Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage)

Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in DATE and lives in PERSON .

In DATE the NORP law - enforcement authorities of the GPE of GPE conducted a monitoring exercise of users of the so - called “ NORP ” network . The NORP police established that some of the users owned and exchanged child pornography in the form of pictures or videos . Files containing illegal content were exchanged through the so - called “ NORP ” ( peer - to - peer ) file - sharing network in which each of the connected computers acted as both a client and a server . Hence , each user could access all files made available for sharing by other users of the network and download them for his or her use . Among the dynamic Internet Protocol ( “ IP ” ) addresses recorded by the NORP police was also a certain dynamic IP address , which was later linked to the applicant .

Based on the data obtained by the NORP police , on DATE the NORP police , without obtaining a court order , requested company S. , a NORP Internet service provider ( hereinafter “ the ORG ” ) , to disclose data regarding the user to whom the above - mentioned IP address had been assigned at TIME on DATE . The police based their request on section DATE ) of LAW ( hereinafter “ the CPA ” , see paragraph CARDINAL below ) , which required the operators of electronic communication networks to disclose to the police information on the owners or users of certain means of electronic communication whose details were not available in the relevant directory . In response , on DATE the ORG gave the police the name and address of the applicant ’s father , who was a subscriber to the Internet service relating to the respective IP address .

On DATE the police proposed that ORG request the investigating judge of ORG to issue an order demanding that the ORG disclose both the personal data of the subscriber and traffic data linked to the IP address in question . On DATE such a court order was obtained on the basis of section CARDINALb(CARDINAL ) of the CPA and the ORG gave the police the required data .

On DATE the investigating judge of ORG issued an order to carry out a house search of the applicant ’s family home . The order indicated the applicant ’s father as the suspect . During the house search the police and the investigating judge of the ORG seized CARDINAL computers and later made copies of their hard disks .

Based on a conversation with the applicant ’s family members , of which no record is available , the police changed the suspect to the applicant .

Reviewing the hard disks , the police found that CARDINAL of them contained files with pornographic material involving minors . The police established that the applicant had installed eMule , a file - sharing program , on CARDINAL of the computers by means of which he had been able to download different files from other users of the program and had also automatically offered and distributed his own files to them . Among the files downloaded by the applicant , a small percentage had contained child pornography .

On DATE the LOC prosecutor requested that a judicial investigation be opened against the applicant .

In his defence before the investigating judge , the applicant argued , inter alia , that he had not been aware of the content of the files in question . He also argued that the ORG had unlawfully , without a judicial warrant , passed his data , including his address , to the police .

On DATE the investigating judge of ORG , opened a judicial investigation against the applicant on the basis of a reasonable suspicion that he had committed the criminal offence of displaying , manufacturing , possessing and distributing pornographic material under section CARDINAL(CARDINAL ) of LAW . The judge noted , among other things , that the applicant ’s father had been the holder of the identified IP address and that the applicant had allegedly been logging into the respective program under the name of “ PERSON ” .

On DATE the applicant ’s counsel lodged an appeal against the decision to open a judicial investigation . He argued , inter alia , that the evidence concerning the identity of the user of the respective IP address had been obtained unlawfully . That information concerned the traffic data and should therefore not have been obtained without a judicial warrant .

On DATE an interlocutory panel of the court rejected the appeal finding that , although counsel had argued that the identity of the user of the IP address had been obtained unlawfully , he had not requested that certain documents be excluded from the file .

On DATE , ORG lodged an indictment against the applicant for the above - mentioned criminal offence .

At the hearing of DATE the applicant lodged a written request for exclusion of evidence obtained unlawfully , including the information concerning the user of the respective IP address obtained without a court order .

On DATE the court rejected the applicant ’s request , finding that the data concerning the user of the respective IP address had been obtained in compliance with section CARDINAL ) of the CPA .

On DATE ORG found the applicant guilty of the criminal offence with which he had been charged . Based on the opinion of an expert in computer science , ORG held that the applicant must have been aware of the CARDINAL pornographic pictures and CARDINAL videos involving minors which he had downloaded through ORG networks and made available for sharing with other users . The applicant was sentenced to a suspended prison term of DATE with a probation period of DATE .

Both the applicant and the district state prosecutor appealed against the first - instance judgment . The applicant challenged the facts as established by ORG . He also alleged that the subscriber information the NORP police had acquired without a court order , and thus unlawfully , should have been excluded as evidence . Consequently , all the evidence based on such unlawfully acquired data should also have been excluded .

On DATE ORG granted the appeal of the district state prosecutor in part , converting the applicant ’s suspended sentence into a prison term of DATE . The applicant ’s appeal was dismissed as unfounded . ORG confirmed that the first - instance court had correctly established the facts of the case ; moreover , it held that the data concerning the user of the IP address had been obtained lawfully , as no court order was required for such a purpose .

The applicant lodged an appeal on points of law before ORG , reiterating that a dynamic IP address could not be compared to a telephone number which was not entered in a telephone directory , as a new IP address was assigned to a computer each time the user logged on . Accordingly , such data should be considered as traffic data constituting circumstances and facts connected to the electronic communication and attracting the protection of privacy of communication . The applicant argued that the NORP police should not have obtained the respective dynamic IP address without a court order , and nor should the NORP police have obtained the data on the identity of the subscriber associated with the IP address without such an order .

On DATE ORG dismissed the applicant ’s appeal on points of law , reasoning that given the general accessibility of websites and the fact that the NORP police could check the exchanges in the NORP network simply by monitoring the users sharing certain contents , that is without any particular intervention in internet traffic , such communication could not be considered private and thus protected by LAW . Moreover , in ORG view , the NORP police had not acquired traffic data about the applicant ’s electronic communication , but only data regarding the user of a particular computer through which the Internet had been accessed .

The applicant lodged a constitutional complaint before ORG , reiterating the complaints adduced before the lower courts .

ORG asked the Information Commissioner to express her position on the issue . The Information Commissioner was of the view that the reason for obtaining the identity of an individual user of electronic communication was precisely that he or she communicated by means of more or less publicly accessible websites . In the Information Commissioner ’s view , it was impossible to separate traffic data from subscriber data , as traffic data alone did not make any sense if one did not ascertain who the person behind those data was DATE this latter information was thus considered to be an extremely important element of communication privacy . The Information Commissioner also highlighted that the provisions of LAW in force at the material time required a court order regarding all data related to electronic communications , irrespective of whether they related to traffic or identification data . In the Information Commissioner ’s view , section CARDINALb ( CARDINAL ) of the CPA , which required only a written request from the police to obtain data on who was communicating , was constitutionally problematic .

On DATE ORG dismissed the applicant ’s complaint , holding that his constitutional rights had not been violated . ORG decision was adopted by CARDINAL votes to CARDINAL . Judge PERSON and Judge PERSON wrote dissenting opinions . The decision was served on the applicant on DATE .

The Constitutional Court pointed out , at the outset , that in addition to the content of communications , LAW also protected traffic data , that is any data processed for the transmission of communications in an electronic communications network . It considered that IP addresses were included in such traffic data . ORG , however , concluded that the applicant , who had not hidden in any way the IP address through which he had accessed the Internet , had consciously exposed himself to the public and could not legitimately have expected privacy . As a result , the data concerning the identity of the user of the IP address were not protected as communication privacy under LAW , but only as information privacy under LAW , and no court order was required in order to disclose them in the applicant ’s case .

The most relevant parts of ORG decision are as follows ( as translated into LANGUAGE on ORG website ) :

“ Review of the objections regarding access to the complainant ’s IP address by the NORP police

The second paragraph of LAW provides a higher level of protection than LAW ORG as it requires a court order for any interference with the right to communication privacy ... The right to communication privacy determined by the first paragraph of LAW primarily protects the content of the communicated message . ... In addition to the message content , the circumstances and facts related to the communication are also protected . In accordance with this view , in Decision No . Up-CARDINAL/CARDINAL , dated DATE ( ORG , No . CARDINAL , and QUANTITY , CARDINAL ) ORG extended the protection provided by LAW also to such data regarding telephone calls that by their nature constitute an integral part of communication so that such data can not be obtained without a court order . The mentioned Decision refers otherwise to telephone communication , but the same conclusion can be applied mutatis mutandis to other types of communication at a distance . The crucial constitutional review test for the review of ORG whether a particular communication is protected under LAW is the test of the legitimate expectation of privacy .

Communication via the internet takes place , in principle , in an anonymous form , which is essential for the free development of personality , freedom of speech , and the expression of ideas , and , consequently , for the development of a free and democratic society . The privacy of communication protected by the strict conditions determined by the second paragraph of LAW is therefore a very important human right that is becoming increasingly important due to technological advances and the related growing possibilities of monitoring . It entails ORG legitimate expectation that the state will leave them alone also in their communication through modern communication channels and that they do not necessary have to defend themselves for what they do , say , write or think . If there is a suspicion of a criminal offense the Police must have the ability to identify the individuals who have participated in a certain communication related to an alleged criminal offense , because the perpetrators are harder to trace due to this principle of anonymity on the internet . The conditions under which the Police can carry out investigative actions and whether they need a court order , however , depend on whether such entail an interference with the right to communication privacy .

As was pointed out above , in addition to the content of communications , LAW also protects traffic data . Traffic data signifies any data processed for the transmission of communications in an electronic communications network or for the billing thereof . Such entails that the IP address is a traffic datum . ORG must therefore answer the question whether the complainant legitimately expected privacy regarding this datum .

CARDINAL factors must be weighed in relation to this review : the expectation of privacy regarding the IP address and the legitimacy of this expectation , where the latter must be of such nature that the society is willing to accept it as legitimate . The complainant in the case at issue communicated with other users of the FAC network by using the eMule application to exchange various files , including those that contained child pornography . With regard to the general anonymity of internet users and also the content of the files , ORG has no doubt that the complainant expected that his communications would remain private , and he also certainly expected that his identity would not be disclosed . The question therefore is whether such expectation of privacy was legitimate . The complainant has not established that the IP address through which he accessed the internet was hidden in any way , and thus invisible to other users , or that access to the FAC network ( and thus to the content of the files ) was in any way restricted , for example by passwords or other means . ... In contrast , in the complainant ’s case anyone interested in exchanging such data could have accessed the contested files , and the complainant has not demonstrated that his IP address was in any way concealed or inaccessible by other users of this network . This leads to the conclusion that this entailed an open line of communication with a previously undetermined circle of strangers using the internet worldwide who have shown interest in sharing certain files , while at the same time access to the IP addresses of other users was not limited to users of this network . Therefore , in the view of ORG , the complainant ’s expectation of privacy was not legitimate ; that which a person knowingly exposes to the public , even if from a home computer and the shelter of his or her own home , can not be a subject of the protection afforded by LAW . In view of the foregoing , the contested standpoint of ORG does not raise concerns regarding constitutional law . Obtaining the data regarding the complainant’

Review of the objections regarding access to data on the user of a certain IP address

The complainant also challenges the standpoint of ORG that by its request to the service provider under the third paragraph of Article CARDINAL of the CPA the Police did not acquire traffic data , but only data regarding a particular user of a determined means of communication ...

In the case at issue , on DATE , on the basis of the third paragraph of Article CARDINAL of the CPA , the Police sent a request to the service provider for data regarding the user to whom IP address CARDINAL.CARDINAL.CARDINAL.CARDINAL was assigned on DATE at CARDINAL . In the response , they received data regarding the user ’s name , surname , and address , while the time of the communication set to the nearest second was already known . Then on DATE the ORG also obtained an order issued by the investigating judge on the basis of the first paragraph CARDINAL of the CPA and the service provider also provided the traffic data on the basis of this order . The main issue for ORG at this point is therefore whether obtaining the data regarding the identity of the user of a determined IP address falls within the framework of communication privacy .

In accordance with the position of ORG . Up-CARDINAL/CARDINAL , LAW also protects traffic data , i.e. data regarding , for example , who , when , with whom , and how often someone communicated . The identity of the communicating individual is one of the important aspects of communication privacy , therefore it is necessary to obtain a court order for its disclosure in accordance with the second paragraph of LAW . Despite this standpoint , ORG decided that the complainant ’s allegation of a violation of LAW is unfounded in the case at issue . By his conduct , the complainant has himself waived protection of his privacy by publicly revealing both his own IP address as well as the content of his communications , and therefore can no longer rely on it as regards the disclosure of his identity . Since by such he also waived the legitimate expectation of privacy , the data regarding the identity of the IP address user no longer enjoyed protection in terms of communication privacy , but only in terms of information privacy determined by LAW . Therefore , by obtaining the data on the name , surname , and address of the user of the dynamic IP address through which the complainant communicated the Police did not interfere with his communication privacy and therefore did not require a court order to disclose his identity . In view of the foregoing , the contested position of ORG is not inconsistent with LAW , and the complainant ’s complaints in this part are unfounded . ”

Judge PERSON welcomed ORG departure from ORG view that the information concerned had not amounted to traffic data . However , in her view , the police wishing to obtain identification of the subscriber should have requested a court order . She pointed out that ORG conclusion implied that the protection of privacy of traffic data was always dependent on the protection of the content of communication . Accordingly , traffic data concerning certain communication were protected as long as the content of that communication was protected . Consequently , an individual could not enjoy separate and independent protection of traffic data . Judge PERSON disagreed with this view , pointing out that the applicant had not appeared in public under his own name , but only through the digits of his dynamic IP address .

Judge PERSON agreed with the Information Commissioner that the police had been interested not in the ownership of the device but in “ the identity of the person communicating and precisely because he had been communicating ” . She endorsed the Commissioner ’s view that “ the content of communication alone did not have any particular weight in the absence of identification of those communicating ” . She also pointed out that under sections CARDINAL and CARDINAL of the new LAW ( “ ECA-CARDINAL ” , see paragraph CARDINAL below ) , the Internet provider was not allowed to transfer the stored information without a court order . Compared with section CARDINALb(CARDINAL ) of the CPA , the ECA was definitely more recent and therefore the decision of the majority ran contrary to the level of rights protection already achieved .

Judge PERSON argued that the constitutional guarantees set out in LAW were aimed at strengthening the expectation of privacy in this area of life and preventing disproportionate interferences and an abuse of power by the executive .

As regards the applicant ’s expectation of online anonymity , Judge PERSON argued that none of the data publicly disclosed by the complainant revealed his identity . In her view , anonymity was what prevented the police from linking a particular communication with a particular person – that is , linking a dynamic IP address and an individual with his or her name and address . She further argued that the question whether the applicant ’s manner of communication could lead to the conclusion that his expectation of privacy had not been objectively justified had to be approached by taking all the circumstances into account , including the law that had been in force at the relevant time . She explained that the LAW ( sections CARDINAL ) ) , CARDINAL ) and DATE see paragraphs CARDINAL below ) required Internet providers to delete traffic data as soon as they were no longer needed for the transfer of messages . Moreover , section CARDINAL of the ORG provided that the secrecy of communication could be interfered with only on the basis of a decision by a competent authority . A letter from the police to an Internet provider could not be considered to amount to such a decision . Thus , even if section CARDINALb(CARDINAL ) of the CPA could be interpreted as allowing the police to ask for information on an Internet subscriber , it should not apply in the situations covered by the LAW , which explicitly concerned the “ protection of secrecy and confidentiality of electronic communications ” . Otherwise , the legislation would be contradictory . The judge concluded that the applicable legal framework could not therefore have led to the conclusion that the applicant , as a reasonably and sufficiently informed individual , could not have expected privacy ; that is , he could not have expected that his anonymity would be protected .

Judge PERSON went on to elaborate on the neutrality of traffic data , such as data on the user of a certain dynamic IP address :

“ CARDINAL . The traffic datum – the dynamic IP address that was assigned randomly at a given moment – as I understand it , reveals how the internet was used on some computer , because it is inextricably attached to a specific connection . ... This is because only the CARDINAL data jointly communicate how the internet was used in a non - anonymised way , i.e. regarding internet use in connection with an identified person . This essential circumstance in my opinion negates the notion of the neutrality of the datum regarding a specific user of services for a certain ( known ) dynamic IP address that the police sought through the service provider - namely , the neutrality of the datum in terms of denying its ability to communicate anything more than the name and address of a certain person ( who has a subscription contract with the service provider ) . Precisely because this datum is inseparably linked to a specific communication , the traffic datum falls within the scope of protected communication privacy .

Even if the service provider communicated to the police ‘ only’ the data identifying a person who had a subscription contract with it , by doing so , as I understand it , the service provider in fact communicated ( to put it simply ) traffic data in an electronic communications network regarding this person . The police also , as I have already explained , wanted to determine more than just the name and surname of a certain person who had concluded a contract . Since , as I understand it , they asked for traffic data associated with a particular person they would have to proceed according to the first paragraph of Article CARDINAL of the CPA and obtain an order from the investigating judge . ”


Remainder inadmissible (Article 35-1 - Six month period;Article 35-3 - Manifestly ill-founded);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE .

The applicant was chairperson of ORG of GPE ( “ the ORG ” ) DATE and DATE , when he resigned . The ORG has legal personality under public law .

By a judgment dated DATE , delivered in the case of ORG v. ORG and ORG , ORG declared that it was unconstitutional to use the legal term “ DATE regulation fee for transport activities ” ( რეგულირების საფასური ) , which appeared in various relevant legal acts LAW of DATE on the Rules of ORG ( “ the LAW ” ) , and the Orders of DATE , ORG . CARDINAL and CARDINAL , of the Minister for ORG ( see paragraphs DATE below ) .

The Constitutional Court considered that the aforementioned “ DATE regulation fee for transport activities ” , which was a compulsory payment provided for in section CARDINAL(CARDINAL ) of LAW , was strictly speaking neither a tax nor a levy . However , LAW only recognised the latter CARDINAL kinds of compulsory payment to the ORG . Furthermore , unlike taxes and levies , the regulation fee was not paid into the ORG ’s coffers or to a local authority , but directly to the ORG . ORG considered that in those circumstances the fee amounted to a special form of tax , which was a compulsory payment and which had the features of both a traditional levy ( payable in exchange for a service or the granting of a right ) and of a tax ( payable on the DATE income of the body concerned ) .

The defendant authorities – ORG and ORG argued before ORG that there was a need for some kind of compulsory regulation fee for transport activities because it was not possible for the ORG to sign contracts with civil aviation companies . ORG dismissed that argument , pointing out that the regulation of transport activities meant the provision of a service by a public authority in exchange for the payment of a fee for that service . Such relationships could only arise within the framework of a mutual contract , freely entered into by the parties concerned . A fee received by a public authority for a service should therefore take the form of income received for work carried out on a contractual basis , in accordance with section CARDINAL(d ) of LAW .

The Constitutional Court further observed that the claimant , a private airline , would obviously never be able to carry out its business without the transport service provided by the ORG . However , regard being had to the principle of the freedom to choose services , even an undeniably necessary service should be the subject of a free agreement between the parties . ORG thus concluded that if the matter at issue were settled in that way , then future situations in which the payment of considerable amounts imposed unilaterally by a public authority , in total disregard of the opinions of the companies concerned , would be avoided . ORG emphasised that not even constitutional provisions could prevent a public authority in charge of the regulation of civil aviation from signing a contract with a private entity which included conditions and rules for services to be provided under that contract .

The Constitutional Court ruled that its judgment of DATE would become effective on DATE .

On DATE criminal proceedings were instituted for abuse of power against unnamed officers of ORG , the ORG and CARDINAL ORG - owned civil aviation companies . That decision was taken on the basis of information provided by “ an investigative journalism organisation carrying out research into corruption ” .

On DATE a charge of repeated abuse of power was brought against the applicant himself , under LAW and CARDINAL ( a ) of LAW , by ORG ( “ the PERSON ” ) . He was accused in particular of having entered into civil contracts in his capacity as chairperson of the ORG on DATE and CARDINAL DATE with CARDINAL civil aviation companies – GPE , FAC and ORG - GPE DATE which undertook to pay the ORG on a DATE basis a “ fee for services rendered in relation to the regulation of activities ” ( მომსახურების საფასური ) . Accordingly , DATE the ORG received CARDINAL NORP laris ( GEL ) ( CARDINAL euros ( ORG ) ) . According to the investigator , the applicant ’s actions in using the words “ fee for services rendered in relation to the regulation of activities ” ( hereinafter “ fee for services ” ) had concealed what had actually in fact amounted to the old “ DATE regulation fee for transport activities ” , a legal term and obligation which had become unconstitutional after DATE , when the ORG judgment of DATE had entered into force ( see paragraph CARDINAL above ) .

The applicant was further accused of having issued Order no . CARDINAL of CARDINAL DATE , and of applying it retroactively , again in breach of ORG judgment of DATE ( see paragraph CARDINAL below ) . The order had allowed the ORG to charge GPE and FAC the sum of GEL CARDINAL ( about EUR CARDINAL,CARDINAL ) DATE and DATE in respect of the regulation fee .

Thus , by having wilfully circumvented the legal effects of ORG judgment of DATE , the applicant “ had acted unlawfully and had therefore committed an abuse of power ” .

The applicant was arrested on DATE . He was charged on DATE but pleaded not guilty .

On DATE the Krtsanisi - Mtatsminda District Court of First Instance in GPE ( “ LOC ” ) , allowing an application by the PERSON , ordered the applicant ’s detention for DATE , pending investigation and trial .

By a final decision of DATE , ORG dismissed an appeal by the applicant as inadmissible and upheld the detention order of DATE .

On DATE the NORP ORG , after hearing both parties’ arguments , allowed an application by the PERSON to extend the applicant ’s pre - trial detention until DATE . No appeal lay against that decision , and it was therefore final .

On DATE an accountancy expert from the crime detection department of ORG , whose services had been solicited by the PERSON as part of the investigation of the applicant ’s case , drew up an audit of the ORG ’s regulatory activities ( “ the audit report of DATE ” ) . Firstly , the expert listed the acts which constituted the legal basis for the activities of the ORG and which were in force before and after DATE , when ORG judgment of DATE had entered into force . He then distinguished CARDINAL periods of activity : ( i ) the period DATE and DATE , corresponding to the imposition of “ the DATE regulation fee for transport activities ” by the ORG on the civil aviation companies concerned ; ( ii ) the period DATE and DATE , corresponding to the regulation by the ORG of the activities of the companies in question in accordance with conditions negotiated as part of the contracts it entered into ; and ( iii ) the period DATE and DATE , when the ORG had collected regulation fees on the basis of Order no . CARDINAL , which had been issued by its chairperson , the applicant , on DATE .

The expert noted that the adoption of ORG judgment of DATE had led to “ the suppression of the imposition by the ORG , in the form of an order , of the ‘ DATE regulation fee for transport GPE on companies operating within civil aviation and the removal of the compulsory nature of the payment of that fee ” . However , “ the judgment in question had not declared that it was unlawful for the ORG to provide its services to the companies concerned on the basis of negotiated contracts ” . According to the expert , the judgment indicated , on the contrary , that there was a “ need for such contracts and a legal settlement of the issue in this way ” . The expert assumed that the applicant had taken the latter route , “ which had been suggested to him by the LAW ” . That had brought him to sign the impugned contracts with GPE and FAC on DATE , that is to say , DATE before the entry into force of the judgment in question . On DATE the applicant had signed the same kind of contract with ORG - GPE . In each case , the ORG ’s remuneration had been calculated on a DATE basis and was referred to as a fee for services provided in the field of regulation . The CARDINAL contracts had been terminated on DATE .

As regarded Order no . CARDINAL , which had been issued by the applicant on DATE , the expert noted that the order , approved for entry into force by ORG on DATE , had been able to be applied retrospectively , that is as of DATE , which was the date of the termination of the CARDINAL above - mentioned contracts . He said the order showed good conduct in the financial activities relating to the functioning of civil aviation in the country which , by its very nature , had to be a continuous process .

After examining the available evidence , the expert concluded that the ORG ’s charging of the fees for the CARDINAL above - mentioned periods of activity “ was based on the relevant laws and regulatory acts ” . He established , moreover , that the regulation fee at that time constituted the sole source of revenue for the ORG , a public - law entity not financed by the ORG . Had it not charged those amounts , the ORG would have been obliged to continue functioning without , though , paying its employees’ salaries . The expert reiterated that the regulation fee paid to the ORG by the companies concerned was included in the price for the service that those companies offered to individuals ( air travel tickets ) or other companies ( carriage of goods ) . Payment of the fee to the ORG did not therefore cause them any financial damage and , even if there had nevertheless been a loss , it would in the end have been passed on to the consumer .

Generally , the expert established that the ORG had received , DATE and DATE , GEL CARDINAL ( MONEY ( ORG ) ) in fees for the regulatory services provided under the CARDINAL impugned contracts with FAC , Air - BP - Georgia and GPE , and GEL CARDINAL ( some EUR CARDINAL ) by way of the fee collected on the basis of Order no . CARDINAL . In any event , the expert emphasised that the charging of those sums by the ORG to the various private companies had been continuous in time and had been based on valid legal acts ( either statutes or other legal instruments ) . Out of all the abovementioned amounts received by the ORG DATE and DATE , the applicant had made a personal profit of GEL CARDINAL and CARDINAL ( some ORG CARDINAL,CARDINAL and CARDINAL ) by way of , respectively , the salary and business trips allowances he had received over the same period of time . A further GEL CARDINAL,CARDINAL.CARDINAL ( some EUR CARDINAL ) had been paid to ORG in income tax and social security charges , while the remaining funds had been spent on the salaries of other ORG employees and various business trips and management expenses .

On DATE the preliminary investigation was terminated and a bill of indictment was served on the applicant . According to the bill , DATE and DATE the ORG had carried out CARDINAL unlawful activities : ( i ) firstly , it had received , in breach of the judgment of ORG of DATE , a regulation fee from CARDINAL civil aviation companies ; ( ii ) secondly , CARDINAL companies had paid the ORG the same regulation fee on the basis of Order no . CARDINAL , issued by the applicant ; ( iii ) and , thirdly , the CARDINAL companies – GPE ( a government - owned undertaking ) , FAC and AirBPGeorgia DATE had paid the fee for services to the ORG on the basis of contracts concluded by the applicant . The pecuniary damage thus incurred by the companies concerned amounted to GEL CARDINAL , of which GEL CARDINAL,CARDINAL.CARDINAL ( some EUR CARDINAL ) was caused to GPE . The applicant had used the amounts received to pay salaries and expenses for the management and business trips .

On DATE the applicant challenged the indictment before the investigator of ORG handling the case , arguing that the evidence that had been gathered did not support the charges . In particular , the investigation authorities had not explained how , within the meaning of LAW , the acts committed had damaged the “ interests of the civil service ” ; what unlawful “ personal profit ” he had derived ; what unlawful personal profit had been derived by third parties and who those people actually were ; which of the rights of the companies concerned had been breached by his action ; what legal interests of the ORG had been disregarded ; and in what way that “ disregard ” had been “ substantial ” ( see LAW , at paragraph MONEY below ) . He again pointed out that the judgment of ORG at issue authorised the ORG to continue to charge the fee for services , provided that the payment was based on negotiated contracts and not imposed , as hitherto . Contrary to the argument put forward by the investigator , the companies concerned could not be deemed to have incurred any substantial losses simply by having fulfilled contractual obligations which had been freely negotiated with the ORG . Moreover , those companies had never complained of the unlawfulness of the contracts in question . Lastly , the applicant argued that “ none of the ORG ’s legal interests ” had been disregarded , given that the ORG could not claim to be a victim of contractual relationships CARDINAL entities which were independent of it .

On DATE the investigator rejected that complaint as illfounded . He pointed out that the indictment of CARDINAL DATE had been based on evidence gathered during the investigation , and that such evidence was sufficient to dispel any doubts that the applicant had committed the offence provided for in LAW ( a ) of LAW . In particular , the investigator pointed out that everyone had to comply with the judgment of ORG DATE , which had the force of law , but which the applicant had failed to do . After DATE , the date of entry into force of that judgment , the applicant had continued to charge the regulation fee , referring to it as a “ fee for services provided in the field of the regulation of activities ” in order to conceal the nature of the activity . ORG had considered , however , that revenues gained by the ORG in the form of a regulation fee were unconstitutional . The applicant and his employees had derived a personal profit from the amounts at issue in the form of salaries , and management and business trip fees . For example , the applicant had received total salary of GEL CARDINAL ( some EUR CARDINAL ) . According to the investigator , even if most of the companies concerned had declared that they had not incurred any loss from the applicant ’s activities , the charging by the ORG of the disguised regulation fee in breach of the judgment of ORG had damaged the legal interests of the ORG . Furthermore , by giving retrospective effect to Order no . CARDINAL , registered by ORG on DATE , the applicant had jeopardised the well - being of the companies concerned .

On DATE the applicant lodged an appeal against that decision with ORG . He stated that the investigator had failed properly to the arguments made in his complaint of DATE ( see paragraph CARDINAL above ) .

On DATE a prosecutor from ORG replied to the applicant , stating that his appeal had been rejected because the decision of DATE had properly and exhaustively addressed all his claims .

On DATE the indictment was approved by a deputy chief prosecutor and the case sent for trial before the NORP - Saburtalo ORG of First Instance in GPE ( “ the NORP - Saburtalo Court ” ) .

On DATE the applicant applied to the Vake - Saburtalo Court , claiming that he had been unlawfully detained since DATE . In particular , the period of his pre - trial detention had expired on that date and had not been extended . He asked that he be released immediately .

On DATE the ORG held a pre - trial conference hearing in the case , ruling to commit the applicant for trial as a defendant ( Article CARDINAL § § CARDINAL of the ORG ) . Without replying to the applicant ’s complaint of DATE of the unlawfulness of his pre - trial detention , the court upheld the restraint measure on the basis of the “ nature of the charges ” and the inability to conduct a comprehensive judicial assessment of his arguments for release at the admissibility stage .

On an unspecified date , subsequent to a reform of the judicial system and the associated liquidation of the Vake - Saburtalo ORG , the applicant ’s case was assigned for trial to the newly created ORG .

When questioned by ORG during the trial , the acting director and the chief accountant of GPE confirmed that their company had paid the relevant fee to the ORG even after ORG judgment of DATE , either on the basis of a contract or on the basis of Order no . CARDINAL . They did not know at the time that they were exempted from paying the fee by ORG ruling .

The managers of FAC and Air - BP - Georgia , which specialised in fuel distribution , confirmed to the trial court that their companies had paid the amounts at issue pursuant to contracts that they had freely entered into with the ORG . They specified that in exchange for the fee the ORG licensed their ORG activities , and that without such certification it would have been impossible for FAC to host international flights .

When questioned by the trial court , PERSON . PERSON , the first deputy chairperson of the ORG , explained that at the material time , a new law , which should have been passed following the judgment of ORG of DATE , had been delayed and that , if the applicant had not decided to enter into contracts with companies whose activities were subject to regulation , the ORG , which received no funding from the ORG , would have had to cease operations . That would have meant that employees of NORP airports would no longer have been certified , that no aircraft would have been able to land at those airports and that no country would have allowed aircraft that had taken off from those airports onto its territory . By way of an example , PERSON , the airline behind the request which had resulted in the judgment of ORG DATE , leased its aircraft in GPE on the condition that the ORG , under an agreement entered into with the NORP civil aviation authority , assumed responsibility for supervising those aircraft and regulating the corresponding activities . If the ORG were to cease operations , GPE would no longer lease its aircraft to PERSON . It was to prevent any such blockages in the field of civil aviation in GPE that the applicant had entered into the contracts , in accordance with LAW and the judgment of ORG at issue .

The second deputy chairperson of the ORG told the court that he had personally worked on drafting contracts which were subsequently entered into with the CARDINAL civil aviation companies . He maintained that those contracts , which had become the only source of funding for the ORG , had become necessary after ORG had invalidated the relevant legal provisions by declaring them unconstitutional .

The ORG ’s accountant explained before the trial court that on DATE the ORG had been split from ORG , on the recommendation of ORG , and that it had become legally fully independent . The exercise of public duties had been delegated to it , including the supervision of flight safety . Since DATE , the ORG had not been funded from the ORG budget , and had therefore been obliged to collect duties from the various private companies working in civil aviation . However , since the relevant legal provisions regulating the collection of “ the DATE collection fee for transport activities ” had been declared invalid by ORG , the ORG , pending the passing by ORG of new legislation on the matter , had been forced to make contracts with civil aviation companies . Subsequently , after the amendment of LAW on DATE ( see paragraphs DATE below ) , the chairperson of the ORG , the applicant , had become entitled to issue orders setting the amount of fees payable by the companies .

When questioned by the trial court , the representatives of various other private companies working in civil aviation , who were contractors of the ORG , stated that prior to DATE , they had paid the regulation fee in accordance with the law . Following the judgment of ORG of DATE , they had stopped doing so and had only resumed payments on DATE , as a result of Order no . CARDINAL , issued by the applicant .

When questioned by the trial court , the accountancy expert from ORG who had authored the audit report on the ORG ’s activities confirmed the conclusions in the report relating to the legality of the ORG ’s transactions DATE and DATE .

In his submissions before the court , the applicant first reiterated the arguments he had made during the investigation , notably in his complaint of DATE ( see paragraph CARDINAL above ) . The applicant then argued that of the amounts which he had been unjustifiably accused of charging unlawfully , he had paid GEL CARDINAL ( some EUR CARDINAL ) to the ORG , while the remainder had been used to fund the ORG ’s operations ( see the aforementioned expert report cited at paragraphs CARDINAL - CARDINAL above ) . Consequently , neither he nor anyone else had derived any personal profit from the amounts in question . The applicant argued that the accountancy expert ’s report confirmed the legality of his actions . He explained that the reason ORG had delayed the entry into force of its judgment of DATE had been to grant ORG sufficient time to legislate and fill the gap arising from its judgment . In order not to leave the ORG without funds , which would have meant flight safety might have been compromised , ORG had clearly indicated in its judgment that the ORG could enter into contractual relationships with the aviation companies concerned , which would thus be able to negotiate conditions freely .

It was for the very same reasons as those espoused by ORG in its judgment that the NORP President had issued Decree no . CARDINAL on DATE ( see paragraph CARDINAL below ) . That decree , as well as section CARDINAL(d ) of LAW , gave a direct right to the applicant , as chairperson of the ORG , to collect duties by entering into contractual relations with companies working in civil aviation . Furthermore , the new law , required as a result of the judgment of ORG of DATE , had been passed on DATE and had entered into force on DATE . The applicant had issued Order no . CARDINAL in compliance with that law and had subsequently submitted it to ORG for registration . ORG had registered it on DATE , approving its retrospective application as of CARDINAL DATE under sections CARDINAL(CARDINAL ) and DATE of ORG , on the grounds that all the companies covered by the Order had the necessary legal identification numbers and codes . The applicant pointed out that if it had been unlawful to apply the order at issue retrospectively , ORG would have informed the ORG and instructed it to make the necessary amendments , in accordance with the law . The applicant concluded that the actions he had taken in the exercise of his official duties had not been contrary to the judgment of ORG in question , or to any other legal provisions applicable at the material time , and thus could not qualify as abuse of power .

On DATE the ORG found the applicant guilty of CARDINAL of the CARDINAL episodes of abuse of power which the ORG had accused him of ( see paragraph CARDINAL above ) , but acquitted him of CARDINAL . The CARDINAL he was acquitted of was with respect to the ORG collecting “ an DATE registration fee for transport activities ” from CARDINAL private companies working in civil aviation , including GPE and FAC , DATE and DATE . The court established that the relevant amounts corresponded to debts owed to the ORG by those companies for the period prior to DATE .

As for the other CARDINAL episodes , ORG considered that the applicant had unlawfully entered into the contracts of CARDINAL March and CARDINAL DATE with GPE , FAC and AirBPGeorgia , in breach of ORG judgment of DATE . Thus , DATE and DATE , the ORG had unlawfully received the sums of GEL CARDINAL ( some ORG CARDINAL ) , CARDINAL ( around EUR CARDINAL ) and CARDINAL ( some EUR CARDINAL ) respectively , from which the applicant had unlawfully paid his own salary and the salaries of his employees , and had financed the ORG ’s business trip and management expenses . Furthermore , the applicant was found guilty of unlawfully issuing Order no . CARDINAL , to which the applicant had moreover given retrospective effect , which served as the basis for collecting levies DATE and DATE from CARDINAL companies , amounting to GEL CARDINAL,CARDINAL.CARDINAL ( some EUR CARDINAL ) which had been spent in the same , unlawful way .

The Tbilisi City Court stated that it disagreed with the applicant ’s argument that the Constitutional Court judgment of DATE had given him the right to enter into contracts with the companies concerned and that the ORG would have been unable to continue to operate if those contracts not been entered into . However , the court did not give any reasons to explain its position .

As to the audit report prepared by the accountancy expert on the ORG ’s activities , the ORG restricted itself to noting that the expert in question was from ORG and that he had confirmed his conclusions when he had been questioned during the trial . The court gave no explanation for why it did not take the expert ’s statements into consideration .

The judgment of CARDINAL DATE found the applicant guilty of the crime provided for in LAW ( a ) of LAW and sentenced him to DATE imprisonment . He was also banned from holding public office for DATE .

The applicant appealed , stating that ORG had not established which of the impugned actions had breached the notion of public service requirements , within the meaning of LAW , what exactly the criminal offence had consisted of , what had been the reasons for it , and what its objectives and consequences had been . Furthermore , ORG had not explained how his actions had damaged the interests of CARDINAL companies , when none of those companies had expressed any interest in joining the criminal proceedings as civil parties or had ever initiated any separate civil proceedings against the ORG .

When questioned by ORG , representatives of CARDINAL of the companies concerned stated that they had incurred no financial damage as a result of having paid the fees for the services provided by the ORG , either on the basis of the relevant contracts or Order no . CARDINAL . Moreover , the cost of the amounts paid had not been borne by the companies , since it had been included in the price of airplane tickets sold to the end consumer , who was airline passengers ( see also the accountancy expert ’s report cited at paragraphs CARDINAL - CARDINAL above ) . By a judgment of DATE ORG acquitted the applicant in respect of the charge relating to the aforementioned CARDINAL companies . It upheld the judgment of the lower court as to the remaining charges , notably the collection by the ORG of fees for services from the remaining CARDINAL companies on the basis of either contracts or Order no . CARDINAL . The applicant ’s prison sentence was amended and set at DATE .

The applicant appealed on points of law , arguing that his case had been examined superficially and that , amongst other things , the accountancy expert ’s report of DATE ( see paragraphs CARDINAL - CARDINAL above ) had not been taken into consideration . The applicant complained that in examining the question of the existence of a loss to the aforementioned CARDINAL companies , ORG had failed to consider the case from the same point of view concerning the other companies , especially GPE , which had allegedly incurred the biggest loss . In fact , according to the applicant , ORG had completely failed to consider that part of the case or the accountancy expert ’s view that GPE could not have incurred a loss . The applicant concluded that the reasoning given by the lower court to prove his guilt had been manifestly insufficient and arbitrary .

On DATE ORG of GPE dismissed the appeal on points of law by the applicant , stating that by continuing to charge the fees to the various private companies after DATE the applicant had misapplied the judgment of ORG of DATE and had thus committed an abuse of power , infringing the rights of various legal entities and the general legal interests of the ORG .

After serving his sentence in full , the applicant was released on DATE .

NORP In DATE , well before the applicant had been placed under investigation and arrested , and shortly after the Rose Revolution that led to the resignation of President PERSON ( see ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , ECHR DATE ) , Mr PERSON , who did not hold any State office at the time but was campaigning as a candidate to be elected president , addressed representatives of NORP companies in GPE ’s sports stadium . He stated that the objectives of the abolition of the old , corrupt and unfair regime had not involved simply replacing CARDINAL political clan with another . In particular , he promised that nepotism , irrespective of where it came from , whether from representatives of the old or the new regime , would no longer be the rule . Amongst other things , he stated in that regard :

“ I heard more news on the television DATE : it would appear that NORP Ts ... , the chairman of a committee of the former parliament , took his son and had him appointed deputy chairman of ORG ! It is now CARDINAL . I will give [ the applicant ] : either he gets rid of Ts ... , or [ the applicant ] himself goes to jail ! ... It is said that we are instructing the prosecution authorities to arrest officials of the old regime but that this seems like a breach of their human rights ! Yes , I confirm , all those who should be arrested will be jailed . They only began to remember human rights when their own interests were threatened ... Where does the money come from [ for a former governor ] to hire lawyers to defend himself and ... live in a fivestar hotel in GPE , when TIME there costs the same as your pensions several times over ... ? Is not your money , GPE ’s money , being taken from your pockets ? ... “

According to the applicant , the events which came after the speech of Mr PERSON , who was elected President of GPE in DATE , were as follows : the son of PERSON . immediately resigned as deputy chairman of the ORG , the applicant was placed under investigation in DATE on the aforementioned charges and the same PERSON . was reelected to parliament from Mr PERSON ’s presidential party list during the parliamentary elections of DATE .


CASE OF VASILICIUC v. THE REPUBLIC OF MOLDOVA

Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE , GPE .

Because of the difficult economic situation in GPE , in DATE the applicant left that ORG for GPE where she found employment ; she was engaged by a family to take care of a disabled child . She used to visit GPE on holiday DATE and she kept an apartment in GPE .

On DATE , after a visit to GPE , the applicant was returning to GPE from FAC when she was stopped by customs officers because she had on her QUANTITY pieces of non - identical jewellery such as rings , bracelets , necklaces and pendants . The applicant was wearing CARDINAL pieces of the jewellery and the rest were in a jewellery box in her handbag . Since the applicant had failed to declare the jewellery , she was taken to the airport police station . There she stated that she had not been attempting to smuggle the jewellery through customs and that she had honestly believed that no declaration was necessary for goods whose value was MONEY ( ORG ) . She also submitted that the jewellery in question had been brought to GPE from GPE . She was informed that she only had the right to take CARDINAL pieces of non - identical jewellery out of country , no matter their value . She also submitted that she had not been asked to declare anything by the customs officers . The police drew up a report according to which the applicant had in her possession CARDINAL pieces of jewellery made of precious metals and stones with a total value of CARDINAL Moldovan lei ( MDL – approximately ORG CARDINAL,CARDINAL ) . All the jewellery , including the pieces allowed by law to be transported over the border , was seized by the police .

The applicant missed her flight and spent DATE in GPE during which time she went to the police station on several occasions . There she made an official declaration and signed a formal undertaking to appear before the prosecuting authorities and courts when necessary . She informed the authorities about her intention to leave the country and obtained their permission . She also gave her NORP address and telephone number .

On DATE the applicant returned to GPE because she could no longer be absent from work . She had no difficulties in leaving the country through the same airport .

On DATE the PERSON airport police formally initiated criminal proceedings against the applicant for attempted smuggling of jewellery . The offence was considered to be a minor one ( infracțiune ușoară ) with a maximum penalty of CARDINAL NORP lei ( approximately LAW ) or TIME community service or imprisonment of DATE . The applicant was not aware of the initiation of the criminal proceedings against her .

Subsequently , the applicant was summoned to appear before the investigating authorities via her NORP address . Since she did not appear , the prosecutors contacted her adult son and a relative of hers and asked them about the applicant ’s whereabouts . Both of them stated that the applicant was in GPE and that they did not know when she intended to return to GPE . It does not appear from the material in the case - file that the prosecutors asked the applicant ’s relatives for her contact information in GPE or to inform her that she had to appear before them .

On DATE the prosecutor ’s office applied to ORG for a detention order in respect of the applicant . The reason relied upon by the prosecutors was that the applicant had absconded from prosecution when she left the country on DATE , in spite of her having given a written undertaking to appear when summoned . A public defender was appointed to represent the applicant . On DATE ORG ordered the applicant ’s detention for DATE . The reason relied upon by the court was that the applicant had failed to appear before the investigating authorities when summoned . The publicly appointed lawyer did not challenge that decision .

The applicant learned of the detention order against her in DATE and employed a NORP lawyer to challenge it . On an unspecified date the applicant ’s representative lodged a habeas corpus application with ORG in which it was argued , inter alia , that the applicant had not been aware of the criminal proceedings against her , that she had never been summoned to appear before the prosecutor ’s office and that she had not been informed that she could not leave the country . She asked the court to revoke the detention order and , in exchange , promised to appear before the court when necessary and to surrender her passport .

On DATE ORG rejected the applicant ’s habeas corpus application relying , inter alia , on the fact that the applicant had formally undertaken to appear before the prosecuting authorities and courts and later failed to abide by the undertaking . The applicant ’s representative appealed , arguing , inter alia , that according to the law the undertaking had not been valid because no criminal proceedings had been formally instituted at that time . The appeal was dismissed by ORG on DATE .

NORP In DATE , after the communication of the present case to the Government , the NORP authorities applied to ORG for an international arrest warrant for the applicant . As a result , the applicant was arrested in GPE and held in detention pending extradition proceedings for a period of DATE . In the documents ordering the applicant ’s arrest and detention , the NORP authorities made specific reference to the detention order issued by ORG on DATE ( see paragraph CARDINAL above ) . The extradition proceedings ended on DATE when ORG rejected the GPE extradition request and ordered the applicant ’s release from detention . ORG found that according to LAW , persons suspected of offences in connection with taxes , duties and customs could be extradited only if the Contracting Parties have so decided in respect of any such offence or category of offences . In the absence of any such agreement between GPE and GPE , the extradition request could not be upheld . It appears that the applicant has not returned to GPE ever since .


Remainder inadmissible (Article 35-3 - Manifestly ill-founded);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

NORP The applicant organisation , SIA AKKA / LAA ( ORG Autortiesību un komunicēšanās konsultāciju aģentūra / Latvijas NORP apvienība ” –Copyright and ORG ) is a non - profit organisation founded in GPE by a separate nonprofit organisation , ORG , whose members are various NORP artists .

At DATE the applicant organisation , acting as a representative of CARDINAL domestic and CARDINAL international authors who had entrusted the applicant organisation to manage the copyright of their musical works , was concluding licence agreements with several broadcasters in GPE . DATE , after the expiry of the previous licence agreements , the applicant organisation and certain broadcasting organisations in GPE could not reach an agreement on the terms of the future licence agreements , especially with regard to the remuneration to be paid for the broadcasting of music . As a result some broadcasting organisations continued to use the protected musical works without a written agreement , either without paying any remuneration or paying the amount the broadcasting organisations unilaterally considered equitable . In DATE the applicant organisation instituted civil proceedings against several broadcasters operating in GPE .

NORP In DATE the applicant organisation lodged a claim against a private radio station , ORG , and requested that ORG , acting as a first - instance court , recognise that by broadcasting protected musical works without a valid licence agreement DATE and DATE , the defendant had violated economic interests of the authors represented by the applicant organisation . The applicant organisation further asked that the court award compensation for unauthorised use of musical works . By relying on the ORG exclusive rights to control the use of their musical works , the applicant organisation asked the court to apply an injunction precluding the defendant from using the ORG works before a valid licence agreement between the parties had come into effect .

The defendant lodged a counterclaim arguing that the applicant organisation had abused its dominant position and had fixed an unreasonably high royalty rate , which was CARDINAL times the rate which had been applicable for DATE . They asked the court to order the applicant organisation to conclude a licence agreement with the defendant organisation and to lay down an equitable royalty rate .

During the first - instance court ’s hearing , the applicant organisation admitted that the parties had a dispute over the royalty rate in the draft licence agreement negotiated by the parties , but that the court was precluded under section CARDINAL of LAW from setting the rate as long as there was no licence agreement concluded between the parties ( see paragraph CARDINAL below ) .

On DATE the first - instance court partly upheld the claim and fully upheld the counterclaim . It established that DATE and DATE the defendant had infringed the ORG rights by broadcasting the protected works without authorisation , contrary to the provisions of LAW . The first - instance court ordered the defendant to pay to the applicant organisation compensation for the above period in the amount of CARDINAL NORP lats ( ORG , equivalent to CARDINAL euros ( ORG ) ) , which was PERCENT of the defendant ’s net turnover over this period .

Furthermore , the first - instance court ordered the applicant organisation to conclude a licence agreement with the defendant for DATE period with a royalty rate set at PERCENT of the defendant ’s DATE net turnover ( ikmēneša neto apgrozījums ) .

Lastly , by relying on the preamble of the WIPO Copyright Treaty and Articles DATE of LAW ( see paragraph CARDINAL below ) , the first - instance court dismissed the applicant organisation ’s application to have an injunction granted to prohibit the defendant from broadcasting works of the rightsholders represented by the applicant organisation . By referring to the testimonies of CARDINAL authors represented by the applicant organisation , the first - instance court concluded that the authors themselves were interested in their musical works being publicly broadcasted . An interdiction on broadcasting of the musical works would infringe the ORG exclusive rights to have their work reproduced , as well as it would negatively affect the interests of the society to listen to music .

On DATE ORG of ORG , acting as an appellate court , upheld the part of the first - instance judgment concerning the compensation for copyright infringement and the injunction .

On the issue of ordering the conclusion of a licence agreement , the appellate court observed that both parties had expressed their intention to enter into a such an agreement , as attested by a draft licence agreement of CARDINAL DATE in which the parties had agreed on certain terms and conditions such as the duration of the licence and the income from which royalties should be calculated . The appellate court noted that it was partly due to the applicant organisation ’s inconsistent negotiating that a licence agreement could not be concluded . The appellate court accordingly recognised that the licence agreement was to be considered concluded in the wording as agreed by the parties on DATE . On the question of remuneration , the appellate court established that in the negotiation process the applicant organisation had changed the royalty rate from PERCENT and then to PERCENT , whereas the defendant had insisted on PERCENT of the income from which royalties should be calculated . The appellate court took note of the characteristics of the defendant ’s activities and concluded that an equitable remuneration would be PERCENT of the income from which , as agreed by the parties , the royalties should be calculated .

On DATE , following an appeal on points of law , the ORG of ORG upheld the appellate court ’s findings that after the expiry of the earlier licence agreement on DATE the de facto contractual relationship between the parties had continued mainly owing to the fact that the applicant organisation had failed to reach an agreement with the defendant on the terms of the licence agreement . The ORG of ORG further observed that the parties did not contest that the authors had a right to receive equitable remuneration , but that to that day the parties had not reached an agreement on the rate of the royalty payments . Given that there was no other authority responsible to decide on this matter , the ORG of ORG concluded that pursuant to LAW and section CARDINAL of LAW , it was within the court ’s competence to set the royalty rate . The ORG of ORG also dismissed the allegations that the appellate court ’s judgment had infringed the intellectual property rights protected under LAW .

In their claim against ORG , a state - owned limited liability company , the applicant organisation asked ORG , acting as a first - instance court , to find that by broadcasting the rightsholders’ musical works without a valid licence agreement DATE and DATE , the defendant had violated economic interests of the authors represented by the applicant organisation . The applicant organisation further asked that the court award compensation for unauthorised use of musical works . By relying on the ORG exclusive rights to control the use of their musical works , the applicant organisation asked the court to apply an injunction precluding the defendant from using the ORG works before a valid licence agreement between the parties had come into effect .

By lodging a counterclaim the defendant in essence asked the court to recognise that in the disputed period the parties had a de facto contractual relationship .

On DATE ORG dismissed the applicant organisation ’s claim and upheld the counterclaim . The court established that even though the licence agreement concluded between the parties with the royalty rate set at PERCENT of the defendant ’s DATE income had expired in DATE , the applicant organisation had continued receiving royalty payments from the defendant , which continued to pay at a lower rate . Given that the applicant organisation had not referred to objections to the broadcasting of the musical works , the existence of a de facto contractual relationship between the parties had been proven . Relying on section CARDINAL of the Copyright Law the court set the royalty rate from DATE at PERCENT of the defendant ’s DATE income .

On DATE ORG of ORG , acting as an appellate court , diverted from the first - instance court ’s findings and recognised that the defendant had infringed copyright by broadcasting the musical works over a prolonged period of time without a valid written licence agreement . It awarded the applicant organisation compensation in the amount of ORG CARDINAL,CARDINAL ( ORG CARDINAL ) , which exceeded the amount the defendant had paid under the expired licence agreement . It considered that it would be fruitless to issue an injunction prohibiting the defendant from broadcasting the works . The appellate court observed that in principle the parties had expressed their interest in concluding a licence agreement but that before and during the court proceedings the parties had not agreed on the equitable royalty rate . It also pointed to the applicant organisation ’s responsibility in failing to reach an agreement in the negotiation of a new licence . As a result , over a prolonged period of time the ORG rights had been unprotected . As the parties had not asked the court to decide on the exact terms and conditions of a licence agreement , the appellate court decided to impose on the parties a general obligation to conclude a licence agreement by DATE . Given that the parties had been unable to agree on a royalty rate , the appellate court set the rate at PERCENT of the defendant ’s net turnover . In reaching this conclusion the appellate court took into consideration such elements as , inter alia , the royalty rate set in other court proceedings and the existing practice in certain other ORG member GPE .

NORP The applicant organisation appealed on points of law arguing that by , inter alia , ordering the parties to conclude a licence agreement and setting its terms , the court had overstepped its powers and acted in breach of LAW of LAW and section CARDINAL of LAW .

On DATE the ORG partly upheld the lower court ’s judgment with similar reasoning as in the first set of proceedings .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

The applicants complained of the inadequate conditions of their detention . Some applicants also raised other complaints under the provisions of the Convention .


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

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested after criminal proceedings had been opened against him for bribe taking . On the same date he was detained in ORG detention facility .

On DATE he was moved to FAC .

On DATE he was released . The criminal proceedings opened against him are still pending before the domestic courts .

In ORG detention facility and FAC the applicant had to share a cell with smokers , even though he was a nonsmoker and was suffering from a heart condition . He was unable to rest because the other detainees would smoke continuously from TIME to QUANTITY p.m. , and the cell would be covered by thick smoke .

The cell did not have enough furniture , and lacked coat hangers , shelves and cupboards . Clothes had to be stored on the floor , under beds , where no cleaning was carried out . The bathrooms lacked shelves and privacy , as the washing area and toilet facilities were not separate . In addition , the cell was damp , measured QUANTITY m. , had a volume of QUANTITY , contained CARDINAL beds , and was occupied by QUANTITY detainees . Cleaning and dehumidification materials were provided by his family , and in the absence of any action on the part of the prison authorities , he and the other detainees had to clean the cell themselves . The cell was not heated during DATE , and as a result of the extreme cold the applicant had to ask his family to provide him with warmer bed linen . Also , the cell was infested with fleas , lice , bed bugs and mosquitoes , but the detainees were not allowed to disinfect it , even at their own expense .

The detention facilities did not provide detainees with any areas for washing , drying or cleaning their clothes . He was forced to wear dirty clothes , or if he did wash them , he had to wear them damp .

NORP The bed linen provided by the authorities was unusable , was not suitable for DATE and was not changed during the entire time he was detained .

Warm water was available twice a week for TIME each time therefore not all detainees could wash . He was unable to shave on a DATE basis . Detainees did not have access to a barber , toiletries were not provided by the authorities and he had to purchase shaving products at his own expense .

NORP The food was poor , insufficient and served in unhygienic conditions by detainees not wearing the appropriate equipment for serving food . The cutlery and plates were rusty and dirty , and the cell did not have a table and chairs for detainees to be able to sit down and eat their meal .

He was taken out of his cell for a walk only twice a week for TIME ; between QUANTITY or twenty inmates would be in the prison courtyard at a time . The courtyard was covered by a metal mesh , measured QUANTITY m , had no bathroom facilities and did not receive any sunlight .

The applicant was transported to and from court and was held in the courthouse cells with smokers .

In Bacău Police Department ’s detention facility the applicant was detained in a cell which measured QUANTITY m and contained CARDINAL beds . The cell had central heating and was ventilated . The sanitary facilities were outside the cell and were accessible to everyone TIME a day . Detainees had access to a shower , a sink , and a toilet that was separate from the rest of the bathroom . They were allowed to shower and do their laundry twice a week .

In Bacău Prison the applicant was detained in CARDINAL different cells . CARDINAL of them were in the infirmary .

From DATE to CARDINAL DATE the applicant was detained in a cell which measured QUANTITY . m and contained CARDINAL beds . From DATE to CARDINAL DATE he was detained in a cell which measured QUANTITY . m and contained CARDINAL beds . From DATE he was detained in a cell which measured CARDINAL sq . m and contained CARDINAL beds . From DATE he was detained in a cell which measured CARDINAL sq . m and contained CARDINAL beds .

All the detention cells had central heating , sanitary facilities , windows , electricity and were furnished . The beds had mattresses , pillows , bed linen and blankets provided by the detention facility . Detainees were also allowed to receive bed linen from their families .

Detainees had unlimited access to cold water . They also had access to warm water DATE , based on a pre - approved rota .

The cells were heated DATE during DATE from CARDINAL to CARDINAL a.m. and TIME

They were disinfected CARDINAL times a year or whenever needed , by specialist contractors . In addition , detainees were provided with cleaning materials and had a statutory duty to clean their cells . They were also provided with toiletries for their personal hygiene . Starting from DATE each individual had to sign for the toiletries they were given .

NORP The detention facilities had cells assigned exclusively to nonsmoking detainees .

Without providing supporting documents , the ORG submitted to the ORG that when the applicant had been transferred to FAC , he had declared that he was a smoker . In addition , on CARDINAL and DATE and CARDINAL DATE he had purchased cigarettes , and on CARDINAL DATE he had bought lighters .

The applicant was transferred only to courthouse cells and not to any other detention facilities . The vehicles had windows and heating .

As a general rule , detainees were forbidden from smoking during transfers . Smokers were separated from non - smokers in the courthouse cells .

Between DATE and DATE the applicant was transferred CARDINAL times to and from court , for distances of QUANTITY .


CASE OF ROMAN CATHOLIC ARCHDIOCESE OF VRHBOSNA v. BOSNIA AND HERZEGOVINA

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

The applicant is a NORP community in GPE , based in GPE .

By decision of CARDINAL DATE , which became final and binding on DATE , ORG for GPE ( “ the Chamber ” ) found that ORG an entity of GPE ) had discriminated against the applicant in its enjoyment of the right to freedom of religion guaranteed by LAW . In order to remedy the situation it ordered ORG to ensure the relocation of public schools housed in the ORG building in GPE , and to reinstate the applicant in the LOC within DATE . The ORG rejected a request by the applicant for pecuniary and non - pecuniary damages .

By an agreement of CARDINAL DATE , ORG undertook to reinstate the applicant in the impugned premises by DATE . Shortly thereafter , ORG adopted the implementing decisions , and also one of the public schools was moved from the premises .

On DATE ORG issued a writ of execution ( rješenje o izvršenju ) . On DATE the ORG quashed that decision and remitted the case for reconsideration . On DATE ORG held that it lacked jurisdiction to deal with the case . On DATE ORG quashed that decision and remitted the case for reconsideration . On DATE ORG held that the decisions of the ORG were not subject to enforcement proceedings . On DATE the applicant lodged an appeal against that decision . At the date of the latest information available to the ORG ( CARDINAL DATE ) , ORG had not yet ruled on the matter .

On DATE ORG and GPE determined that ORG had not yet fully enforced the decision of CARDINAL DATE .

On DATE the applicant initiated civil proceedings against the public school remaining in its premises , requesting its relocation , as well as damages for the use of the premises for the period between CARDINAL DATE and DATE .

On DATE ORG in GPE rendered a judgment in the applicant ’s favour , rewarding in full its claims finally specified in the proceedings , namely MONEY ( BAM ) for pecuniary damages and CARDINAL BAM for costs and expenses . ORG also ordered the respondent to vacate the applicant ’s LOC within DATE from receiving the judgment . On DATE ORG in ORG upheld the judgment of the first - instance court . At the date of the latest information available to ORG ( DATE ) , ORG submitted a revision petition to ORG against the final judgment in these proceedings . It also appears that the public school has still not been relocated .


STEINER AND STEINER-FASSLER v. SWITZERLAND

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

NORP The case originated in an application ( no . CARDINAL/CARDINAL ) against ORG lodged with ORG under LAW ( “ the LAW ) by NORP nationals , Mr PERSON and PERSON ( “ the applicants ” ) , on DATE .

The applicants were represented by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Deputy Agent , PERSON , of ORG .

The applicants alleged a violation of LAW as documents relating to the construction of both a paved sidewalk and a gravel walk along the river bank adjacent to their property in DATE were not made accessible to them . Furthermore , they complained that the new route of the path across their property was contrary to LAW .

On CARDINAL DATE the application was communicated to the Government .

The applicants are NORP nationals , who were born in DATE and DATE respectively , and live in Alpthal in the canton of Schwyz .