see , inter alia , ORG of ORG ( PERSON ) CARDINAL/CARDINAL ) .


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

NORP The applicant , PERSON Ioviţă , is a NORP national who was born in DATE and lives in LOC PERSON . She was represented before the Court by PERSON , a lawyer practising in Drobeta - Turnu PERSON .

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

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

On DATE the applicant moved to GPE , where she lawfully took up residence with her husband . She was lawfully employed there and received a fixed DATE income .

On DATE the applicant and her husband travelled to GPE for DATE . As they attempted to cross the NORP border she was stopped and questioned by the FAC border police .

On DATE the border police produced a report attesting that they had withheld the applicant ’s passport ( dovadă de reținere ) as documentary evidence because CARDINAL of its pages had been replaced .

On DATE the border police opened a criminal investigation against her for forgery of official documents and use of forged documents .

On DATE ORG ( ORG a Persoanei PERSON ) informed the applicant that , in accordance with LAW no . CARDINAL/CARDINAL on NORP passports , her right to use her passport had been suspended until DATE following her return from GPE , based on a readmission agreement between the CARDINAL countries . They also informed her that she had DATE to challenge the decision before ORG attached to ORG ( “ the Passport Service ” ) .

On DATE the applicant lodged a challenge to the decision with ORG .

On DATE the ORG - Turnu PERSON prosecutor ’s office informed the applicant that the criminal investigation opened against her had been discontinued and that the case had been referred back to the FAC border police in order for them to identify the potential perpetrators . The prosecutor ’s office held that it could not be established that the CARDINAL pages of the passport had been replaced by the applicant . Moreover , not all the elements of an offence were present as there was no evidence that she knew that her passport was forged .

On DATE ORG dismissed the applicant ’s challenge of DATE and informed her that following the opening of a criminal investigation against her it had been decided that the measure taken by ORG in accordance with LAW no . CARDINAL/CARDINAL would be maintained . ORG also informed her that her situation would be re - examined after the criminal investigation had ended .

NORP On DATE ORG allowed the applicant ’s challenge of DATE and informed her that the measure taken against her had been cancelled .

On an unspecified date ORG issued a new passport in the applicant ’s name at her request .

She returned to GPE on DATE .

On DATE the applicant brought civil proceedings against ORG , seeking CARDINAL NORP Lei ( RON – MONEY ( ORG ) ) in pecuniary and non - pecuniary damages for the restriction on her freedom of movement . She relied on LAW ( “ the ORG ” ) . She argued , inter alia , that the measure taken against her had been unlawful and had prevented her from returning to GPE for DATE . As a result , she had been forced to stay in GPE alone , separated from her husband who had had to return to GPE in order not to lose his job . Furthermore , she had lost her salary rights for DATE in question . In addition , she and her husband had been pressured by the border police to admit that she had replaced the CARDINAL pages of her passport , as she had been held ( ținută ) for TIME at the customs office without being allowed to contact her parents in order for them to instruct a legal representative on her behalf .

On DATE the ORG dismissed the applicant ’s action . It held that she had not been convicted by a final judgment . Furthermore , the measure to place her in the custody of the border police had been necessary given that the border guards had noticed that CARDINAL pages of her passport had been replaced and she herself had admitted as much . In addition , the applicant ’s right to use her passport had been suspended following her return from GPE on the basis of the readmission agreement between the CARDINAL countries and LAW § CARDINALe of Government Ordinance no . MONEY . Consequently , the conditions of LAW of the ORG had not been met in her case .

The applicant appealed against the judgment .

On DATE the applicant asked ORG to order ORG to disclose the act on which the decision to take the measure against her had been based .

On DATE the court dismissed the request on the grounds that the evidence in question was not relevant to the case .

It also dismissed the applicant ’s appeal against the judgment of DATE . It held that the suspension of her right to use her passport had been necessary pending the outcome of the criminal investigation opened against her , as it was uncontested that CARDINAL pages of her passport had been replaced . The applicant had to bear the natural consequences of the finding of such an irregularity , namely the criminal investigation . The passport was one of a person ’s most important identity documents and was used mainly abroad . Each passport holder was therefore responsible for preserving the document ’s integrity . The measure taken against the applicant had thus been necessary because a person could not use a document which had been guaranteed by the ORG and which no longer met the lawful conditions it had had from the moment it had been issued . The measure taken against the applicant seemed even more justified , given that she had initially admitted altering the passport and had not proven that she had been coerced to admit that .

NORP The applicant lodged an appeal on points of law ( recurs ) against the judgment . She argued , inter alia , that the lower courts’ decision to dismiss her request for additional evidence had been unjust . The evidence in question was relevant to the case since the reasons ORG had relied on in order to take the measure against her had no legal basis as , as could be seen from the evidence , she had been lawfully residing and working in GPE . Furthermore , there was no distinction between her situation and that of arrest or detention , given that she had been prevented from leaving the country even though she had been living and working in GPE with her husband . Consequently , the domestic courts had to find a way to compensate her for the damage sustained following the arbitrary measure taken against her by the authorities .

On DATE ORG and ORG allowed the applicant’Article CARDINAL of the ORG had been met . In spite of the available contradictory evidence , the lower courts had not clarified what had been the legal basis of the measure taken against the applicant . In particular , they had not established whether the measure had been taken in the context of the criminal proceedings opened against her – it was well known that in such cases a passport was material evidence DATE or had been taken based on either LAW CARDINALe of Government Ordinance no . PERCENT on Government Ordinance no . ORG on GPE ’s borders by the head of the customs clearance point the applicant had crossed following the interruption of her travels . Moreover , the lower courts had not established the lawful review procedure for the measure imposed on the applicant or whether she had challenged the measure lawfully . Furthermore , they had not established the grounds for cancelling the measure taken against her or for issuing her with a new passport . If the measure had been taken against the applicant within the context of the criminal proceedings , the lower courts had to establish whether the conditions set out in LAW ORG had been met and whether the ORG could be held liable .

On DATE the ORG allowed the applicant ’s action and awarded her ORG CARDINAL ( approximately EUR CARDINAL ) in pecuniary damages and RON CARDINAL ( approximately EUR CARDINAL ) in nonpecuniary damages . It noted that following the reopening of the case and in line with ORG and ORG ’s instructions the parties had been allowed to adduce written and testimonial evidence to the file . In this connection , the court noted that the judicial and nonjudicial authorities had been asked to submit the documents concerning the criminal investigation opened against the applicant and those justifying the measure taken against her . It also noted that it had heard CARDINAL witness testimonies .

NORP The court established , based on the available evidence , that on DATE the NORP border authorities had placed the applicant in custody because CARDINAL of the pages of her passport had been replaced and because she had been pressured by the representatives of the border police to admit that she had replaced them . The applicant had subsequently withdrawn her statement because she had not actually known how the pages had come to be replaced . A criminal investigation had been opened against her . Consequently , at the request of the FAC border police , ORG had decided to suspend the applicant ’s right to use her passport and restricted her freedom of movement for DATE on the basis of Government Ordinance no . CARDINAL . The criminal investigation against the applicant had subsequently been discontinued and therefore ORG attached to ORG had cancelled the measure taken against her and she had been able to return to GPE .

The court also held that , given the criminal investigation opened against her and the measure taken , the applicant had sustained pecuniary and nonpecuniary damage since she had been unable to return to work in GPE and had been forced to remain in GPE alone and separated from her husband . The applicant had clearly proven the pecuniary damage sustained by her and , under the joint provisions of LAW of LAW , LAW ORG and LAW of LAW , the ORG was liable for the non - pecuniary damage caused by legal errors .

Lastly , the court held that a person ’s freedom of movement was guaranteed both by LAW . Consequently , it could be restricted only in circumstances provided for in the domestic legislation and if the restrictive measure was necessary and proportionate to the aim pursued .

The ORG appealed against the judgment .

On DATE ORG allowed the ORG ’s appeal , quashed the judgment of DATE and dismissed the applicant ’s action . It held that in DATE ORG had established that LAW ORG was constitutional only in so far as the situations in which the ORG ’s financial liability could be engaged for damage caused by legal errors during criminal proceedings was not limited to the circumstances given in that provision . Subsequently , in DATE ORG held that LAW of the ORG was constitutional only in so far as a person ’s right to be compensated if he or she had been acquitted or the criminal investigation opened against him or her had been discontinued after a preventive measure had been taken against him or her were not restricted to the circumstances given in LAW .

The court also held that under LAW ORG , the preventive measures that could justify proceedings based on LAW were placement in police custody , detention pending trial and the obligation not to leave town , all measures ordered during criminal proceedings . The right provided by LAW ORG fell within the area of rights guaranteed by LAW .

Furthermore , the court held that according to the available evidence , none of the aforementioned preventive measures which could justify proceedings under LAW had been taken against the applicant during the criminal investigation initiated against her . No measures restricting her liberty for the purposes of Articles CARDINAL and CARDINAL of the ORG taken together with LAW had been taken against her .

The only measure that had been taken had been one restricting her freedom of movement , as guaranteed by LAW No . CARDINAL to the Convention . It had been taken based on LAW no . CARDINAL/CARDINAL and she had failed to challenge the measure as permitted by LAW same ordinance .

The court noted that the applicant had admitted during the preliminary stages of the criminal investigation that she had replaced the CARDINAL pages of her passport . After she had been informed of the criminal charges against her and of her right to a legal representative , she had intentionally or very negligently obstructed or had attempted to obstruct the investigation . Consequently , the provisions of LAW of the ORG were applicable in the instant case . However , the provisions of LAW could not be applied to her case , given that there had been a reasonable suspicion that she had committed an offence .

The court lastly held that the applicant ’s right to freedom of movement was not absolute . The right could be restricted in certain circumstances provided for by law – those provided for by Government Ordinance no . CARDINAL were proportionate to the aim pursued , necessary , accessible and foreseeable .

Consequently , the ORG ’s potential civil liability in tort could not be engaged as the provisions of LAW No . CARDINAL to the Convention had not been breached .

The applicant appealed on points of law against the judgment .

By a final judgment of CARDINAL DATE ORG and Justice ( ORG ) dismissed the applicant ’s appeal on points of law . It held that her freedom of movement had not been restricted as a result of the preventive measure taken during the criminal investigation opened against her by the judicial authorities , but as a result of the measure to suspend her right to use her passport . That measure had been ordered by the police because the passport used by her to cross the border had presented elements of forgery . That fact was undisputed .

The court also held that the measure taken against the applicant was provided for by law . Furthermore , it had been justified given that the document had presented elements of forgery and she had been responsible for the integrity of the document . In addition , it had been necessary in order to ensure public safety within the meaning of LAW No . CARDINAL to the LAW .

The court also held that under LAW no . CARDINAL/CARDINAL , the applicant could have challenged the measure before the domestic non - judicial authorities and then before the administrative court . She had successfully challenged the measure before ORG and a new passport had been issued for her .

The appellate court ’s decision had thus been lawful given that the applicant had not proven that the domestic authorities had taken the measure against her unjustly and unlawfully , and it had not been proven that a legal error for the purposes of LAW ORG had been committed during the criminal investigation .

The applicant submitted an article from an unidentified newspaper which had reported on a criminal investigation initiated by ORG against a border guard for allegedly receiving a bribe from the applicant in order to help her with her passport problems . The article referred to a statement by the applicant , in which she claimed that the border guard who had checked her passport had suggested she admit to the unlawful act because the problem was not serious and could be solved . The applicant also claimed that once she had written the confession , the border guard had told her that she should pay some money for the situation to remain uncomplicated . The applicant also stated that even though she and her husband had paid ORG CARDINAL , the border guard had been displeased with the amount and had started searching their luggage and unlawfully confiscating champagne , sweets and coffee . She stated that she had realised afterwards that her problems would not be solved and that she had become the subject of a criminal investigation .

The article also quoted a local senior police officer who had stated that the applicant ’s allegation of bribe taking was being investigated by the relevant authorities and that the investigation into the incident had been referred to ORG .

The relevant provisions of Government Ordinance no . CARDINAL on NORP passports , in force at the material time , read as follows :

“ Passports ... are issued by ORG of ORG or its subordinate local offices and are kept ( se păstrează ) by their holders . ”

“ ( CARDINAL ) A NORP citizen may be temporarily refused a passport or , if the passport has already been issued , it may be withdrawn or the right to use suspended where :

( a ) there is a reasonable suspicion that he has committed an offence punishable by DATE imprisonment and that he intends to use the passport to abscond . The measure shall be taken at the request of the police for a maximum DATE ;

( b ) is charged with a criminal offence or is indicted during criminal proceedings and the magistrate has ordered that a measure not to leave town or the country is to be taken against him , in order to ensure the proper administration of justice , regardless of the stage of the proceedings ;

( e ) has committed acts abroad which could affect national security , the preservation of public order , the protection of another person ’s health , morals or fundamental rights and freedoms , which have been established by a court judgment or are the subject of a criminal investigation . The acts committed abroad shall be proven by judicial acts recognised by NORP law . In such cases , the measure shall be taken by the ... local ORG for a period DATE , to be determined in proportion to the seriousness of the act and its consequences . The same measure may also be taken against a person ... who has been returned on the basis of a readmission agreement between GPE and other GPE ... ;

( CARDINAL ) In the circumstances provided for by paragraph CARDINAL ( a ) , ( b ) ... the measure shall only be taken ... on the basis of a written request by criminal investigation bodies , the courts ... ”

“ ( CARDINAL ) ... the decision to suspend the right to use a passport shall be notified in writing to the person concerned within DATE of the date the measure was taken , including the reasons for it .

( CARDINAL ) ... the person concerned may challenge the measure before the body hierarchically superior to the CARDINAL that has taken it , within DATE of the date of notification .

( CARDINAL ) The challenge shall be examined within DATE of the date of registration and , if the person is dissatisfied with the outcome , [ he or she ] may bring proceedings before the competent administrative court . ”

“ The following acts amount to contraventions of the passport scheme :

( d ) the loss , damage or destruction of a passport or other travel document , owing to the fault of the holder ;

( f ) making unlawful changes or additions ( adăugări ) to a passport or other travel document , if the act has not been committed in conditions that , under the law , amount to an offence . ”

“ The contraventions mentioned in LAW ... are punishable by a fine ... ”

Article CARDINAL of the former NORP Code of Criminal Procedure , in force at the material time , reads as follows :

“ ( CARDINAL ) Anyone who has been convicted by a final decision is entitled to compensation from the ORG for any loss or damage sustained where after a retrial it is held in a judgment against which no appeal lies that he did not commit the offence in question or that the offence did not take place .

( CARDINAL ) Anyone against whom a preventive measure has been taken , and in whose favour a decision to discontinue proceedings or of acquittal has been given for the reasons listed in the preceding paragraph , also enjoys a right to compensation for the damage sustained .

( CARDINAL ) The person who intentionally or out of serious negligence has obstructed or has attempted to obstruct the investigation during the criminal investigation or trial , does not enjoy a right to compensation for the damage sustained .

Article CARDINAL of LAW provides , inter alia , that the ORG is liable for damage caused as a result of legal errors . Its liability may also be established in accordance with the law .

Articles DATE and CARDINAL of Law no . CARDINAL on administrative litigation provide , inter alia , that when examining applications the administrative courts must also decide any claims for pecuniary and non - pecuniary damage lodged by the applicants . If the person asks for the administrative act to be cancelled without claiming damages at the same time , the statutory limitation period for seeking damages runs from the moment he or she became aware or ought to have become aware of the seriousness of the damage suffered .

The relevant provisions of the former NORP Civil Code concerning civil liability for tort , in particular LAW and CARDINAL , are described in the case of PERSON v. GPE ( no . CARDINAL , § DATE ) .

The Government submitted CARDINAL final judgments ( no . CARDINAL of DATE , no . DATE of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of CARDINAL DATE , no . CARDINAL of DATE , no . DATE of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of CARDINAL DATE and no . CARDINAL of DATE ) delivered by ORG and ORG concerning proceedings brought by various applicants against ORG , seeking to have cancelled decisions to suspend or maintain the suspension of their right to use their passports taken on the basis of LAW no . MONEY . Referring to the provisions of the relevant domestic legislation and the particular circumstances of each case , ORG and ORG allowed the ORG actions and either cancelled the decisions in full or in part . In its assessment of the applications the court held , inter alia , that the prosecutor ’s office could no longer ask for the applicants’ right to be suspended pending the outcome of criminal proceedings once the case files had been referred to the courts . Furthermore , LAW CARDINAL/CARDINAL did not impose a duty on the authorities to take the measure in question , but rather provided them with the option to do so .

The Government also submitted CARDINAL final judgments ( no . DATE of DATE and no . CARDINAL of DATE ) delivered by ORG and ORG concerning proceedings brought by CARDINAL applicants against ORG seeking to have cancelled the suspension of their right to use their passports taken on the basis of LAW no . MONEY as well as compensation for the and non - pecuniary damage sustained following the decision . In judgment no . CARDINAL of DATE , the court allowed the applicant ’s action in part , cancelled the suspension and awarded him pecuniary damage . It held , inter alia , that the decision taken against the applicant had been unlawful and had deprived the applicant of his income . However , the applicant had not proven that he had suffered nonpecuniary damage and a simple cancellation of the administrative decision could not lead to the conclusion that he had suffered psychological trauma . In judgment no . CARDINAL of DATE , the court dismissed the applicant ’s action . It held , inter alia , that as the decision had been taken within the lawful exercise of the domestic authorities’ right of assessment and within the limits of their powers of decision , it could not establish that the applicant ’s rights had been violated . As the decisions had been lawful , no link could be established between the allegedly unlawful decision and the damage sustained .

The Government also submitted a final judgment ( no . CARDINAL of DATE ) delivered by ORG and ORG concerning proceedings brought by an applicant against ORG seeking compensation for pecuniary and nonpecuniary damage sustained following a decision to suspend his right to use his passport which had been previously cancelled by the domestic courts . The applicant relied on LAW no . CARDINAL/CARDINAL and on Articles CARDINAL and CARDINAL of GPE . The court dismissed the applicant ’s action . It held , inter alia , that there had been no direct link between the damage sustained by the applicant and the measure taken by the domestic authorities as the damage , in particular the loss of income , had arisen following a decision of the foreign authorities to dismiss his application for asylum .


CASE OF BAŞTOVOI v. THE REPUBLIC OF MOLDOVA

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

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

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

On DATE the applicant was arrested and charged with embezzlement and organising the attempted murder of CARDINAL businessmen . Since DATE he has been detained in Prison no . CARDINAL .

According to the applicant , he has been detained in a cell measuring QUANTITY with CARDINAL other inmates , which left very little space for each detainee . Due to overcrowding , detainees had to share beds . He was not provided with bedding or a pillow . There was no sink or running water in the cell . The food was of poor quality and inedible . The squat toilet was not separated from the rest of the cell and gave off a foul odour . There was also a lack of daylight and poor ventilation .

The applicant asserted that he had been detained with inmates diagnosed with tuberculosis , HIV / AIDS and other infectious diseases . As a result of being held in inhuman conditions of detention , he had been ill with mycosis , gastritis and a respiratory infection . He was not provided with any medical assistance and was forbidden from receiving herbal medicine from his wife .

The applicant complained of inhuman conditions of detention to the PERSON prosecutor ’s office and ORG . On DATE ORG replied that after examining his allegations , it had not found any violation of domestic law .

The Government submitted that the applicant ’s cell ( no . CARDINAL ) measured QUANTITY and was designed to accommodate CARDINAL people . All detainees had their own beds . The cell was equipped with a sink and running water . The applicant was provided with bedding , hygiene products tailored to his needs and hot food CARDINAL times a day , in accordance with ORG no . CARDINAL concerning the minimum daily food requirements for detainees . The Government contended that the cell in question had not accommodated people with infectious diseases . They added that the applicant had been provided with medical assistance and submitted evidence of various medical check - ups .


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

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

On an unspecified date the applicant , a police superintendent , lodged a criminal complaint for defamation against a newspaper and a journalist , as well as PERSON the elected chief of the administrative district of PERSON ( Capitano di Castello ) ( who had given an interview to the newspaper ) , in connection with press articles which were published on DATE and DATE . The articles claimed that , inter alia , a policeman ( a title presumably traceable to the applicant ) was fraudulently obtaining benefits from the ORG , including the use of a ORG apartment , despite it being needed by other persons .

Subsequent to the articles , the administrative body in question removed the apartment from the applicant ’s possession . According to the applicant , the articles questioned his morality – they cast doubts over whether rent and service charges had been paid , hypothesised as to whether other benefits were also being enjoyed by the applicant , and posed questions regarding the possibility of the applicant ’s involvement in other minor fraud infractions , even though , according to the applicant , such infractions were common in lease contracts . The last article also focused on the applicant ’s profession and , in his view , was written in a manner intended to bring him into disrepute . Moreover , it was not based on the truth in so far as no substantiation was given to the allegations that the applicant was not wanted for the post of commander of the police brigade ; or that that there had been friction between him and the citizens of GPE ; or that some persons had in fact complained about the applicant , as had been claimed by PERSON in the interview .

Prior to this last article and following the first CARDINAL articles the applicant had written to various media outlets with a statement in his defence clarifying his situation . He also clarified the situation regarding the apartment that was the subject of the articles , which was in his possession by title of lease . The entirety of the applicant ’s statement was published , together with comments by the journalist who authored the press articles , in the third above - mentioned article .

Criminal proceedings ORG were instituted against the abovementioned persons and testimony was heard from the applicant , the journalist and other witnesses .

On DATE the investigating judge ( Commissario della PERSON , hereinafter “ the PERSON ” ) requested that criminal proceedings ORG be archived . The PERSON recalled the importance of freedom of expression , noting that this was not however unlimited and could be curtailed in view of the dignity , honour and reputation of other persons . Having regard to the principles derived from the right to freedom of expression , the articles complained of were not offensive , and thus could not be subject to criminal liability .

The PERSON considered that neither the title ( “ A PERSON abita l’ultimo giapponese ” – “ The last NORP living in GPE ) nor the content of the first article contained any criminally relevant statement . The applicant had confirmed that , as mentioned in the beginning of the article , he had lived in an apartment provided by the ORG situated in the cultural centre ( centro sociale ) of GPE . The PERSON authorities ( through PERSON ) had also confirmed that an application had been lodged to regain possession of the property ( as mentioned in the central part of the article ) . As to the questions posed in the last part of the article ( namely , concerning the rent of the apartment and the fact that a family was living in a cultural centre built for other purposes , and so forth ) , the subject matter was CARDINAL of public interest and the formulation of the questions appeared to be correct and did not exceed the limits of the exercise of journalistic functions . The same was valid for the second article ( called “ PERSON dello Stato , per i cittadini bisogna vederci chiaro ” – “ Clarification needed for the citizens on ORG - owned apartments ” ) which reconstructed the historical context in DATE , explaining the existence of an anti - drug unit and an anti - drug squad , and reiterated the content of the previous article . Nor was the third article , which contained an interview with PERSON , as well as the applicant ’s letter and a comment by the journalist and a third person , subject to any criminal liability . The article had not related to “ eviction ” as mentioned by the applicant , but correctly to the authorities’ decision to have the apartment reassigned to someone else , a procedure which did not require the intervention of the applicant . Similarly the applicant ’s confused challenge to a reference to an anti - drug dog could not be upheld since the comment – to the effect that it had made sense for the applicant to benefit from the use of the apartment at the time when a canine squad existed , but no longer now that the squad had been disbanded – reflected reality and was a reserved statement . Lastly , the adjective sbroccato ( a person who lost it ) , which was DATE a term of general use ( sdoganato ) could not be considered defamatory , as the term was not offensive or intimidating . Any other considerations put forward by the applicant appeared to refer to disagreements within the police department , which even if they were true do not appear to be relevant to the present case .

The PERSON considered that as the information was true and in the general interest , the articles fell within the legitimate exercise of the right to information . Moreover , the applicant had been given a right of reply , and a faithful reproduction of his statement had been published in its entirety .

The PERSON considered that a balance had to be reached between both constitutionally guaranteed rights , specifically , on the one hand that of the honour , reputation and dignity of the individual , and on the other that of freedom of expression and of the press to impart information and for persons to receive information . “ Justification ” was the crux of the right to report news , thus abstract “ defamatory ” statements made within the requisite limits were licit and part and parcel of freedom of expression as long as they did not exceed the requisite limits and thus amount to abuse . The balance between the right to respect for the dignity , honour and privacy of the individual and that of freedom of expression was not subject to precise definition , even more so given that that freedom of expression may take various forms – including rapidly developing trends or changes in DATE which remain in any event subjective . Indeed , according to domestic case - law , it was a priori impossible to dictate the general limits between what was licit and what was not .

In the light of such principles , the PERSON considered that in the present case the articles had been justified in order to impart information on a matter of public interest , specifically in reference to a policeman , the use of public property and the involvement of the authorities . They had not been intended to offend anyone ’s honour . The content of the articles did not overstep the limits of free speech , and the sole fact that the articles may have inconvenienced the applicant did not suffice to make them amount to a criminal act of defamation ( the sole matter subject to the court ’s jurisdiction ) .

NORP The Attorney General agreed and on DATE the PERSON ordered that criminal proceedings ORG be archived on the basis of the above - mentioned reasoning , noting that there were no elements to issue a bill of indictment .

The applicant challenged that decision ( opposizione ) on DATE .

By a decision of CARDINAL DATE notified on CARDINAL DATE the judge of criminal appeals ordered that criminal proceedings ORG be archived , and rejected the applicant ’s objection as manifestly ill - founded . The judge noted that the applicant had reiterated his arguments without referring to the reasons given by the first - instance court , and ignoring the fact that the allegations made by the accused had been substantiated by documentary evidence . Further , the judge stated that the CARDINAL impugned articles had not offended the applicant ’s reputation . They questioned the use of ORG apartments without attributing to the applicant any particular untoward behaviour . They contained whole truths and , although the articles were written as a form of criticism , the applicant had had a right – which he made use of DATE to defend himself in the press . Lastly , PERSON had provided a copy of his correspondence with the authorities which related to the use of the apartment in question and in respect of which he had given an interview which had then been published . Thus , his actions had not been a gratuitous accusation but a supply of correct information concerning the applicant ’s activity and functions .


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants , Mr Ivica Brkić , PERSON and PERSON , live in GPE . The first and the second applicants were born in DATE and the third applicant in DATE . They were represented by PERSON , a lawyer practising in GPE .

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

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

On an unspecified date the applicants brought a civil action in ORG for damages against the ORG caused by the killing of their mother , PERSON , born in DATE . They alleged that their mother had been killed by firearms in front of her house in GPE on DATE when that village had been occupied by NORP paramilitary forces . She had been killed solely because of her NORP ethnicity . Therefore , her death had been motivated by ethnic hatred and had had no connection to any military or belligerent activity , which was also evident from the fact that she had not had arms on her person nor could she have put up any resistance . On DATE other persons of NORP ethnicity had been killed in the same village . Such an act had amounted to an act of terrorism under LAW ( see below ) .

On DATE the claim was dismissed . ORG held that CARDINAL of the territory of the ORG had been occupied and that the civilians killed on that territory had been mostly of NORP ethnicity , as had the applicants’ mother . It further held that the applicants’ mother had been killed by one PERSON , a member of the NORP paramilitary forces during the armed conflict between these forces and ORG . Therefore , the killing of the applicants’ mother was war damage within the meaning of LAW , for which GPE was not liable . As to that conclusion , the relevant part of the judgment reads as follows :

“ It is not disputed between the parties that on DATE , DATE of the killing of ORG , the village of GPE was part of the occupied [ territory of the State ] ... The decision on investigation in respect of the accused PERSON ... shows that ORG was CARDINAL of the victims of the same perpetrator , killed on DATE in GPE during an exchange of fire between NORP paramilitary forces and ORG on the CARDINAL side and the armed forces of GPE on the other side ...

This court holds that section CARDINAL(CARDINAL ) of LAW is applicable in the case at issue ... The killing of ORG , a civilian of NORP ethnicity , in GPE , which was at the time a part of the occupied [ territory of the State ] , by a member of a paramilitary group DATE so - called territorial defence force of the so - called GPE whose paramilitary force operated within the so - called ORG DATE is direct life - threatening damage under section CARDINAL(CARDINAL ) of LAW , and from the claimant ’s position it concerns non - pecuniary damage on account of the death of a parent . Therefore , the damage in the specific case was indisputably caused by the enemy , illegal groups or allies of such groups [ , and that ] damage was caused in the period [ provided in ] section CARDINAL of that Act , as ORG was killed on DATE . ”

After concluding that the killing of the ORG mother was war damage , ORG also held that it had been a terrorist act for which ORG was not liable as it had had no control over the occupied territory of the ORG . The relevant part of the judgment reads as follows :

“ The crucial aspect which is missing and is a condition for the liability of GPE as a ORG for the damage in this case is its sovereignty . The defendant had no sovereignty over GPE , which was a part of the broader , temporarily occupied territory of GPE at that time , during the Homeland War . It did not have control over the territory and inhabitants of that territory , the basic elements of State sovereignty . Thus , as said above , the act of damage ... amounts to an act of terror , that is to say an act of violence committed for political motives with the aim of causing fear , terror and the feeling of personal insecurity in citizens . However , the terrorist act of the killing of the applicants’ mother by a member of the occupying enemy NORP paramilitary forces was done in occupied NORP territory , that is to say in the territory where GPE had no sovereignty before the act of damage occurred , on DATE when it occurred , or for DATE afterwards . Given the time ( during a state of war ) , the territory ( occupied NORP territory ) , and all the circumstances in which the damage occurred , this court concludes that [ the act of damage ] in the case at issue amounts to a terrorist act which in these circumstances could not have been prevented by the ORG or its bodies . The defendant did not contribute to such acts of terror or violence in any manner , but instead it attempted to prevent them by all legitimate means , including the defensive Homeland War , CARDINAL of the aims of which was the liberation of the occupied NORP territory in which , in the end , it succeeded . ”

The applicants then lodged an appeal in which they argued that ORG had held contradictory views , stating that the killing of their mother was war damage for which the ORG was not liable and at the same time that it had been a terrorist act for which the ORG was not liable because it had had no control over the territory where the damage had occurred . The applicants asserted that the killing of their mother had been a terrorist act and that the ORG ’s liability could not be excluded only because it had occurred in occupied territory . They argued that the legislation governing the ORG ’s liability for terrorist acts provided that this liability was based on the principles of solidarity , equal distribution of the public burden and fair and prompt compensation , and that ORG liability existed irrespective of whether a perpetrator had been identified , criminally prosecuted or found guilty . In the applicants’ view , this implied that the ORG was liable for damage not because it had responsibility for it but as an act of social solidarity with victims of terrorist acts .

The first - instance judgment was upheld by ORG on DATE , which endorsed the reasoning of ORG .

The applicants then lodged an appeal on points of law in which they reiterated their arguments from the appeal and pointed out that the appeal court had not addressed these arguments . On DATE ORG upheld the lower courts’ judgments . The relevant part of ORG judgment reads :

“ ... even though the damage was caused by violence with terror as CARDINAL of its essential elements , it does not amount to a terrorist act within the meaning of section CARDINAL of LAW , but was caused by belligerent activity of the enemy military or paramilitary forces with the aim of provoking fear in and displacement of the civilian population and has the characteristics of war damage for which GPE is not liable ”

NORP The applicants’ subsequent constitutional complaint was dismissed on DATE . The decision was served on the applicants on DATE .

The relevant part of LAW of DATE ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , ORG no . DATE “ the DATE LAW ” ) , which entered into force on DATE , provides as follows :

“ ( CARDINAL ) This Act regulates liability for damage caused by acts of terrorism or other acts of violence committed with the aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ...

( CARDINAL ) A terrorist act within the meaning of this LAW is especially an act of violence committed for political reasons [ motives ] with a view to stirring up fear , terror or feelings of personal insecurity in citizens . ”

“ GPE shall be liable for the damage referred to in CARDINAL of this LAW on [ the basis of ] the principles of social solidarity , equal distribution of the public burden and fair and prompt compensation . ”

“ The obligation to compensate damage under LAW exists irrespective of whether the perpetrator has been identified , criminally prosecuted or found guilty . ”

“ The victim shall have the right to compensation [ in the form of damages ] for damage resulting from death , bodily injury or impairment of health . ”

LAW and Police ) ( Zakon o odgovornosti PERSON štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata , ORG no . CARDINAL of DATE ) outlines the conditions under which the ORG is liable to pay compensation for damage caused by members of the army and the police during the Homeland War . The relevant provisions read as follows :

“ The present Act governs the liability of GPE for damage caused by members of ORG and the police force in military or police service or in connection with such service during the Homeland War in the period DATE and DATE . ”

“ GPE is liable under general rules governing liability for damage only in respect of damage defined in section CARDINAL hereof which does not have the character of war - related damage . ”

“ ( CARDINAL ) War - related damage within the meaning of this LAW is , in particular :

– damage caused at the time when and in territory where military actions were carried out with any means of war ... ( bombardment , shelling , machine - gun fire , explosions , mining , movement of troops and the like ) ;

– damage resulting in direct and concrete military gains if , given the time and place where it occurred , it directly served military operations , and in particular :

( a ) damage which was a direct consequence of any protective or planning measure which the competent military authorities carried out with the aim of removing or preventing an enemy attack ;

( b ) damage which was a direct consequence of protective or planning measures which the competent military authorities carried out in anticipation of an enemy action ( work in fields , confiscation of movable property , occupation of real estate and the like ) ;

( c ) damage which was a direct consequence of measures taken with the aim of preventing the consequences of the damage described in subsection CARDINAL of this section from spreading or of alleviating such consequences ;

– damage which , having regard to its results and the specific time and place where it occurred , was directly caused by the state of war and is directly connected with military operations ( direct consequences of war events in connection with unrest , turmoil , panic , evacuations and similar events [ occurring ] immediately after the military operations have been carried out ) .

( CARDINAL ) It is to be presumed that the damage caused by members of ORG and the police force in military or police service or in connection with such service during the Homeland War in the period DATE and DATE is war - related damage , if it occurred at the time when and in territory where military combat actions took place , but the injured party may prove the opposite . ”

NORP The relevant part of that LAW o utvrđivanju ratne štete , ORG nos . CARDINAL and DATE ) reads :

“ [ This LAW provides for ] the setting up and the activities of the ORG , municipal and special commissions for the listing and assessment of war damage caused [ in the territory ] of GPE to its natural and legal persons , and in connection with enemy activities and military operations carried out against [ GPE ] in the period from DATE until the termination [ of the said activities ] . ”

“ War damage within the meaning of this LAW , is pecuniary and non - pecuniary damage , direct and indirect damage , and in particular :

damage caused to bodily integrity , life and health of persons , freedom or dignity ;

War damage , within the meaning of this LAW , is damage caused by enemy , illegal forces , legal bodies of GPE , as well as allies of the said forces and bodies , when it was indirectly or directly caused in the period mentioned in CARDINAL of this LAW . ”

ORG has held that GPE was not liable for war - related damage caused by enemy forces on the occupied territories ( for example in its judgments nos . CARDINAL of DATE ; Rev-CARDINAL/CARDINAL - CARDINAL of DATE ; Rev-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ; and Rev-CARDINAL/CARDINAL - CARDINAL of DATE ) . In the latter ORG endorsed findings of the lower courts that the killing of persons at the occupied territories amounted to war - related damage and added , in so far as relevant , the following :

“ Even though the act giving rise to the plaintiffs’ claim for damages presents certain similarities with a terrorist act since [ both ] imply [ an act of ] violence , the act of damage [ in the present case ] differs significantly from terrorist acts in its features since it contains additional elements and amounts to war - related damage for which the defendant is not liable . This is because the damage did not occur in the territory under the de facto sovereignty of GPE but in the then occupied territory , where there was no possibility for lawful action by the bodies of GPE ; this circumstance excludes the otherwise objective liability of the defendant . Furthermore , the act of damage in the present case was not carried out with the sole aim of seriously disturbing public order ( this being the aim characteristic of an act of terror ) but also involved the use of force , killing and expulsion of the civilian population on that territory with the aim of destroying the internal security and stability of GPE and preventing its lawful bodies from functioning .


Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Aleš Pejchal;Alvina Gyulumyan;András Sajó;Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Gilbert Guillaume;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mark Villiger;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant , PERSON , is an NORP national who was born in DATE and lives in LOC , GPE . He is the father of the late Mr PERSON , who died on DATE at DATE QUANTITY .

On DATE , at TIME , an unknown car approached a vehicle checkpoint ( ORG ) named “ B-CARDINAL ” on the main supply route “ LOC north of the town of PERSON , in the province of PERSON , south - eastern GPE . The car slowed down and turned . From inside the car shots were fired at the personnel guarding the ORG , all of them members of ORG ( ORG ) . The guards returned fire . No one was hit ; the car drove off and disappeared into TIME .

Called by the checkpoint commander , ORG Hussam Saad , a patrol of CARDINAL GPE soldiers led by PERSON arrived on the scene at TIME

TIME a Mercedes car approached the ORG at speed . It hit CARDINAL of QUANTITY which had been set out in the middle of the road to form the checkpoint , but continued to advance . Shots were fired at the car : PERSON fired CARDINAL rounds from a ORG assault rifle ; shots may also have been fired by CARDINAL or more ORG personnel armed with PERSON ( see paragraphs CARDINAL and CARDINAL - CARDINAL below ) . At this point the driver stopped the car .

The applicant ’s son , Mr PERSON , was in the front passenger seat of the car . He had been hit in several places , including the chest . GPE soldiers removed him from the car and attempted to administer first aid . Despite this , Mr PERSON died . He was declared dead TIME after the incident .

The body was subjected to X - ray examination . The radiographs show objects identified as metallic inside the chest and elsewhere .

An autopsy was performed by an NORP physician , who drew up a brief report in LANGUAGE . Metal objects identifiable as bullet fragments were found in the body .

It was not determined by whom the bullet or bullets had been fired , nor from what weapon .

An official record by ORG ( wachtmeester CARDINAL klasse ) Schellingerhout of ORG ( ORG marechaussee ) , As - Samawah detachment , shows that a telephone call was received at TIME from the batallion operations room , reporting the shooting incident . A car had crashed into the ORG . Shots had been fired by GPE and NORP armed forces and the car ’s passenger had been wounded . He had been taken to hospital . ORG was asked to investigate .

A CARDINAL - person ORG duty group ( piketgroep ) , accompanied by an interpreter , had left at TIME and arrived on the scene at around CARDINAL.CARDINAL.a.m . ORG Sergeants First Class Broekman and PERSON had begun securing evidence at TIME Also at CARDINAL a.m. , ORG staff in GPE and the public prosecutor of ORG ( rechtbank ) of GPE were informed of the incident .

The body was seized by ORG Warrant Officer ( adjudant - onderofficier ) PERSON at TIME and transported to the mobile hospital at FAC . At TIME , after permission had been given in writing by a local court , the body was transported to ORG in As - Samawah . The post - mortem examination was carried out in the absence of any police witness by an NORP physician .

The Mercedes car was seized at around TIME by Warrant Officer PERSON and later towed to Camp Smitty .

At around CARDINAL.CARDINAL a.m. Sergeant First Class Schellingerhout seized Sergeant Hussam PERSON ’s PERSON rifle ; at TIME he also seized PERSON ORG CCARDINALACARDINAL rifle . Both weapons were later labelled and placed at the disposal of the GPE public prosecutor .

The following statements were submitted to the investigating and judicial authorities in the domestic proceedings .

On DATE , at TIME , ORG Warrant Officer PERSON took a statement from the driver of the Mercedes car , Mr PERSON , with the aid of an interpreter . Mr PERSON admitted to having drunk CARDINAL cans of beer , but no more , on TIME , and did not consider himself to have been intoxicated . He stated that he had not noticed any checkpoint until it was too late to avoid hitting QUANTITY . It had been dark at the time , and there had been no lighting . To his complete surprise , his car had been fired at as he was driving through the checkpoint . His friend Mr PERSON had been hit ; Mr GPE PERSON had heard him say that he was dying . He wished to submit a complaint because the checkpoint had not been clearly marked .

On DATE , at TIME , ORG Sergeant First Class Weerdenburg took a statement from ORG Hussam PERSON The latter stated that he had reported shooting from a car at around TIME ; PERSON had arrived at TIME Sergeant Hussam PERSON had gone to look for spent cartridges with PERSON , another GPE soldier and the interpreter . He had suddenly heard a bang and seen a car approaching from the direction of Ar ORG . The car had continued to move forward , despite being ordered to stop . He had then heard shooting from the left side of the road . He had not , however , fired any rounds himself .

Sergeant First Class Weerdenburg next questioned the other NORP soldiers , but they provided no pertinent information .

On DATE , at TIME , ORG Sergeant Klinkenberg took a statement from Mr Walied PERSON , an interpreter working with the ORG . The interpreter had been accompanying PERSON patrol between CARDINAL checkpoints . After arriving at ORG GPE and being told about the first shooting incident by ORG Hussam PERSON , he had joined PERSON and others in the search for spent cartridges . He had suddenly heard the sound of barrels falling over , turned around and seen a car approaching . He had shouted “ stop , stop , stop ” but the car had driven on . Across the road from where he was standing , a GPE soldier had fired at the car . After the car stopped , he had assisted its occupants by providing interpretation . The passenger ’s left arm had been covered in blood and the driver had smelled of alcohol .

On DATE , at TIME , ORG Sergeant First Class Van Laar and PERSON took a statement from ORG ( sergeant ) PERSON . Arriving at ORG BCARDINAL.CARDINAL at TIME , he had been given information by the ORG sergeant . Together with his lieutenant , the ORG sergeant and the interpreter , he had gone up the road to look for spent cartridges . At a distance of QUANTITY from the ORG hut , he had turned around , startled by a sound . He had seen a car drive into the ORG at speed ; when the car had passed the ORG , he had heard shooting from the ORG . The CARDINAL of them had dived for cover . When the car had reached their level , shots had been fired from across the road , where the lieutenant was positioned . He had shouted “ Stop firing ” , but that had not been heard . When the firing stopped , the car had also stopped . The passenger had been bleeding from the lower body and the left shoulder . PERSON and Private PERSON had removed him from the car , laid him on the ground and bandaged his wounds . He and PERSON had attempted to resuscitate the passenger until told by the doctor that there was no longer any point .

On DATE , at TIME , ORG Sergeants First Class Broekman and PERSON heard PERSON under caution . PERSON stated that he was responsible for monitoring CARDINAL vehicle checkpoints , CARDINAL of which was ORG GPE on the GPE road north of FAC . After the first shooting incident had been reported , he had arrived at ORG BCARDINAL.CARDINAL at TIME ; he had been intending to reconnoitre the area on foot , together with PERSON and the ORG sergeant . At TIME he had been startled by a noise . Looking behind him , he had seen CARDINAL blazing car headlights approaching . Shots had then been fired from the direction of the car ; on hearing them , he had dived for cover on the verge of the road . He had been convinced that shots were being fired from inside the car . When the car had reached his level , he had cocked his weapon ; when it had just passed , he had started to shoot at its rear . He had fired CARDINAL cartridges in aimed fire . He had been responding to the danger arising from his having been fired at first . He had fired the entire contents of a magazine , CARDINAL rounds ; this had taken TIME . The passenger being wounded , he and PERSON had attempted to resuscitate him until help arrived . By that time there had been no pulse . Shortly afterwards , the company commander had arrived ; PERSON had briefed him .

On DATE , at TIME , ORG Warrant Officer PERSON and ORG took a statement from Private PERSON . At CARDINAL a.m. on DATE he had arrived with PERSON , among others , at ORG , where the ORG sergeant reported to PERSON that there had been a shooting incident at ORG . The patrol had therefore gone to that checkpoint , arriving at TIME PERSON , PERSON , the ORG sergeant and the interpreter had gone up the road towards GPE to look for spent cartridges . A dark - coloured motorcar had approached at high speed and driven past him through the checkpoint , hitting QUANTITY in the road . Through his image intensifier he had seen PERSON , to the left of the road , going for cover ; he had then seen muzzle flashes from several weapons on the left side of the road and heard shots from that direction . The firing was in single shots . At a certain moment he had seen the car stop . While the shots were being fired , he had heard PERSON shout “ Stop firing ” . He had gone up to the vehicle and cut the passenger ’s clothes loose . While PERSON administered first aid , he had searched the car for weapons . He had found an icebox containing an almost empty bottle of alcoholic drink . He had then joined PERSON and PERSON in their attempts to resuscitate the passenger until the latter was declared dead . He was critical of PERSON for firing while his own troops were on the opposite side of the road and for firing so many rounds , and also of the ORG for firing in the general direction of their own personnel .

On DATE , at TIME , ORG Sergeant Major ( opperwachtmeester ) Wolfs and Sergeant First Class Van Laar took a statement from ORG ( wachtmeester ) PERSON . On DATE at TIME he had been at ORG and the other members of his patrol unit , which had been led by PERSON . There had been shooting at ORG and they had gone there . Upon arrival , he had noticed no ICDC personnel manning the checkpoint , but had seen a group of people to the left of the road opposite the hut . After ORG had parked his vehicle , PERSON , PERSON , the interpreter ORG and the ORG sergeant had walked off north to look for spent cartridges . At a certain point , he had seen a car approaching at high speed from Ar - Rumaythah ; when the car reached the checkpoint , it had hit some of the barrels or rocks placed there . He had heard automatic gunfire from where the ORG members were , which had then stopped . There had been further firing QUANTITY distant from him , but he could not tell who was firing up ahead . He did think that there had been firing from a plurality of weapons . He had seen the vehicle stop QUANTITY away . He had made a situation report . He had seen PERSON and PERSON trying to resuscitate the victim .

On DATE , at around TIME , ORG Sergeant First Class Broekman and Warrant Officer PERSON took a second statement from PERSON The latter stated that the very last time he had seen the ORG sergeant the latter had been at the checkpoint , fiddling ( klungelen ) with his AK-CARDINAL rifle . PERSON had told the sergeant not to point the rifle at him . On the subject of the firing incident , he stated that as far as he remembered he had probably lain on a flat part of the road ; he had not fired from a standing position . He had performed mouth - to - mouth resuscitation on the wounded passenger of the car and remembered him tasting of alcohol . The ORG deputy company commander had given him a list of names of the ORG personnel who had fired their weapons and the corresponding numbers of cartridges , and had asked for replacement ammunition .

On DATE ORG Warrant Officer PERSON and PERSON examined the car seized by Warrant Officer PERSON DATE . It was a black Mercedes Benz CARDINAL E AMG . It had black number plates with markings in LANGUAGE script ; these visibly covered white number plates bearing black letters in LANGUAGE script and numerals . The car had damage consistent with hitting foreign objects at speed . The rear window was shattered . Holes were found in the rear of the car , in the body on the right and left sides , and in the seats . Metal tips were found in various places ; one , identified as a bullet fragment , had clearly passed through the passenger seat . The conclusion was that the car had been fired on from both the left and the right ; from the left , with a weapon firing ammunition smaller than QUANTITY calibre and , from the right , with a weapon firing ammunition larger than QUANTITY calibre . The precise firing angles relative to the car could not , however , be determined .

On DATE Royal Military Constabulary Warrant Officer PERSON and PERSON took receipt of a CD - ROM containing X - rays of PERSON body . These showed fragments of metal in the left chest cavity , the left hip and the left lower arm . The Xrays had been made by Warrant Officer Dalinga , X - ray technician at GPE , As - Samawah , PERSON province .

The file contains photocopies of the above - mentioned X - rays and of photographs . They are accompanied by descriptions , contained in an official report by Warrant Officer PERSON . The photographs include pictures of a road and a checkpoint area , some taken by daylight , some apparently taken at TIME . Several of the photographs show cartridges lying on the ground , including some described as CARDINALxCARDINAL PERSON ( as fired by the PERSON AK-CARDINAL rifle ) , both spent and live , and a quantity of spent cartridges stated to be CARDINAL.CARDINALxCARDINAL PERSON ( as fired by the ORG CCARDINALACARDINAL rifle ) in a pile close together . Others show a male body with wounds to an arm , the upper left CARDINAL of the back and the right buttock . Further pictures show a dark - coloured ORG motorcar ; details are included of holes in the bodywork and upholstery that could be bullet holes .

On DATE ICDC Lieutenant Colonel PERSON , the commanding officer of CARDINAL ORG , sent a report from his batallion headquarters to the headquarters of the NORP police . It reads as follows ( rough handwritten translation , from LANGUAGE into LANGUAGE , submitted by the applicant ) :

“ The details of the accident which is happened at date ( DATE ) and information coming from the first batallion ( PERSON ) and the details are :

At TIME ( CARDINAL [ sic ] after the midnight ) from DATE ) [ sic ] a car type ( ORG ) coming by high speed directed from ( PERSON ) to ( Al Nassiriya ) and when the car is reached to the location of the checkpoint does not stop and making a crash with the obstacles present in checkpoint and he was carelessness and the soldiers shouting on him and calling to stop and he is continued and does not stop and after that NORP soldiers see that there is no way and shoot on him and then injured person ( [ PERSON ] ) then he is died and he was sitting near the driver .

With our greetings

[ signed ] Lieutenant Colonel PERSON

A copy to / PJCC ”

An official report by ORG Warrant Officer PERSON , dated DATE , states that on DATE a document was received in LANGUAGE , which , translated orally by an interpreter , was identified as a report by the GPE police . The report stated that QUANTITY metal fragments had been examined in GPE at the request of the AlMuthanna police with a view to identifying the ammunition from which they had come and the weapon from which they had been fired ; however , the provenance of the metal fragments could not be determined , as they were too few in number . A copy of a document in LANGUAGE was attached to Warrant Officer PERSON ’s report . It is not stated in whose custody the metal fragments had been left or where they were being stored .

On DATE Mr PERSON , the driver of the Mercedes car , lodged a complaint with the NORP police against the troops who had fired at his car . It appears from the statement , as taken down in writing , that Mr PERSON was under the misapprehension that the foreign troops involved had been NORP rather than GPE . Mr PERSON also put on record that he had been told by the interpreter to say that all of the shots had been fired by the ORG , whereas in fact he had not seen any shots fired by ORG personnel .

After the ORG ’s relinquishment of jurisdiction to ORG , the Government provided an official record of the following statements taken from the ORG members . The following is a sworn translation subsequently submitted by the applicant :

“ Name : A PERSON

Weapon number : ORG CARDINAL

Ammunition : CARDINAL X CARDINAL cartridges

‘ During the second incident I was lying in a position with all - round security . I saw that a car was travelling at high speed towards the checkpoint from the direction of PERSON . I saw that it rammed into CARDINAL drums by the checkpoint and simply continued going . My commander [ ORG Hussam PERSON ] walked forwards together with the interpreter and CARDINAL NORP soldiers and then I heard a large number of shots fired . I myself did not fire any shots . I can not tell you any more than this.’

Name PERSON

Weapon number UE DATE

Ammunition CARDINAL Cartridge clips and CARDINAL cartridges in total

‘ CARDINAL can not tell you anything about the first incident because I was asleep at the time in the watch hut .

During the second incident I was standing by the vehicle checkpoint and I saw a ORG driving towards the checkpoint . I saw that the ORG rammed into CARDINAL oil drums and drove on in the direction of PERSON . I heard the NORP soldiers shouting stop , stop , and then I heard shots being fired . I saw nothing else because I was standing behind a hut on the opposite side to the watch hut.’


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

Erik Møse;Julia Laffranque;Khanlar Hajiyev

On DATE ORG of GPE found the applicant guilty of corruption and an abuse of official powers and gave him a custodial sentence . The applicant appealed alleging , in particular , that he was innocent , that the prosecution had been unlawful and the trial court had applied the criminal law erroneously .

On DATE ORG of GPE quashed the judgment on appeal and remitted it for a new hearing .

On DATE ORG of GPE found the applicant guilty as charged before and sentenced him to DATE imprisonment . The applicant lodged an appeal . He complained , among other matters , about erroneous interpretation of law , improper assessment of evidence by the courts , and an excessive severity of the penalty

On DATE ORG of GPE upheld the judgment on appeal reducing the sentence to CARDINAL years’ imprisonment .

DATE and DATE the applicant was held in remand prison GPE in LOC . The facility was overcrowded . Thus , cell CARDINAL measuring QUANTITY m was equipped with CARDINAL sleeping places and accommodated up to QUANTITY inmates .

The applicant submitted the following evidence in support of the above allegations : his complaints to the prison management and their reply and statements by CARDINAL cellmates .