Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Georges Ravarani

The applicant , a practising defence lawyer , represented ‒ initially before ORG and subsequently before the appellate courts ‒ a defendant , ORG , who had been charged with CARDINAL murders committed on DATE . The offence carried a DATE prison sentence . During the first - instance criminal proceedings , CARDINAL certified sworn - in experts were appointed . A psychologist , PERSON , and a psychiatrist , ORG , were asked to assess the accountability of the defendant and the probability that he had committed the criminal offences of which he had been accused . An expert in forensic medicine , PERSON , was asked to prepare a report and testify , among other things , about the time of death of the victims , which was an important element in the accusation against the applicant ’s client . In his written and oral submissions the applicant continuously protested his client ’s innocence , pointing to what in his view was unreliable expert evidence , and requesting the exclusion of all evidence obtained by alleged violations of his client ’s human rights . It would also appear that at some point in the proceedings the applicant asked to be given the results of a lie - detector test performed during the police investigation , but his request was refused .

At the final hearing held on DATE V.R. replied to questions put by the applicant and the public prosecutor . Subsequently , the applicant requested that a new expert psychiatrist be appointed and that he should be assisted by a psychologist specialising in psychodiagnosis . Under the rules of LAW , a new expert witness should not be appointed unless there are contradictions or deficiencies in the available expert opinion or if reasonable doubt arises with regard to its correctness – the applicant therefore pointed out what he considered to be such deficiencies with respect to GPE and PERSON In his oral submissions , the applicant argued that PERSON was known to be inclined towards psychodynamics which , in the applicant ’s opinion , meant that “ he was not familiar with top - level means of diagnosis , which were to be used in the process of psychosocial diagnosis ” . He also stated that the psychodynamic psychotherapy used by the expert was not a scientific method and did not produce reliable data . The applicant further maintained in his speech that the results of the test used on his client were wholly contradictory and as such invalid . He gave examples from the expert opinion , such as its finding that the accused had little sense of reality but , at the same time , good general knowledge , and that while he was mentally rigid he was of above - average intelligence . The applicant continued by saying :

“ That this was just senseless extensive talking without any meaning , full of contradictions , is supported by the fact that the expert did not link his mental constructs with any concrete mental disorder , not least with the personality disorder in which he had proclaimed himself to be the expert . ”

The applicant then went on to say that none of the tests could lead to a finding of the narcissist characteristics mentioned by expert PERSON and that , in any case , narcissism was not part of the valid method of diagnosis . He then stated :

“ The opinions of both the psychiatrist and psychologist indicate the sad truth that in their professional weakness , both experts resorted to methods that did not form part of their professional practice . The psychiatrist used psychological methods which he absolutely did not understand and applied them only mechanically ; the psychologist applied outdated psychological methods from the stone age of psychology and unscientific psychodynamic concepts and thereby failed to obtain any useful results , therefore he resorted to the field of medicine ... ”

The applicant concluded by saying that the proposed new expert opinions would have proven that his client could not have committed the crimes with which he had been charged .

The court rejected the applicant ’s proposal to appoint new experts and concluded the evidence - taking procedure .

On DATE the applicant ’s client , ORG , was convicted of CARDINAL counts of murder and sentenced to DATE imprisonment . On DATE the applicant lodged an appeal with ORG . He supplemented it with further written submissions and on DATE attended a session and a hearing before the court . The applicant argued , inter alia , that the date of the murder could not have been CARDINAL DATE as established by expert , PERSON ( see paragraph CARDINAL above ) , which meant that his client could have not committed it ; that the public prosecutor had not submitted the results of the lie - detector test which would have allegedly exculpated his client and the court had refused to obtain them from the NORP authorities ; and that his client had not been psychologically capable of committing the alleged crime . In his written and oral submissions before ORG , the applicant strongly criticised the work of the experts , public prosecutor and the court and used a number of expressions which ORG found amounted to contempt of court ( see paragraph CARDINAL below ) .

On DATE ORG issued a decision , fining the applicant CARDINAL NORP tolars ( SIT DATE approximately CARDINAL euros ( ORG ) ) for contempt of court for his statements given at the hearing of DATE regarding the expert witnesses , namely for making the following remarks , the translation of which has not been disputed by the parties : “ senseless talking ” ( neosmišljeno nakladanje ) , “ mental constructs ” ( umotvori ) , “ professional weakness ” ( strokovna šibkost ) of the experts and saying that “ the psychiatrist used psychological methods which he absolutely did not understand ” ( psihiater si je pomagal s psihološkimi metodami , PERSON razume ) and that “ the psychologist [ applied ] outdated psychological methods from the stone age of psychology and unscientific psychodynamic concepts ” ( psiholog z zastarelimi psihološkimi metodami iz kamene psihološke dobe ter neznanstvenim psihodinamskim konceptom ) ( see paragraphs CARDINAL to CARDINAL above ) . The court took the view that the applicant had expressed insulting value judgments with regard to the expert witnesses’ professional qualifications . Moreover , it considered that the professional competence of certified experts approved by ORG was not open to doubt . As regards the level of the fine imposed on the applicant , the court noted that it reflected the nature and seriousness of the offensive statements and the fact that he was a lawyer with many years’ experience of representation in court proceedings .

The applicant appealed on DATE . He argued that he had not intended to insult anyone , and had only wanted to draw attention to the unacceptable way by which the opinions that could result in a potential DATE prison sentence had been prepared . He maintained that the impugned allegations were substantiated by the criticism expressed in the appeal . He pointed out that he did not have the required knowledge to substantiate the criticism but had been warned about the serious errors committed by the CARDINAL experts by those from the “ psychiatric and psychological profession ” . According to the applicant , the courts had to reflect on their practice of punishing lawyers , which was used by some judges to “ cover up ” their own unprofessional and incompetent work . He alleged that the punishment of defence counsels often had a chilling effect and thereby interfered with freedom of expression .

On DATE ORG dismissed the applicant ’s appeal as unfounded , finding that his remarks “ constituted insulting value judgments which were damaging to the honour and reputation of both experts , since they expressed contempt and disrespect for the human dignity of other people and were as such unworthy of the profession practised by a lawyer ” . The court considered that it was obliged to protect its authority and the personal dignity of other participants in the criminal proceedings and pointed out that the applicant could have expressed his criticism in a number of legally acceptable ways . It also held that punishing a defence counsel did not constitute a serious interference with the constitutional right of freedom of expression , nor did it limit the constitutional right of defence . The court concluded that the lower court ’s decision was correct and did not restrict the rights of the defence “ as alleged by the appellant who obviously , lacking any self - criticism , still maintains that the allegations laid against the experts were justified ” .

On DATE the applicant lodged a constitutional appeal , in which he complained of a violation of LAW CARDINAL of the LAW , which guarantees freedom of expression . He argued that he had expressed the impugned opinions with the aim of providing the best possible defence to his client and that his punishment had not been necessary in a NORP society . Relying on the case of ORG v. GPE ( no . CARDINAL , ORG CARDINAL-II ) , he argued that the critical comments had been directed solely at the unprofessional and inadequate work of the experts and had not insulted the court in any way . His criticism of the CARDINAL experts “ was fully justified and based on scientific fact ” . Furthermore , alternative less severe measures were available , such as a private prosecution for slander .

On CARDINAL DATE ORG dismissed the applicant ’s constitutional complaint . The most relevant parts of its decision are as follows ( as translated in the LANGUAGE version provided on ORG website ) :

“ CARDINAL . ... Certainly it has to be taken into account that the freedom of expression of a lawyer in his capacity as defence counsel in criminal proceedings serves the purpose of the defendant ’s right to a defence ... The circumstance that a defence counsel in judicial proceedings exercises his right to freedom of expression because and only because he represents a client is of primary importance for the review of the admissibility of the interference with the right of a defence counsel determined in the first paragraph of LAW [ freedom of expression ] , but this can not entail that because of this circumstance ORG would not review whether the ORG decisions on punishing the defence counsel violated his right to freedom of expression .

In accordance with the first paragraph of LAW , freedom of ... expression [ is ] guaranteed . The ORG protects the freedom of expression in the first paragraph of LAW ...

The duty of the courts in general and the court deciding on the merits of the case is to direct proceedings in such a manner so as to ensure the proper conduct of the parties and above all the fairness of the trial DATE rather than to examine in a subsequent trial the appropriateness of the party ’s statements in the courtroom However , this does not entail that the defence counsel ’s freedom of expression in criminal proceedings should be unlimited . Due to the fact that a defence counsel takes part in judicial proceedings and that his right to freedom of expression is intended for the protection of the rights of others , it is limited to a greater extent than the right to freedom of expression of any other individual in a public space may be limited . A defence counsel is namely limited by the fact that he participates in proceedings that are [ formalised ] and as such conducted in a rational manner , as well as by his professional ethics . A defence counsel may express strong and sharp criticism , however his argumentation in protecting the interests of his clients must remain within the range of reasonable argumentation , and there is no room for insults charged with emotion . It is understandable that in cases of defending a defendant charged with a grave criminal offence for which a severe penalty is prescribed , the tolerance threshold which may be allowed by the courts may be higher than in other cases , however , the defence counsel may not cross the outer boundaries of this tolerance . If he does cross them , it is proper that the court protects other values , i.e. confidence in the judiciary and the good reputation and authority of the judiciary , which ensures that the public respects the courts and has confidence that the courts are able to perform the role they have in a state governed by the rule of law . Protecting the authority of the judiciary includes the notion that the courts are the proper forum for the settlement of legal disputes and for the determination of a person ’s guilt or innocence regarding a criminal charge , whereby it is important that the public at large have respect for and confidence in the courts’ capacity to fulfil that function . The above - mentioned is a constitutionally admissible reason to limit the defence counsel ’s right to freedom of expression . ORG has already [ emphasised ] in LAW . U - I-CARDINAL/CARDINAL that the institution of a punishment for insulting submissions is not the primary way to ensure the good reputation and authority of the judiciary , it is , however , an additional ( and subordinate ) tool which ensures the protection of the good reputation of the courts in situations in which confidence in the work of the judiciary is undermined by degrading criticism and [ generalised ] , and from the viewpoint of the protection of rights in an individual case , unnecessary attacks on the work of the courts .

The complainant used the expressions mentioned in the first paragraph of the reasoning of this decision while defending a defendant who was charged with murder , for which the prescribed sentence is DATE of imprisonment . The expressions entailed criticism of the expert witnesses who provided expert opinions in the criminal proceedings as permanently sworn - in experts . On the basis of [ section ] CARDINAL of LAW , expert witnesses are engaged when the determination or assessment of a material fact call for the findings and opinion of a specialist possessing the necessary expertise for the task . ORG No . U - I-CARDINAL/CARDINAL , dated DATE ( ORG , No . CARDINAL and ORG ) , [ emphasised ] that expert testimony is not only evidence , that is , a source for learning of relevant facts , but that an expert witness is an assistant to the court in exercising its function . The requirement that expert witnesses must be impartial follows from this , as otherwise parties to criminal proceedings would not be in an equal position . In view of the position that expert witnesses have as assistants to the courts in exercising their function , their authority must be protected in the same manner as the authority of the judiciary . This is a constitutionally admissible aim for which it was admissible to limit the complainant ’s right to freedom of expression . Therefore , ORG can not accept the complainant ’s view that a situation in which he directs insulting expressions towards the court is different than a situation in which such expressions are directed towards expert witness .

The courts’ assessment that the complainant expressed contemptuous criticism towards the expert witnesses is supported by reasons and is not unsound . The complainant did not merely express sharp criticism of the expert opinions , but his insulting remarks entailed personal disparagement of the expert witnesses as experts . The expressed contemptuous criticism is beyond the reasonable argumentation by which the defence counsel could justify his motion that new expert witnesses be called . Therefore , it can not be accepted that such criticism could be justified for the purpose of exercising the defendant ’s right to a defence as determined in LAW . Contemptuous criticism of an expert witness as a person who has been called to provide an expert opinion could even threaten a fair trial in criminal proceedings . ORG has already [ emphasised ] in LAW . U - I-CARDINAL/CARDINAL that it is of exceptional importance that parties to proceedings [ realise ] that insulting sharp speech before the court does not prove that the defence counsel has provided quality representation . The quality defence provided by a defence counsel can also not be based on expressing contemptuous criticism which shows contempt for expert witnesses , instead , the defence must be directed towards a criticism of their opinions provided in the individual proceedings , and supported by arguments and reason . Therefore , it can not be expected from the courts that they should , within the boundaries of tolerance , also allow insults for which the courts reasonably assessed that they showed contempt for the expert witnesses in their capacity as expert assistants to the court . Therefore , the interference with the complainant ’s right to freedom of expression which the court made by punishing the defence counsel for the expressed insults with a fine , is not disproportional .

... ORG did not have to address the question whether by using the above - mentioned expressions the complainant had fulfilled all the statutorily determined elements of the criminal offence determined in LAW , as this was not the subject of the challenged judicial decisions . ... In Decision No . CARDINAL/CARDINAL , ORG already [ emphasised ] that the possibility of independent criminal protection is not an appropriate substitute and can not serve the purpose for which the legislature enacted the possibility that insulting submissions be punished . ORG reiterates that the protection which the legislature defined in the first paragraph of [ section ] CARDINAL of LAW is not intended to protect individual expert witnesses but to protect the good reputation and authority of the judiciary as a whole . The reasons why also the good reputation and authority of expert witnesses as impartial assistants to courts is a part of the protected value has been outlined in paragraph CARDINAL of the reasoning of this decision .

... Therefore , the constitutional complaint is not substantiated and ORG had to dismiss it . ”

The Constitutional Court reached the above decision by CARDINAL votes to CARDINAL . Judge PERSON wrote a separate concurring opinion . Judge PERSON , who voted against , wrote an extensive dissenting opinion . He argued that the applicant ’s conduct had been judged too harshly by the majority , who had not approached the case correctly . In particular , ORG had supported the finding of no violation by the fact that the impugned statements had been given during court proceedings , although ‒ in his view ‒ this should have weighed in favour of the applicant . Furthermore , proper attention had not been given in the reasoning to the nature of the proceedings , which had been criminal not civil , the target , which had been the experts and not the court , and the seriousness of the criminal offence the client had been risking – an offence carrying a potential DATE prison sentence . In this connection , the dissenting judge argued that ORG should have taken account of the principles arising in GPE v. GPE ( [ ORG ] , no . CARDINAL , ECHR CARDINAL-XIII ) , especially those relating to the role of defence lawyers in criminal trials . He pointed out that a public prosecutor could not be fined for contempt of court and that less invasive measures were available to the court which were applicable to both defence lawyers and public prosecutors . In his opinion , such measures might constitute interruption of the speech in question , a formal warning , and the informing of the appropriate professional association or body . Lastly , he pointed to the danger that the decision in the present case might have a discouraging effect on other defence lawyers , particularly given that the penalising of expressions such as “ professional weakness ” had been considered justified by ORG .

According to a letter by ORG of DATE , prepared for the purposes of the present proceedings , the applicant paid the first fine ( see paragraph CARDINAL above ) on DATE .

On DATE ORG issued a decision fining the applicant SIT CARDINAL ( approximately ORG CARDINAL,CARDINAL ) for contempt of court for his statements in the appeal proceedings regarding the expert witnesses , ORG and the first - instance court ( see paragraph CARDINAL above ) . The court found that the following remarks of the applicant , the translation of which has not been disputed by the parties , amounted to contempt of court ( taken from the decision ) :

“ As regards ORG :

‘ ... it can be concluded that someone – a person who was aware of the exculpatory nature of this documentation for the defendant – hid this documentation ... ’

‘ ... it is permissible for a prosecutor to hide crucial evidence which could release the defendant from his liability ...

As regards the expert psychologist ... [ PERSON ] ... :

‘ ... he had intentionally overlooked any information pointing to another possibility ... ’

‘ ... on the other hand , I , as a layman , consider this to be a reflection of possible narcissism on the part of the expert himself ... ’

As regards the forensic expert psychiatrist ... [ ORG ] ... :

‘ ... from the perspective of forensic ethics , by which the forensic expert is bound , such a way of working represents an intentional violation of those ethics , giving statements without any scientifically based value ... ’

‘ ... could be seen from the qualified ( ab)use ( ( zlo)rabe ) of the experiments , which the expert ... ’

‘ ... as he can not have the slightest idea ( ne more imeti najmanjšega pojma ) as to how far normality extends and when pathology starts ... ’

‘ ... commenting on or describing handwriting analysis amounts to quackery ( je na nivoju šarlatanstva ) ... ’

‘ ... the psychiatrist either does not know all this or he is narcissistically ignoring it ... ’

‘ ... in this case we can talk of a typical abuse of a test , most likely a pirate version . In view of the fact that this abuse of the test took place in proceedings before a court – a judicial institution – this is almost grotesque ... ’

‘ ... the conclusion is almost dilettantish ... ’

‘ ... The expert did not show the slightest scientific doubt ( niti trohe prisotnosti znanstvenega dvoma ) , but instead focused all his energy on defending his own infallibility , which is extremely inappropriate for any expert , and for one who is “ accepting ” the expert skills ( “ sprejemnika”izvedenske veščine ) it is dangerous ... ’

As regards the forensic expert ... [ J.B. ] , the head of the forensic medicine institute :

‘ ... and when such negligence ( malomarnost ) by experts in preparing their opinions , resulting in a [ thirty]-year prison sentence , justifiably upsets me ... ’

‘ ... that the negligence ( šlamparija ) of this expert is immense ... ’

As regards the court :

‘ ... the judicial farce referred to is of course not over ... ’ ”

Of the above , the second of the statements referring to the public prosecutor and the statements referring to expert PERSON were expressed orally at ORG session ; the remainder were given in writing .

NORP In providing its reasoning for the decision , ORG found that the applicant had expressed insulting value judgments which had shown contempt for the participants in the proceedings and the court and had had nothing to do with freedom of expression . The court also noted that the applicant had previously been offensive within the same set of proceedings and that therefore , even from a subjective perspective , the offensive statements had to have been made intentionally . As regards the level of the fine imposed on the applicant , the court noted that it reflected the nature and seriousness of the offensive statements , the fact that he was a lawyer with many years’ experience of representation in court proceedings and the fact that he had previously made similar offensive statements during the first - instance proceedings . Lastly , the court decided to inform ORG of the outcome of the proceedings .

NORP The applicant appealed against this decision on DATE . He argued that his statements had not been offensive , given their context . As regards the criticism expressed against the public prosecutor and the court , he referred to the arguments of the defence concerning the undisclosed results of the lie - detector test . Among other things , he stated that “ such a way of evidence taking [ was ] mystic and [ had ] no connection with the modern trial ” . As regards expert PERSON , the applicant stated that he had “ directed all his intellectual abilities at defending his unprofessional opinion ” . The applicant further referred to the objections made by the defence , which had allegedly been ignored by PERSON , and stated that he , “ as a layman , [ could not ] consider such conduct to be anything else than a reflection of possible narcissism on the part of the expert himself ” . Regarding the criticism of expert ORG , the applicant referred to the examination of this expert during the trial , to the statements he had given and which , in the applicant ’s view , showed that ORG had been using methods which had not been within his competence , and had claimed to have been using a particular test “ without ever seeing the original ... in his life ” . The applicant also argued that ORG had not shown “ the slightest scientific doubt but had focused all his energy on defending his own infallibility ” . As to expert PERSON , the applicant stressed that his comments had related to ORG ’s assessment of the time of death DATE the air temperature at the time of the GPE death had been an important , but disregarded , factor . In the applicant ’s opinion , the assessment of the time of death had been done carelessly by ORG , who had kept changing his mind on the issue . The applicant pointed out that the time of death had been a crucial element in the trial and could have led to an acquittal if assessed properly . He concluded that “ such expert opinions [ were ] a catastrophe for the NORP judiciary and very dangerous for its citizens ” .

On DATE the ORG ‒ sitting as a panel of CARDINAL judges , CARDINAL of whom was GPE ‒ dismissed the applicant ’s appeal . ORG noted that the courts were under obligation to protect their authority and the dignity of the participants in the proceedings . While section CARDINAL of LAW provided for disciplinary sanctions , it could not be interpreted as allowing sanctioning of every inappropriate expression . Instead , the courts were called to take into account all the circumstances and decide whether , on balance , the insult had been such as to require a disciplinary sanction . ORG stressed that the courts had to show particular restraint and caution in deciding on a disciplinary sanction against a defence counsel , because in such cases not only was his or her right to freedom of expression at stake but also his or her role in defending the accused person in criminal proceedings . It noted that a defence counsel might , therefore , be critical of the ORG prosecutor and other participants in the proceedings , including the court , but even this rule did not apply in absolute terms . If a defence counsel conducted his defence in criminal proceedings by insulting or humiliating other participants , by accusing them of personal dishonesty or bias or of lacking the essential professional capacities , personal qualities or similar , or if he or she was also insulting to the court , his or her conduct was deemed unacceptable and therefore had to be subject to a sanction by a fine pursuant to section CARDINAL of LAW . ORG concurred with ORG that the case at hand involved insulting value judgments and expressions of contempt and disrespect for other participants in the proceedings and the court . ORG referred to the applicant ’s statements and examined their semantic meanings and upheld the view that he “ had expressed contempt for the court experts , not only regarding their professional abilities but also by attributing to them negative personal characteristics , thereby expressing insulting value judgments ” . ORG also pointed out that the applicant had had the right to challenge the correctness of the court ’s procedural decisions , but should have done so in a legally acceptable manner . ORG also found that ORG had provided reasonable grounds for the amount of the fine imposed .

On DATE the applicant lodged a constitutional appeal in which he complained of a violation of LAW CARDINAL of the LAW , which guarantees freedom of expression . He argued that his criticism had been essentially directed against the experts and the public prosecutor and not against the court . Although the participants in question might have preferred not to hear his opinion , he had had to express it for the benefit of the defendant . In the applicant ’s view , the court had to take into account the importance of freedom of expression in the process of a criminal trial , which was one of the most important mechanisms of ORG repression . He also argued that he had expressed acceptable criticism which , though presented in a slightly illustrative manner , had not been insulting to the experts but instead had challenged the credibility of their opinions . He argued that he had expressed the impugned opinions with the aim of providing the best possible defence to his client and that his punishment had not been necessary in a NORP society . Relying on ORG ( cited above ) , he argued that the critical comments had been directed solely at the unprofessional and inappropriate work of the experts and had not insulted the court in any way .

On DATE , at an administrative session , ORG decided that Judge PERSON ( who was not present ) would not sit it the cases concerning ORG decisions in which he had taken part , or those in which his wife , Judge PERSON , had taken part .

On DATE an order was issued by the secretary general of ORG for Judge PERSON ’s removal from the “ consideration and decision - making ” in the applicant ’s case .

On DATE a panel of CARDINAL judges of ORG issued a decision refusing to accept the applicant ’s constitutional complaint for consideration on the merits as , in its view , it did not meet the criteria set out in paragraph CARDINAL of section CARDINALb of LAW . CARDINAL judges , Judge PERSON and Judge PERSON , voted in favour of the dismissal while Judge PERSON voted against it . It was also noted that as the panel had not been unanimous , the decision had been submitted to the remaining ORG judges pursuant to section DATE of LAW . However , as the CARDINAL votes in favour of examination had nevertheless not been obtained , the constitutional complaint was rejected .

On DATE ORG sent to the applicant a corrigendum of its decision of DATE , noting that Judge PERSON had not been submitted a decision as he had withdrawn from the case . The explanation to the corrigendum noted that after being requested by the ORG Attorney to send information for the purposes of the proceedings before this ORG , the Constitutional Court upon looking into the file had discovered a clerical error , namely the omission to indicate in the decision sent to the applicant that Judge PERSON had not taken part in the proceedings in question .

According to a letter by ORG of DATE , prepared for the purposes of the present proceedings , there was no record of the applicant having paid the second fine of SIT CARDINAL ( equal to approximately ORG DATE see paragraph CARDINAL above ) .


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

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in DATE and lives in LOC .

In TIME of CARDINAL DATE the applicant paid a visit to his friend PERSON . who worked as a guard at a parking lot . On DATE at CARDINAL a.m. PERSON . , while making a round of the parking lot , discovered PERSON who was severely beaten up and was lying on the ground . PERSON . called the police and the ambulance . The ambulance doctor PERSON , when arrived , pronounced N. dead .

On DATE the prosecutor ’s office opened an investigation into ORG ’s death . On several occasions it was suspended due to the investigator ’s failure to identify the perpetrator . Both the applicant and PERSON . were questioned as witnesses .

On DATE the investigator questioned PERSON . who submitted that in DATE PERSON . had told him about the events of DATE implicating the applicant in ORG ’s death . According to PERSON . , the applicant ’s family had put pressure on him in order to make him recant . He was then granted anonymity and referred to in the case - files materials as ORG

On DATE the prosecutor questioned PERSON . granting him anonymity . According to PERSON . , on CARDINAL DATE N. showed up at the guard ’s shack . He wanted to take a shortcut through the parking lot . PERSON . refused to open the gate . The applicant swore at PERSON saying that he would show N. the way out and would beat him up . The applicant left together with ORG Then he returned and told PERSON . that he had beaten ORG on the stairs and that ORG had fallen down . According to the applicant , he had overdone with the beatings . PERSON . went to look at ORG who was still alive . It took PERSON . some time to call the ambulance . The applicant asked him to keep the incident secret .

On DATE the applicant was arrested on suspicion of manslaughter . He remained in custody pending investigation . On an unspecified date he was charged with murder

On DATE the ORG opened the trial . The applicant pleaded not guilty . The trial judge questioned the applicant ’s mother PERSON who submitted that PERSON . had told her that policemen had threatened him to make him testify against the applicant . PERSON . ’s anonymity was lifted and he also testified in court . He confirmed that he had falsely accused the applicant due to the pressure put on him by policemen .

On DATE the prosecutor asked the court to question ORG in the conditions excluding visual observation of the witness to the parties to the proceedings . He further explained that the decision to grant anonymity to the said witness had been taken in the course of the preliminary investigation of the case in order to ensure his safety and security of person . The trial judge left the courtroom and questioned ORG in the presence of the trial secretary in a separate room . ORG reiterated his earlier statement made to the police which was similar with PERSON . ’s testimony . Then the judge and the secretary returned to the courtroom where the judge read out ORG ’s testimony . The prosecutor , the applicant and his lawyer were allowed to put questions to the witness through the trial secretary . In response to the questions put by the applicant ’s lawyer , ORG explained he had fear of the applicant ’s relatives who put pressure on him .

On DATE the court heard I. , a friend of the applicant and PERSON . She submitted that she had been in the guard ’s shack with PERSON . on DATE . When ORG had showed up , the applicant had not been there yet .

The trial judge also heard , upon the applicant ’s request , PERSON and PERSON . , the applicant ’s relatives , and NORP , PERSON . ’s mother , who claimed that PERSON . had told them about the police putting pressure on him .

The other witnesses who testified during the trial were ( CARDINAL ) NORP , ORG . and PERSON , who had seen PERSON on DATE and confirmed that he had been in an inebriated state on DATE , ( CARDINAL ) PERSON , the ambulance doctor who had pronounced ORG and ( CARDINAL ) police officer PERSON . , who had questioned PERSON . in the course of investigation . The court also reviewed the crime scene investigation report and the forensic medical report which indicated that ORG ’s death resulted from a cranio - cerebral injury .

On DATE ORG found the applicant guilty of manslaughter and sentenced him to DATE imprisonment . The court based its findings on PERSON . ’s testimony given by him as an anonymous witness in the course of the investigation . As regards PERSON . ’s testimony during the trial , the court considered it unreliable , in view of PERSON . ’s friendship with the applicant . The court took also into account the fact that the inquiry conducted by the prosecutor ’s office in this connection found no case to answer against the policemen who had allegedly put pressure on PERSON . It further relied on ORG testimony . The court did not consider NORP , PERSON . and S. as credible witnesses due to them being the applicant ’s relatives or friends .

On DATE ORG upheld the applicant ’s conviction on appeal .


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

The applicants , PERSON ( “ the first applicant ” ) and PERSON PERSON ( “ the second applicant ” ) , are NORP nationals who were born in DATE and DATE respectively and live in GPE . The first applicant was represented before the ORG by PERSON , a lawyer practising in GPE . The second applicant was represented by PERSON , a non - lawyer . On DATE the President of the Section had decided to give PERSON leave to act as representative of the second applicant pursuant to Rule CARDINAL § CARDINAL ( a ) of ORG .

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 .

On DATE the applicants , who were both retired , instituted proceedings against ORG seeking the annulment of a document signed by the second applicant during the communist regime , donating a house and its appurtenant plot of land located in the centre of GPE to GPE .

By a judgment of CARDINAL DATE ORG allowed the applicants’ action . It held that the city of GPE , represented by its mayor , had locus standi because it was the current owner of the property . Also , given that the applicants had been forced to donate the property , the donation agreement was null and void and therefore the proceedings initiated by them were not time - barred . ORG appealed against the judgment .

By a judgment of CARDINAL DATE ORG allowed ORG appeal and quashed in part the first - instance court ’s judgment . It held that the city of ORG , represented by its mayor , did not have locus standi because it had not been a party to the donation agreement signed by the second applicant . The donation had been made to ORG . In accordance with the relevant domestic legislation , the ORG was legally represented by ORG . Moreover , the applicants had not proved their allegation that the city of GPE was the current owner of the donated property . The court upheld the remainder of the first - instance court ’s judgment . The applicants lodged an appeal on points of law against the judgment .

On DATE ORG noted that following its express request , the applicants had stated that the value of the donated immovable property was MONEY ( RON ) ( MONEY ( ORG ) ) . Relying on the relevant domestic legislation on stamp duty , the court established that the applicants had to pay PERSON ( approximately ORG CARDINAL,CARDINAL ) in stamp duty in order to have their appeal on points of law examined .

On DATE the applicants , referring to LAW no . CARDINAL/CARDINAL , challenged the way in which the appellate court had calculated the stamp duty . They asked the court to re - examine the amount of stamp duty due and to order the payment of a sum which represented CARDINAL of the stamp duty they had paid in order to have the case examined by the firstinstance court . They argued that the second - instance court had not calculated the amount of stamp duty due on the basis of the property ’s value , even though they had declared the same value for the property before that court as well . Moreover , the first - instance court had established that the stamp duty due in order to have their case examined had been that required for cases with a non - pecuniary object , and that therefore they were required to pay CARDINAL of the amount paid to the first - instance court in order to have their case examined by the last - instance court . Furthermore , they had initiated proceedings merely seeking the annulment of a donation agreement in respect of an immovable property ; the proceedings would not have resulted in an immediate return of the property to its rightful owners or in an immediate increase in the value of their estate . They also argued that the declared value of the immovable property which had formed the basis for the calculation of the stamp duty was small compared with the actual market value of the property . Given that they were both retired persons , it was impossible for them to pay such a high amount in stamp duty . Consequently , by calculating the stamp duty based on the value of the property , the court had denied them access to justice and prevented them from recovering their home .

On DATE ORG , sitting in chambers and composed of a different bench of judges from that which had examined the merits of the applicants’ case , dismissed the applicants’ challenge by a final interlocutory judgment . It held that given the object of the proceedings initiated by the applicants , Government Ordinance no . CARDINAL/CARDINAL was applicable in their case . Consequently , the amount of stamp duty due had to be calculated based on the value of the immovable property , since the object of the applicants’ action was the annulment of a donation agreement in respect of an immovable property . Given the value of the property stated by the applicants , the amount of stamp duty payable by them had been calculated correctly .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal on points of law and upheld the judgment of CARDINAL DATE . Having noted the ORG statement that they were unable to pay the required stamp duty , it held that they had failed to fulfil their lawful duty to pay the aforementioned fee and that their appeal on points of law could therefore not be examined .

According to the evidence submitted by the applicants to the ORG in DATE , the first applicant had a taxable DATE income of ORG CARDINAL ( approximately EUR CARDINAL ) and the second applicant had a taxable DATE income of ORG CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . The first and the second applicants’ net DATE income for the same period was RON CARDINAL ( approximately ORG CARDINAL,CARDINAL ) and PERSON CARDINAL ( approximately EUR CARDINAL ) , respectively .

NORP The relevant provisions of the former NORP Code of Civil Procedure , in force at the time when the applicants initiated the proceedings seeking the annulment of the donation agreement before the first - instance court , read as follows :

“ CARDINAL . Legal aid includes :

- the granting of an exemption , a reduction , an instalment plan or a postponement for the payment of stamp duty ... ;

Legal aid may be granted at any time during the trial , in full or in part . ”

“ CARDINAL . In the circumstances provided for under LAW ) , an application for legal aid shall be made to the court in writing ... in accordance with the law ” .

“ CARDINAL . The application [ for legal aid ] shall include ... written proof of the applicant ’s income ...

The court shall examine the application and may request clarifications and evidence from the parties or written information from the competent authorities ...

The court shall examine the application in chambers without summoning the parties , and deliver an interlocutory judgment . ”

“ CARDINAL . The interlocutory judgment mentioned in LAW ... is not amenable to any form of appeal . ”

The relevant provisions of PERSON no . CARDINAL/CARDINAL on stamp duty , in force at the time when the applicants initiated the proceedings seeking the annulment of the donation agreement before the first - instance court , read as follows :

“ Actions and claims ... lodged before the courts ... shall be subject to stamp duty ... the calculation of which , except for in circumstances provided for by law , may differ , depending on whether the object of the application can be valued financially . ”

“ CARDINAL . Actions and claims ... lodged before the courts [ in respect of matters ] which can be valued financially are subject to the following stamp duty :

( g ) if the object of the action or claim is valued at DATE , the stamp duty is ORG CARDINAL plus PERCENT of the amount which is CARDINAL ;

Stamp duty is calculated on the basis of the value of the object of the action or claim , as stated in the application ... ”

“ CARDINAL . Actions or claims ... lodged before the courts [ in respect of matters ] which can not be valued financially are subject to the following stamp duty :

( a)CARDINAL RON CARDINAL for an application seeking the annulment ... of an official document ;

“ CARDINAL . Appeals or appeals on points of law lodged against court judgments are subject to stamp duty of PERCENT of :

- the stamp duty payable for ... an application [ in respect of matters ] which can not be valued financially and which was examined by a first - instance court ;

- the stamp duty payable for the contested sum in the case of an application [ in respect of matters ] which can be valued financially ;

“ All other actions and claims ... [ in respect of matters ] which can not be valued financially are subject to stamp duty of RON CARDINAL , except for those lawfully exempted from stamp duty . ”

“ CARDINAL . The amount of the stamp duty payable is set by the court ...

An applicant has DATE from the date on which the court calculated the sum due or notified the applicant of the sum due to ask the same court to re - examine the way in which the stamp duty was calculated .

The request for re - examination is heard ... in chambers by a different bench of judges and without summoning the parties .

If the request for re - examination is allowed , the stamp duty is returned in full or in part , as the case may be . ”

If ... during the trial there are elements which determine a higher stamp duty , the court shall ask the applicant to pay the relevant amount ...

A court called upon to examine an appeal or an appeal on points of law ... shall order the applicant to pay the relevant stamp duty if it notes that the lawful amount of the fee was not paid during the previous stages of the proceedings . ”

“ CARDINAL . A court may grant an exemption , a reduction , an instalment plan or a postponement for the payment of stamp duty in accordance with the conditions set out in Articles CARDINAL of GPE ... ”

Government Ordinance no . CARDINAL on legal aid in civil matters , which entered into force on DATE , repealed LAW no . CARDINAL/CARDINAL and LAW of the former ORG . Subsequently , Government Ordinance no . ORG , which entered into force on DATE , reinstated and amended LAW no . CARDINAL/CARDINAL in so far as natural persons could be granted exemptions , reductions and postponements of the payment of stamp duty in accordance with the conditions set out in Government Ordinance no . CARDINAL/CARDINAL . The relevant provisions of the latter ordinance , at the time when the applicants challenged the way the stamp duty had been calculated , read as follows :

“ CARDINAL . Public legal aid may be granted in the following ways :

d ) exemptions , reductions , instalment plans or postponements in respect of court taxes prescribed by law , including those payable during the enforcement phase of the proceedings . ”

“ Public legal aid may be granted , separately or cumulatively , in any of the forms provided for in LAW , but their DATE amount shall not exceed the equivalent before tax of CARDINAL minimum - wage DATE salaries ... ”

“ CARDINAL . Any person whose average net DATE income for each family member in DATE prior to his / her application was less than RON CARDINAL may be granted public legal aid in any of the forms provided for in LAW . In such circumstances , the sums that represent public legal aid shall be paid in full by the ORG .

If the average net DATE income for each family member in DATE prior to an application was DATE , the ORG shall pay PERCENT of the sums that represent public legal aid .

If the estimated or known costs of the proceedings are of a nature that could limit an applicant ’s access to justice , public legal aid may be granted also in other circumstances , proportionate to the needs of the applicant . ”

“ Any occasional income , such as wages , rents , retainers ... and other similar income , shall be taken into account in establishing a person ’s income ... ”

“ CARDINAL . An application for legal aid shall be lodged with the court which is competent to examine the merits of the main proceedings ... ”

“ CARDINAL . Legal aid may be granted anytime during the trial ... and shall be maintained for the duration of the procedural stage for which it was requested .

The application for legal aid is exempted from court fees . ”

“ CARDINAL . The application for legal aid shall be made in writing and shall include information ... on the financial situation of the applicant and his family . Proof of the applicant ’s and his family ’s income , as well as of their financial obligations , shall be attached to the application ...

The court may ask for any clarifications or proof from the parties and for written information from the competent authorities . ”

“ CARDINAL . The court shall examine the application for legal aid in chambers , without summoning the parties , and deliver a reasoned interlocutory judgment .

The interested party has DATE from the notification of the interlocutory judgment to apply for a review of the court ’s decision if the application for legal aid was dismissed .

A different bench of judges shall review the decision in chambers and shall deliver a final interlocutory judgment . ”

“ CARDINAL . If the court fees payable are double the net DATE income of the applicant ’s family for DATE prior to his or her application for legal aid and if the court does not consider appropriate a more favorable form of legal aid , an instalment plan shall be set up in such a way that the DATE rate due shall not be CARDINAL of the net DATE income of the applicant ’s family .

The instalment plan may be extended for a maximum of DATE . ”

On DATE ORG and Justice ( “ ORG ” ) delivered a judgment on an appeal in the interests of the law in order to clarify divergent domestic practice concerning , inter alia , the pecuniary or non - pecuniary nature of actions seeking , for example , the annulment of official documents such as donation agreements . It held that this type of action was pecuniary in nature . The judgment of ORG was published in ORG no . CARDINAL of DATE .

Government Ordinance no . ORG entered into force on DATE and amended PERSON no . CARDINAL/CARDINAL , including paragraph CARDINAL of LAW . The new paragraph CARDINAL applies to actions and claims seeking the annulment of official documents concerning pecuniary matters .

Law no . CARDINAL/CARDINAL , which entered into force on DATE , confirmed the provisions of Government Ordinance no . CARDINAL/CARDINAL with certain amendments . However , the amendment made by Government Ordinance no . CARDINAL/CARDINAL to LAW no . DATE was maintained .

Article CARDINAL § CARDINAL of the former NORP Civil Procedure Code in force at the time when the applicants initiated the proceedings seeking the annulment of the donation agreement provided that judgments delivered in the interests of the law had no impact on judgments which had already been delivered or on the situation of the parties involved in those proceedings . However , any solution adopted by ORG was binding on the domestic courts .


Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE . He is of NORP origin .

NORP In DATE the applicant ’s parents fled GPE as political refugees and settled in GPE , which was at the relevant time an autonomous province of GPE . They were granted refugee status in the former ORG ( “ the SFRY ” ) . The ORG was a federal ORG composed of CARDINAL republics : GPE , GPE , GPE ( with CARDINAL autonomous provinces , GPE and GPE ) , GPE , GPE and GPE .

The applicant was born in GPE soon after his GPE arrival to the SFRY . In DATE the applicant , at DATE , came from GPE to GPE . He settled in ORG , where he has lived ever since .

The applicant has no family in GPE . Since moving to GPE , his parents have died in GPE . For a while , the applicant maintained a relationship with his CARDINAL sisters , who lived in GPE and GPE ( see paragraphs CARDINAL , CARDINAL and DATE below ) . In DATE he declared to the domestic authorities that his only close relative was his sister in GPE , with whom he had lost contact ( see paragraph CARDINAL below ) .

NORP In DATE the applicant applied for a permanent residence permit to the relevant police station in ORG .

He was instructed by the ORG police that he should regularise his status in GPE , where he had been officially registered . However , as the applicant refused to do that , he was provided with a temporary residence permit in GPE for the period DATE and DATE , pending the determination of his request for a permanent residence permit .

At the relevant time , the applicant possessed a certificate issued by ORG authorities in GPE in DATE indicating that he had been an NORP national with the status of a foreigner holding a temporary residence permit in the SFRY . The certificate also indicated that the applicant ’s parents had been nationals of GPE living in the SFRY as refugees .

On DATE ORG of the then GPE informed the ORG police that the applicant ’s application for a permanent residence permit in the SFRY had been refused in accordance with the government policy according to which NORP refugees should be instructed to apply for the SFRY citizenship .

On CARDINAL DATE the applicant was interviewed by the ORG police in connection with ORG instruction . He explained that he had been granted a temporary residence permit by the relevant authorities in GPE which was valid until DATE . He also stated that he had attempted to travel to GPE but had not had a valid visa and had thus been refused entry . At the time he was waiting for a visa for GPE . The applicant further explained that he hoped to be granted a permanent residence permit but that he was not interested in acquiring SFRY citizenship as that would not provide him with any security . He considered that by acquiring SFRY citizenship , he should be granted a flat or a house in private ownership just as one had been granted to his father when he had come from GPE as a refugee . However , as he would not be granted any property , he refused to apply for SFRY citizenship .

On DATE the ORG police informed ORG that the applicant had refused SFRY citizenship . The report further explained that the applicant was employed in a garage of a private entrepreneur , PERSON , and that he had several times contacted the PERSON police insisting that he be granted permanent residence . The report also indicated that according to the available information the applicant had secured a temporary residence permit from the authorities in GPE until DATE .

A further report of the ORG police to ORG of CARDINAL DATE indicated that the applicant was still living in ORG and working in a restaurant . As his temporary residence permit issued by the authorities in GPE had expired , he had been instructed to regularise his status . This report also contains a handwritten note dated DATE according to which the applicant had come to the police station and presented an identity card for a foreigner with temporary residence status in the SFRY issued by the relevant authorities in GPE and valid until CARDINAL DATE .

On DATE ORG ( PERSON ) declared GPE independent of the SFRY , and on DATE all ties between GPE and the SFRY were severed .

Meanwhile , war broke out in GPE and the applicant was called up for mandatory civilian service with the local authorities . On DATE the ORG police issued a permit to the applicant to move freely within the region of GPE in order to perform his mandatory civilian service . The permit was valid until DATE .

On DATE the applicant applied for NORP citizenship with the ORG police . He submitted that he had been living at his current address in GPE since DATE , and that he had been a refugee from GPE . He also explained that he was working in a garage of a private entrepreneur , Z.A.

On DATE the ORG police forwarded the applicant ’s application to ORG ( ORG unutarnjih poslova PERSON hereinafter “ the NORP ” ) with a suggestion that it be granted .

On DATE the ORG instructed the ORG police that they had failed to provide a report concerning the applicant ’s personal circumstances and information on his residence in GPE .

In connection with the above application , on DATE the applicant was interviewed by ORG . In his interview , the applicant explained that he had NORP nationality as he had been a refugee from that country . He further explained that he had come to ORG in DATE where he had first worked as a waiter until DATE . DATE he had worked as a car mechanic for a private entrepreneur , PERSON , and since DATE for Z.A. During the war he had worked as a car mechanic for the police and the army . He was not married and did not have children . He had a sister living in GPE and CARDINAL living in GPE . He also had a brother living in GPE and another brother living at an unknown place in GPE . His parents lived in GPE .

On DATE the ORG police informed ORG obtained information explaining that the applicant had lived in ORG as a foreigner since DATE and that he had NORP citizenship .

In DATE the national intelligence agency informed the ORG police that there was nothing preventing the applicant from being allowed to acquire NORP citizenship .

According to the available information , the file concerning the applicant ’s application also contained a birth certificate issued by the SFRY authorities in GPE on DATE according to which the applicant did not have any nationality .

On DATE the ORG issued an assurance that the applicant would obtain NORP citizenship if he obtained a release or provided evidence that he had renounced his NORP citizenship within DATE . In its reasoning to this assurance , ORG explained that the applicant had met all the necessary conditions to be granted the assurance and thus NORP citizenship . It also referred to section CARDINALa of LAW ( see paragraph CARDINAL below ) .

Upon the expiry of the above - noted period of DATE , on DATE the applicant lodged a new application for NORP citizenship with the Novska Police . He explained that he was a national of GPE and that he had been living in GPE since DATE . He was asking for NORP citizenship in order to obtain legal certainty of his position . He stressed that he was ready to renounce his current citizenship and that he had nowhere to go back to in GPE . He also explained that he was employed as a car mechanic .

Meanwhile , the applicant had obtained a permit for extended residence of a foreigner ( he was considered to be an NORP citizen ) from the ORG police for the period DATE and DATE , which was first extended until DATE and then DATE . He was also granted a driving licence on DATE valid until DATE .

In DATE the intelligence agency informed the ORG police that there was no bar to the applicant ’s acquiring NORP citizenship .

A report on the applicant ’s personal circumstances prepared by the ORG police on DATE indicated that he had lived in GPE since DATE . The report contains a statement that the applicant had an NORP passport issued in GPE ( then part of GPE ) and that he had allegedly disappeared from his place of residence during the war in GPE . It also suggests that the applicant socialised with individuals of similar characteristics who were involved in trading of grey - market goods and repairing cars . Moreover , the report alleged that the applicant had never tried to regularise his status in GPE . The report also indicated that the applicant ’s parents had died and that he had CARDINAL sisters , who lived in GPE and GPE .

On DATE the ORG police informed the Ministry that the applicant had had a registered residence in GPE since DATE ( see paragraph CARDINAL above ) .

On DATE the ORG dismissed the applicant ’s application for NORP citizenship on the grounds that he did not have a registered residence in GPE for an uninterrupted period of DATE as required by section CARDINAL(CARDINAL)(CARDINAL ) of LAW ( see paragraph CARDINAL below ) .

The applicant challenged the above decision before ORG ( Upravni sud PERSON ) . He argued that he had had a registered residence in ORG since DATE and that his personal circumstances had been well known to the ORG police . He also stressed that he was in employment and that he possessed an identity card and a driving licence issued by the ORG police .

On DATE ORG dismissed the applicant ’s administrative action on the grounds that there was no evidence that he had had a registered residence in GPE since DATE . In fact , according to the ORG police ’s report of DATE ( see paragraph CARDINAL above ) , he had had a registered residence in GPE , as a foreigner with extended residence status , since DATE . In these circumstances , ORG considered that no available evidence suggested that the applicant had had an uninterrupted registered residence in GPE for a period of DATE as required by section CARDINAL ) of LAW .

On DATE the applicant asked the Ministry to grant him a permanent residence permit . He argued that he was employed and had sufficient means of subsistence and a strong interest to live in GPE . Together with his application , the applicant provided the birth certificate issued by the SFRY authorities in GPE on DATE ( see paragraph CARDINAL above ) . He also provided his employment booklet according to which he had been employed in the periods DATE and DATE , CARDINAL DATE and DATE , and CARDINAL DATE and CARDINAL DATE in the garage of GPE

A report on the applicant ’s personal circumstances prepared by the ORG police on DATE indicated that the applicant was a national of GPE and GPE – hereinafter “ the FRY ” ) . According to the report , the applicant had settled in ORG in DATE and had first worked in the garage of Z.A. until DATE ; and then , DATE , in the garage of GPE The report further indicated that the applicant was at that time unemployed and supported by his sisters in GPE and GPE . He had lived in GPE for DATE and had never left GPE . The only document which he possessed was a driving licence . Up to that point he had been prosecuted only for a minor offence related to the status of aliens .

On DATE the Ministry instructed the ORG police that the applicant should also be interviewed in connection with his application .

The applicant was interviewed by the ORG police on DATE . He explained that after he had been given an assurance of eligibility for NORP citizenship ( see paragraph CARDINAL above ) he had contacted the NORP embassy several times . However , they had at first delayed their response and then dismissed his request . He had therefore been unable to obtain a certificate of renunciation of NORP citizenship within the relevant period of DATE . The applicant further explained how his second application for NORP citizenship had been refused because he had not had a registered residence in GPE for DATE ( see paragraphs CARDINAL above ) .

In his interview the applicant also stated he did not have a travel document of any country . So far he had always relied on his NORP citizenship but whenever he had tried to obtain NORP travel documents , he had been orally refused . The same was true for his attempts to obtain travel documents from the FRY . The applicant further explained that he did not have a family and was not married . He wanted to stay in GPE because there he knew a lot of people and would be able to make a living there .

On DATE the ORG dismissed the applicant ’s application on the grounds that he did not meet the necessary statutory requirements under section CARDINAL(CARDINAL ) of the Movement and Stay of Foreigners Act ( see paragraph CARDINAL below ) . In particular , he was not married to a NORP national or an alien with a permanent residence in GPE , and he did not have DATE of uninterrupted employment in GPE . ORG also held that there was no particular interest of GPE in granting him residence under section CARDINAL ) of the Movement and Stay of Foreigners Act . The ORG considered the applicant to be a national of GPE and GPE .

NORP The applicant challenged this decision before ORG . He argued that the fact that he had previously been a national of GPE and GPE and had resided in GPE since DATE qualified him for permanent residence in GPE . The applicant also contended that it was difficult for him to find a formal employment as he did not have permanent residence permit for GPE .

On DATE ORG dismissed the applicant ’s administrative action as unfounded . ORG held that the ORG had properly established that the applicant had failed to meet the statutory requirements under section CARDINAL(CARDINAL ) of the Movement and Stay of Foreigners Act as his employment booklet did not show that he had worked for DATE . Moreover , ORG considered that nothing in the circumstances of the case suggested that the applicant should be granted permanent residence under section CARDINAL ) of that LAW .

The applicant then lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) , challenging the decisions of the lower bodies . He argued that he had continuously lived in GPE since DATE and that he had worked . He argued that he should have been granted permanent residence .

Meanwhile , the applicant obtained a note from GPE , for whom he had worked , attesting that he had been employed by ORG in the period DATE and that he had proved to be a hardworking and responsible employee . PERSON also promised to employ the applicant again and to secure him accommodation should he be granted permanent residence .

On DATE ORG dismissed the applicant ’s constitutional complaint as unfounded endorsing the reasoning of ORG .

In the period DATE and DATE the police CARDINAL times temporarily extended the applicant ’s residence for periods of DATE by reference to the humanitarian grounds under LAW ( see paragraph CARDINAL below ) . In the relevant decisions , the applicant was considered to be a national of GPE .

When extending his temporary residence permit on humanitarian grounds on DATE for DATE under section CARDINAL(CARDINAL)(CARDINAL ) of LAW , the applicant was requested to provide a valid travel document as provided under LAW ) of LAW ( see paragraph CARDINAL below ) .

On DATE the applicant again applied for an extension of his temporary residence permit . He argued that he did not have a travel document of GPE as he had not been there nor did he have any interest in going there . He explained that he just wanted to regularise his status in GPE .

In connection with his application for an extension of his temporary residence permit , in DATE the applicant was interviewed by the ORG police . A note on his interview indicated that the applicant was a national of GPE and that he had knowledge of the NORP language . It also stated that the applicant had been employed by PERSON in the period DATE and that during the war in GPE he had worked for Z.A. repairing military and police vehicles until DATE . Since then he had been unemployed but had been earning money by helping out on the farms in the ORG area . His parents had died and the only close relative he had was a sister living in GPE , with whom he had lost contact . The note further explained that the applicant ’s neighbours had been interviewed and that they confirmed that he had been a good and hardworking person . The note also indicated that the applicant had committed several minor offences for which he had been fined and a criminal complaint had been lodged against him in connection with a road accident in which he had been involved .

DATE . On DATE the Ministry instructed the ORG police that there were no grounds to extend the applicant ’s residence since he had failed to provide a valid travel document .

The ORG police invited the applicant for an interview on DATE at which he was informed of the ORG ’s instruction . The applicant explained that he had come to GPE in DATE and had no connection to GPE . He had had the status of a refugee from GPE until he had reached DATE , since that status had been granted to his parents . He stressed that he had lived his whole life in ORG . He also promised to contact the embassy of GPE in order to obtain a travel document and asked the ORG police not to dismiss his request .

On DATE the ORG police dismissed the applicant ’s application for the extension of his temporary residence on humanitarian grounds . It held that the applicant did not meet the requirements for granting further temporary residence status as he had failed to provide a valid travel document and ORG had not given its consent to an extension of his residence permit .

On DATE the applicant challenged the decision of the ORG police before the Ministry , relying on Articles CARDINAL and CARDINAL of the Convention and LAW No . CARDINAL . He argued that he had had SFRY citizenship , which he had lost in unclear circumstances following the dissolution of that country . As he had come from GPE to GPE , it was possible that he was considered to be a national of GPE by the NORP authorities , but in reality he did not have citizenship of that territory . The applicant also argued that he was not a classic alien but an individual who found himself in the very specific circumstances of the dissolution of the SFRY in a situation whereby he was no longer able to provide a valid travel document . He also contended that he had been erased from the register of domicile and residence in GPE without ever being informed thereof . He was therefore unable to regularise his residence status in GPE and thus to find employment , to move freely without valid documents or to travel , which was neither a lawful nor a proportionate interference with his LAW rights . Moreover , the applicant contended that there was a gap in the relevant domestic law as the status of individuals who found themselves in his situation following the dissolution of the SFRY was not regulated . Accordingly , a strict formal application of LAW could not lead to a solution in his case .

On DATE the Ministry dismissed the applicant ’s appeal . It referred to the applicant ’s previous attempts to regularise his status in GPE , which had all been unsuccessful . According to the Ministry , this showed that he had not been erased from the relevant registers without being informed . ORG further stressed that the applicant had been invited several times to provide a valid travel document and he had promised to contact the embassy of GPE in this connection but had failed to do so . Accordingly , in the ORG ’s view , his arguments that he had not been a typical alien and that the relevant authorities had formalistically applied the relevant law had been misplaced . Moreover , there was a possibility for him to obtain a temporary travel document in order to travel to his country of origin so as to obtain a valid travel document .

On DATE the applicant challenged the ORG ’s decision before ORG . He contended that he had been a national of the SFRY and that he had had a registered residence in GPE since he had arrived there in DATE , which had been erased at a later stage . He also relied on his available birth certificate showing that he did not have any citizenship ( see paragraph CARDINAL below ) . He also reiterated his complaints of an unjustified infringement of his LAW by a decision of the administrative authorities and a breach of LAW No . CARDINAL . On DATE ORG dismissed the applicant ’s administrative action endorsing the reasoning of the ORG ’s decision . The applicant challenged these findings before ORG ( ORG upravni sud PERSON ) and the proceedings are still pending .

Meanwhile , on DATE the ORG police granted the applicant temporary residence status on humanitarian grounds for DATE inviting him to provide a valid travel document . The ORG police held that the applicant was a national of GPE whose parents had come from GPE to GPE and that they had had the status of refugees in the SFRY . It also stressed that ORG had given consent to the extension of the applicant ’s temporary residence irrespective of the fact that he had not provided a valid travel document .

On DATE the ORG police extended the applicant ’s residence status on humanitarian grounds for DATE . It referred to the same reasons as cited above .

According to the applicant ’s handwritten statement to his representative of DATE , he never had NORP citizenship . He explained that he had contacted the NORP embassy after he had been given an assurance that he had qualified for NORP citizenship but they had told him that he had not been a national of that ORG ( see paragraphs CARDINAL and DATE above ) . The applicant further stressed that in his contacts with the police concerning the regularisation of his residence status , the police officers had always suggested that he had been an NORP national . He also explained that he had been born in GPE and that his parents had had SFRY citizenship . He had come to GPE in DATE . He simply wanted to regularise his status in GPE .

According to a birth certificate issued by the GPE authorities on DATE , the applicant ’s parents had had GPE nationality but the applicant did not have that nationality .


Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in GPE .

The facts of the case , as submitted by the parties and as they appear from the documents submitted by them , may be summarised as follows .

At the time of the events giving rise to the application the applicant was serving as a chief police officer in GPE .

On DATE a woman named PERSON filed a criminal complaint with officers at LOC police station , alleging that she had been taken into a police car by CARDINAL officers on the pretext of her being a suspect . Afterwards , they had driven her around in the car and finally had taken her to an empty plot of land where she had been raped in the car by CARDINAL of the police officers . He had been wearing glasses and had held a police radio in his hand . She identified the vehicle ’s licence plate .

The applicant and the other police officer were immediately called into the police station for questioning as they had been assigned to the vehicle which had the licence plate identified by PERSON

In his statement to the police , made in the presence of his lawyer , the applicant said that he had picked up PERSON a.m. while he was patrolling with his colleague , ORG on FAC . He submitted that PERSON , who had looked intoxicated , had hailed them , stopped their car , and told them that she worked as a “ konsomatris ” , a bar hostess who entertains male guests by keeping them company . She had asked for their help to go to a safe place and the applicant had offered to take her to her home , which she had declined . According to the applicant they had also offered to take her to the police station , which she had also declined . Finally , they had taken her to ORG home with the intention of sobering her up . The applicant stated that when ORG was in the kitchen preparing something to eat , PERSON had started behaving strangely , taking off her clothes and acting in a sexually inviting manner . The applicant said that as a result of being aroused he had simply ejaculated in his own hand but had not touched her . He had then called ORG and told him that they had to leave immediately . The applicant stated that they had left PERSON in front of a hotel at TIME and had continued with their patrol until they had been called into the police station for questioning .

S.A. confirmed the applicant ’s version of events in his statement to the police on DATE .

NORP In an additional statement to the police , also made on DATE , PERSON told the police that she could not remember whether the police officers had taken her to an apartment or some other place as she had been very intoxicated .

A forensic medical examination of PERSON was carried out on DATE , showing that she had no bruises on her body .

A forensic expert report drafted on DATE stated that the underwear that the applicant had been wearing on the night in question had PERSON and his own DNA on it . Furthermore , napkins found in the rubbish bin on the balcony of ORG apartment had traces of the applicant ’s semen .

On DATE the GPE governor decided to authorise the prosecution of the applicant and GPE for alleged rape and abuse of authority . The applicant lodged an objection with ORG seeking annulment of the governor ’s decision , but it was dismissed .

On DATE the GPE public prosecutor filed an indictment with ORG , charging the applicant and GPE with abuse of public authority and the unlawful use of a public vehicle under LAW and LAW of the Law on Vehicles ( Law no . CARDINAL ) .

In her statement in the first - instance proceedings , PERSON said that she had flagged down a police car DATE to ask for help . As she had been intoxicated , she could not remember exactly what had happened later or which officer had raped her .

The chief public prosecutor submitted an opinion on the merits and stated that the applicant ’s conduct should be reclassified as rape and unlawful detention and that of ORG as having aided and abetted those acts . He therefore argued that the case should be referred to ORG , which has jurisdiction to hear such charges .

On DATE ORG ruled that it did not have jurisdiction to hear the case . It found that the offences committed by the applicant while performing his official duties were rape and the unlawful detention of an adult , which were governed , inter alia , by Articles CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of the former Criminal Code , and the unlawful use of a public vehicle , which came under section CARDINAL of Law no . CARDINAL . It stated that those offences had to be tried by assize courts and it therefore referred the case to ORG .

At a hearing held on DATE , ORG heard PERSON who , contrary to her previous statements , submitted that the officers had not raped her and had not taken her anywhere without her consent . She then submitted that she wished to withdraw her complaint .

On DATE ORG acquitted the applicant and ORG all charges , holding that there was no evidence of force on PERSON body , one of the constituent elements of the offences of rape and unlawful detention . The court further held that despite PERSON ’s statement of DATE , the forensic report of DATE had established that the applicant had had intercourse with her . In the absence of evidence that corroborated the fact of the applicant having forced himself on PERSON , it could not be established beyond doubt that the act of sexual intercourse itself had not been consensual . The court stated in that connection that even if PERSON had been drunk that night , her allegations of rape and of being held against her will needed to be supported by some sign of resistance . In the light of the conclusion that there had been no indication of a criminal offence committed by the police officers , the court then held that the applicant and ORG could not be deemed to have committed the separate offence of the unlawful use of a public vehicle . It therefore acquitted them of all the charges .

On DATE the acquittal became final as no appeals had been made .

In the aftermath of the events of DATE a preliminary disciplinary investigation was launched against the applicant and ORG DATE .

On DATE the applicant was questioned in relation to the allegations of rape against him . He submitted that he had not had sexual intercourse with PERSON He repeated his earlier statements that PERSON had seduced him to the point where he had had to ejaculate in his own hand . The applicant was also requested to submit a written defence statement . He wrote that he had taken PERSON into the police car with the intention of helping her and had not forced himself on her , as alleged by PERSON He pointed out that the forensic expert evidence had established that there had been no traces of violence , whether on PERSON ’s body or in the form of any other type of evidence , such as damage to property or blood stains at ORG apartment or inside the police car .

An investigation report dated DATE , prepared by the police investigator , concluded that the applicant had committed the offence of rape , while ORG was guilty of the offence of conduct unbecoming and incompatible with the civil service and therefore recommended that the applicant be sanctioned with a deferral of advancement to a higher rank for a period of DATE . The report further stated that a recommendation for a separate criminal investigation against the applicant and ORG had already been submitted to the governor ’s office for authorisation .

On DATE , ORG found the applicant guilty of abuse of his authority as a police officer and of sexually assaulting PERSON that the applicant ’s appraisal scores had only been average for DATE , and taking account of the shameful nature of the act he had committed , it found that the applicant could not be given a penalty that was less severe than the one decided on . The relevant parts of the decision read as follows :

“ ... the victim complained to the police and confirmed the event by giving the licence plate number of the vehicle and accurately describing the officer as wearing glasses and holding a police radio in his hand . The applicant , on the other hand , hid the facts by denying that he had had intercourse with PERSON [ D]espite the fact that the vaginal examination of the victim did not reveal the presence of any active or passive semen , the victim ’s statement that she was menstruating on TIME in question and the forensic evidence finding traces of both the applicant ’s and PERSON DNA on the applicant ’s underwear and the CARDINAL napkins found in ORG apartment containing the applicant ’s DNA , point to the conclusion that the applicant must have ejaculated prematurely before sexual intercourse . He has therefore committed the offence of ‘ sexual ORG and he furthermore used his position as a police officer by calling the victim a ‘ suspect’ in order to lure her into the police car ... Criminal proceedings are pending against the applicant on charges of abuse of authority under LAW .

... It has been decided unanimously to dismiss the accused from the police force , in accordance with section ORG ) and ( CARDINAL ) of LAW of the Security Forces on the grounds that it has been proven that he has committed the offence of sexual assault and of using his position as a police officer for personal ... advantage . ”

On an unspecified date the applicant objected to ORG decision before ORG . The applicant argued that his dismissal on the basis of a finding that he had committed sexual assault , although he had not been found guilty of that offence by a criminal court , had violated his right to the presumption of innocence .

On DATE ORG dismissed the applicant ’s case , holding that the decision to dismiss the applicant from the police force had been in accordance with the law . The relevant parts of the judgment read as follows :

“ Acts , conduct and behaviour of the kind listed in section ORG ) , ‘ ... rape , sexual assault , ... or attempting to commit any of those DATE and in LAW CARDINAL ( CARDINAL ) , ‘ using his position as a police officer for his own or another person ’s GPE , are sanctioned with dismissal from the police force .

After examination of the file , it appears that the case concerns the applicant ’s dismissal from the police force on the basis of a disciplinary investigation which established that he had intercourse with a woman without her consent on the pretext of calling her a suspect .. , by asking her to get into a police car so that he could verify her identity at the police station , although in the end he took her to a piece of empty land and had intercourse with her without her consent .

On the basis of the case file , statements , the forensic report and other information , the veracity of the accusation is reinforced and therefore the decision to dismiss the applicant is in accordance with the law . ”

On DATE ORG dismissed the applicant ’s appeal by a majority by endorsing the reasons provided by ORG . CARDINAL judge out of the CARDINAL expressed a dissenting opinion , reasoning that the applicant had been acquitted of the charges in the parallel criminal proceedings , including of rape , and that therefore the disciplinary decision to dismiss him from the police force on those grounds could no longer be upheld . The dissenting judge further argued that the courts should have reclassified the applicant ’s conduct as conduct that was incompatible with the reputation and trust inherent in the functions of an official and sanctioned him with the corresponding penalty of the deferral of moving to a higher rank for DATE .

On DATE the applicant submitted a request to rectify the decision of CARDINAL DATE , arguing in the main that the fact that he had been acquitted in the criminal proceedings and had been found innocent of the allegations of rape had not been taken into account in ORG decision . He further argued that the contradictory conclusions of the criminal and administrative courts in relation to what had happened on the night in question had cast doubt on his innocence .

ORG dismissed the applicant ’s request on DATE , holding that none of the reasons for rectification he had put forth fell within the exhaustive list of permissible grounds for such a decision in section CARDINAL ( CARDINAL ) of LAW ( Law no . CARDINAL ) .

In their observations the Government submitted that on DATE the applicant had brought proceedings against ORG and had requested that the reopening of the proceedings for his dismissal from the police force . The applicant relied on ORG final judgment of CARDINAL DATE , acquitting him of the charges of , inter alia , attempted rape and abuse of authority . He argued before ORG that the establishment of his innocence should be regarded as new grounds for reopening the dismissal proceedings . On CARDINAL DATE the applicant ’s request was dismissed . The ORG was not provided with a copy of that decision ; however , the Government provided a summary of parts of it , which was not contested by the applicant . According to the ORG , the administrative court held that “ the decision of ORG was available on the dates ORG examined the applicant ’s appellate review and request for rectification of the decision , and that accordingly the court in question made an assessment of the decision rendered by the ORG ” .

According to the information submitted by the ORG , the applicant did not appeal against that decision .