No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 14+10 - Prohibition of discrimination (Article 14 - Discrimination) (Article 10 - Freedom of expression -{General})

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

In DATE , the journalist PERSON entered into a contract of employment with the C. company . The C. company was authorised under the relevant provisions of LAW to perform animal experiments and to keep and breed animals ( monkeys ) for that purpose . During his TIME , PERSON , using a hidden camera , produced TIME of film footage which documented the treatment of laboratory animals within the C. company ’s premises .

Having terminated his employment contract , PERSON prepared footage of TIME which he offered to a major NORP broadcasting company . On DATE the broadcasting company aired a film of TIME under the title “ Animal experiments for profit ” . The film showed a number of different scenes from within the C. company ’s LOC , accompanied by a critical commentary . The scenes primarily concerned the ORG accommodation and the way they were treated by staff . During DATE , other broadcasting companies showed excerpts of the footage .

Later on , a film of TIME with the title “ Poisoning for profit ” was produced , which used largely the same material that had already been aired on television . The introduction to the film claimed that the applicable law was systematically flouted in the laboratories of the C. company . The film further showed various experiments being carried out on monkeys . The second CARDINAL particularly dealt with the way in which staff treated the animals , alleging that the animals were repeatedly treated in a cruel and harsh way . The film contained the accusation that the applicable legal regulations on the treatment of animals were disregarded and closed by the statement that medicines were not being made safer by poisoning monkeys . The applicant association made the film available for download on its website .

The C. company filed requests for civil injunctions against the dissemination of the film footage against the applicant association , against the journalist PERSON and against other animal rights activists .

On DATE ORG ( Landgericht ) ordered the applicant association to desist from publicly showing the film footage taken by the journalist PERSON on the C. company ’s LOC or to make it otherwise available to third persons .

On DATE , ORG confirmed the injunction . It considered that the publication and dissemination of the footage interfered with the C. company ’s personality rights , as the footage was produced without that company ’s consent within its private LOC . According to ORG , the interference was unlawful because the C. company ’s interest that the footage should not be published outweighed the applicant association ’s interest in its publication .

On DATE the ORG ( Oberlandesgericht ) rejected the applicant association ’s appeal . That court confirmed that the C. company had an injunction claim under section CARDINAL in conjunction with section CARDINAL of LAW and LAW and LAW ( see relevant domestic law , below ) . ORG considered that the C. company was not obliged to tolerate the publication and dissemination of the footage by the applicant association , because the applicant association had demonstrated that it did not respect the “ rules of intellectual battle of ideas ” ( ORG Meinungskampfs ) . The court observed that it had allowed other persons , to which these circumstances did not apply , to continue the dissemination of the footage as long as this was not accompanied by unfounded or sensationalist reproaches .

ORG confirmed that the publication of the footage interfered with the C. company ’s personality rights , which encompassed the right not to be spied upon by use of hidden cameras . Even though the footage was produced in an unlawful way , the court considered that the dissemination of such material was protected by the applicant association ’s right to freedom of expression . In the instant case , this right was further enforced by the special reference to animal rights in LAW . There was no doubt that animal experiments were a controversial issue , which concerned the public in a serious way .

Under the relevant case - law of ORG , it had thus to be determined whether the means employed had been proportionate to the aim pursued . The court considered , on the one hand , that the published material had been procured in an unlawful way and was to be used against the very person who had been betrayed . Such material could only be published if the importance of the information for the public clearly outweighed the disadvantages suffered by the injured party and by the legal order as a whole .

Given that the information used had been procured in an unlawful way , it was decisive whether the person using this information was respecting the rules of intellectual battle of ideas . If a person did not abide by these rules , his right to freedom of expression had to cede . ORG considered that numerous examples from the case - file demonstrated that this prerequisite was not met in the applicant association ’s case .

The court quoted a number of statements from the applicant association ’s homepage , such as the following one :

“ ORG animal ’s ] life will also be more important for us than a broken door , a destroyed laboratory or an incinerated meat transport . ”

When third persons spilled artificial blood on a business associate of the C. company , the applicant association announced the publication of photographs and commented on the event as follows :

“ The [ applicant association ] has nothing to do with spilling artificial blood on the monkey dealer , but solidarises with the animal rights activists who have performed this act . ”

According to ORG , these quotations demonstrated that the applicant association approved of the commission of criminal offences . With the following quotation , the applicant association incited third persons to commit criminal acts by offering its support :

“ We carry out public relations and press work for so - called autonomous animal right activists who risk public prosecution in order to save animal life ; furthermore , we show our solidarity by granting legal aid . ”

ORG considered that the applicant association had not been aware of the fact that it might entice third parties to break into the C. company ’s private sphere by interfering with the C. company ’s personality rights through dissemination of unlawfully obtained information . On the contrary , it even enhanced that risk . On its website , the applicant association reproached the C. company of committing “ murder and torture ” . Even if such unfounded and sensationalist statements , considered on their own , might be covered by the right to freedom of expression , they indicated that the applicant association intended to use the footage for defaming the C. company ’s reputation . The applicant association further supported interferences with the private sphere of the C. company ’s staff members by reporting on gatherings in front of private homes – which the applicant association labelled as “ home - demos”– and by disseminating flyers and posting stickers in the private neighbourhood of the C. company ’s staff members . Even if the applicant association or its members might not have taken part personally in these actions , they supported such actions not only by reporting on their website , but , to all appearances , also in a financial way . On its homepage , the applicant association published the sentence :

“ The action groups act in a mostly autonomous way and are financially supported by the association . ”

The C. company had furthermore established that the applicant association had high - jacked their website .

The court considered that the applicant association , by employing these unfair means , attempted to force the C. company to close down its business activities , thereby even accepting the use of violence . This was confirmed by the applicant association ’s declaration on its website :

“ The [ applicant association ] does not request “ better accommodation ” or “ better treatment ” of animals which are killed in animal experiments , but demands the immediate abolition of all animal experiments . ”

It was not for the court to evaluate the aims pursued by the applicant association . The issues raised by the applicant association were part of a public debate and the applicant was certainly allowed publicly to express its opinion and to demand the abolition of animal experiments . However , when assessing the relation between the means employed and the aims pursued , it had also to be taken into account whether the person concerned by the interference with their personality rights had to tolerate the dissemination of the unlawfully acquired information by a specific person . Against the background laid out above , the C. company could not be expected to tolerate that an adversary such as the applicant association used film footage that had been produced in an unlawful way .

The Court of Appeal further pointed out that the judgment exclusively concerned the use of the unlawfully produced footage . The applicant association remained fully entitled to express its criticism on animal experiments in other , even CARDINAL - sided ways . ORG finally observed that the civil injunction was subject to review in case of a change of the relevant circumstances . This served the applicant association ’s interests , as it was up to them to respect the rules of intellectual battle of ideas .

On DATE ORG , relying on its Rules of Procedure , refused to admit the applicant association ’s constitutional complaint without giving further reasons .

By judgment of DATE the ORG ordered the journalist PERSON and another animal rights activist to desist from publishing or disseminating the film “ Poisoning for profit ” as well as CARDINAL further short versions of the film footage . Conversely , ORG rejected the C. company ’s request entirely to prohibit the publication of the footage secretly obtained within its LOC . Basing its assessment on the opinions submitted by altogether CARDINAL experts , ORG considered that the way the animals were treated inside the laboratory justified criticism . There was , however , no evidence for cruelty to animals in the legal sense of the word . ORG further observed that the film “ Poisoning for profit ” , through its accompanying commentary and through the way specific scenes were cut together , conveyed the core message that the C. company systematically contravened the law . Similar principles applied to CARDINAL further short versions already broadcast . ORG concluded that the C. company ’s request was to be granted insofar as it concerned this specific footage . However , the defendant was , in principle , not prevented from using the footage in other ways , as long as he did not convey any misleading message .

Following the broadcast of DATE , a NORP animal rights organisation and several others lodged criminal complaints against the C. company for contravention against LAW .

On DATE ORG informed the animal rights organisation that criminal investigations had been discontinued for lack of a sufficient suspicion . Basing its assessment on an examination of the long version of the film footage , on the statements made by the journalist PERSON and by the C. company during the criminal investigations , and on CARDINAL expert opinions , ORG considered that it could not be established that the management or animal keepers had contravened LAW .

The Public Prosecutor noted , at the outset , that the C. company possessed the necessary authorisation for keeping and breeding animals and for performing animal experiments . It followed that the C. company was allowed to perform interventions and treatments for experimental purposes even if this should cause pain or suffering . It had not been established that cruelty to animals had been exerted or tolerated by the C. company . The fact that some scenes could be considered as tasteless and lacking respect towards the animals was not relevant in this context .

The Public Prosecutor transferred the case - file to the administration for further examination .

On DATE the Municipality of GPE ordered the C. company to record the treatment of the monkeys on video and to have the film material assessed on a DATE basis by the company ’s animal welfare officer . On DATE ORG restored the suspensive effect of the objection lodged by the C. company against this order since no breach of LAW had been proven . The objection proceedings were discontinued in DATE .

In DATE , the C. company requested the issue of civil injunctions ordering CARDINAL NORP animal right associations and CARDINAL internet providers to desist from further disseminating footage taken by the journalist PERSON inside its LOC . On CARDINAL DATE the Münchwilen ORG ( Bezirksgericht ) rejected the request on the grounds that there were serious doubts whether the practices depicted on the footage were in line with the NORP law on animal protection and that the associations’ right to freedom of expression had to prevail .


CASE OF RADUNOVIĆ AND OTHERS v. MONTENEGRO

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

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

The applicants were born in DATE , DATE and DATE respectively and live in GPE .

The applicants were employees of ORG ( “ the Embassy ” ) in GPE . The first applicant worked as a protocol specialist / translator , and the second and third applicants as security guards . All the applicants were local staff .

NORP The employment contract between the locally employed staff and the Embassy provided , inter alia , as follows :

“ CARDINAL . Services to be Performed . The employee agrees to perform all the duties set forth in FAC in accordance with the terms and conditions set forth herein .

Disputes . All disputes between the employee and the Government arising out of this agreement shall be decided by ORG or , in the absence thereof , the designee of ORG , provided that the employee shall have the right to appeal in writing within DATE of receipt of notice of any such decision to the Chief of Mission [ at ORG ] . ”

The first applicant ’s main duties and responsibilities were related to assisting in organising official receptions , lunches and dinners ; questions relevant to protocol and local practices and customs ; maintaining a contact database ; drafting correspondence in LANGUAGE and PERSON ; interpreting and translating documents , articles and incoming correspondence ; arranging official calls ; ensuring press coverage of ceremonial events ; organising official visits and serving as a contact person between the front desk and the host country officials .

The second and third applicants’ main duties and responsibilities were continuous surveillance of an area around their fixed posts for security hazards ; checking ID cards , screening visitors and vehicles , and controlling parking ; recognising emergencies and unusual incidents , and acting accordingly . They could occasionally be required to work at other locations and for special functions such as VIP visits , receptions and dinners at ORG .

Between DATE and DATE the applicants were informed by the ORG that they were dismissed .

On DATE ORG ( PERSON ) in GPE , apparently upon the third applicant ’s claim to that effect , quashed the decision on his dismissal and ordered his reinstatement . It would appear that on an unspecified date thereafter this decision became final .

Between DATE and CARDINAL DATE the applicants instituted separate civil proceedings against ORG . All the applicants claimed compensation : the first applicant sought compensation for non - pecuniary damage caused by the wrongful dismissal , and the second and third applicants claimed compensation for loss of earnings . The first and second applicants , in addition , sought reinstatement .

On CARDINAL DATE ORG in GPE declared that it lacked competence to deal with the first applicant ’s claim and rejected it ( tužba [ se ] odbacuje ) , which decision was upheld by ORG on DATE . On DATE ORG quashed these decisions . Relying on section CARDINAL of LAW , section CARDINAL ( CARDINAL ) of LAW and section CARDINAL of ORG ( see paragraphs CARDINAL , CARDINAL and DATE below ) , ORG considered that the LOC courts had jurisdiction to examine the merits of the first applicant ’s claim .

DATE and DATE ORG in GPE declared that it lacked competence to deal with the ORG claims ( in a re - trial in respect of the first applicant ) and rejected them . In substance , the court considered that the respondent ORG had immunity provided for by international law , and therefore could not be subjected to the jurisdiction of another ORG ’s court . In rejecting the first applicant ’s claim the court further held that granting immunity to the respondent ORG could not be considered a restriction on access to court , as provided in LAW . While the court acknowledged that in international and comparative law there were restrictions on ORG immunity in respect of employment - related disputes , it also held that recruitment ( pitanja u vezi sa zapošljavanjem ) in a foreign diplomatic mission or an embassy was an issue which could be “ very sensitive or of a confidential nature ” and might relate to the diplomatic and organisational policy of a foreign ORG . In ruling upon the second and third applicants’ claims , ORG relied also on LAW , which provided that the function of Embassies was to represent foreign GPE , and held that therefore the jurisdiction of the domestic courts was excluded . The court also relied on LAW , which provided for the inviolability of the premises of Embassies .

On various dates thereafter the applicants appealed . The first applicant submitted , inter alia , that by examining the merits of her claim the courts would not interfere with the other party ’s sovereignty . She also submitted that ORG had to examine the claim on the merits pursuant to the decision of ORG of DATE and relied on LAW ( see paragraph CARDINAL below ) .

Between DATE and DATE ORG upheld the first - instance decisions , in substance endorsing their reasoning . ORG further held , upon the first applicant ’s appeal , that a violation of sections CARDINAL ( CARDINAL ) and CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) by the first - instance court did not render the first - instance decision unlawful , in particular as it was undisputed that the respondent party had its seat in another ORG and only a diplomatic representation in GPE . In ruling upon the second applicant ’s claim it held that the jurisdiction of the domestic courts was not explicitly provided for either by the law or an international agreement .

DATE and DATE , ruling upon the applicants’ appeals on points of law , ORG upheld the previous decisions on the grounds that the respondent party was a foreign ORG with its own legal personality and the domestic courts had no competence to rule upon the ORG claims . The court relied on LAW of LAW , section CARDINAL of ORG , and LAW . In ruling upon the third applicant ’s appeal on points of law ORG also held , inter alia , that granting immunity to a foreign ORG in civil proceedings pursued a legitimate aim of complying with international law and encouraging good diplomatic relations between GPE , and that it could not be considered as a restriction on access to court in violation of LAW .

DATE and DATE the applicants lodged separate constitutional appeals . On DATE ORG dismissed the first and third applicants’ constitutional appeals , while the second applicant ’s constitutional appeal would appear to be still pending . ORG held that there had been no violation of LAW as the decisions had been issued by tribunals established by law , which had acted within their competence , and which had given clear reasons for their decisions . There was therefore no arbitrariness in the ORG rulings . In ruling upon the third applicant ’s constitutional appeal ORG in addition held that pursuant to the case - law of the ORG and the Constitutional Court “ it [ was ] not the task of these courts to examine the conclusions of the regular courts in respect of the substantive law application , except in cases where [ ... ] procedural rights were violated ( [ such as ... ] , the right of access to court ) [ ... ] ” . However , it did not go into any analysis CARDINAL applicant ’s right of access to court .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE criminal proceedings were instituted on account of a fight with use of firearms between CARDINAL groups of people , which had taken place DATE . As a result of the fight , CARDINAL person died and CARDINAL others were wounded . The applicant went into hiding after having participated in the fight and a search for him was declared .

On DATE the applicant turned himself in to the police . He surrendered his CARDINAL guns and stated that he had used them during the fight in defence against an assault by unknown persons . He was arrested and taken into custody .

On DATE the applicant was charged with aggravated murder , under LAW ( CARDINAL ) of LAW ( ORG ) , aggravated infliction of serious injuries , under LAW ORG , and illegal possession of firearms , under LAW .

On DATE the investigator applied to ORG seeking to have the applicant detained for DATE . The application stated that on DATE the applicant , in a manner dangerous to the life of many , had opened fire from illegally - possessed guns on individuals PERSON , ORG and GPE , as a result of which he had unlawfully and intentionally deprived PERSON of his life and inflicted serious injuries on ORG and V.H. The application further stated that the applicant had to be detained , inter alia , because he had committed a serious crime .

On DATE ORG decided to grant the motion and detain the applicant for DATE , from DATE until DATE . The court found that the applicant might abscond , obstruct the examination of the case , avoid criminal liability and serving the imposed sentence as well as hinder the execution of the judgment . In so finding , the court took into account the nature and gravity of the imputed offence and the fact that the applicant had committed a serious crime .

On DATE the applicant lodged an appeal , claiming that his detention was not based on a reasonable suspicion that he had committed an offence and that ORG had not adduced sufficient reasons when finding that his detention was justified . He also alleged that the principle of the presumption of innocence had been breached since ORG had stated in the affirmative that he had committed a grave crime .

NORP On DATE ORG upheld the decision of ORG . ORG found that there was sufficient evidence to raise a reasonable suspicion that the applicant had committed an offence . In this regard , it referred to the applicant ’s statements to the investigative bodies and the results of PERSON ’s autopsy , according to which he had died from a bullet wound . As to the reasons for detention , ORG found that the applicant might obstruct the examination of the case . In so ’s statement had to be taken solely as meaning that the offence was imputed .

On DATE the applicant lodged an appeal on points of law .

On DATE ORG left the appeal unexamined on the ground that it had been lodged outside the prescribed DATE time - limit .

On DATE , DATE , CARDINAL DATE and DATE the GPE and ORG of GPE , on the basis of corresponding motions lodged by the investigator , extended the applicant ’s detention , ultimately until DATE , on the ground that , taking into account the hostility between the applicant and the victim ’s friends and relatives which had resulted in the burning of the applicant ’s property , the applicant might commit a crime . It further found that , taking into account the nature and gravity of the imputed offence the applicant , if at large , might commit a new crime , abscond , obstruct the examination of the case and avoid criminal liability .

The applicant appealed against the decisions of ORG claiming , inter alia , that the court had provided no relevant and sufficient reasons justifying his detention .

On DATE , DATE , DATE and DATE ORG upheld the respective decisions of ORG . It held that the applicant ’s continued detention on remand was justified , taking into account the applicant ’s personality and the nature and gravity of the imputed offence , punishable by a maximum of life imprisonment , which increased the likelihood of his absconding .

The applicant appealed on points of law against the respective decisions of ORG .

On DATE ORG decided to leave the applicant ’s first appeal unexamined on the ground that it had been lodged outside the prescribed DATE time - limit . On DATE , CARDINAL DATE and DATE ORG declared the applicant ’s other appeals inadmissible for lack of merit .

On DATE the investigator decided to drop some charges against the applicant and modify others . In particular , the charge of illegal arms possession ( Article CARDINAL § CARDINAL of the ORG ) was dropped , while the charges under LAW ( CARDINAL ) and LAW ( CARDINAL ) were modified and replaced with a charge for CARDINAL counts of aggravated attempted murder ( LAW ( CARDINAL ) and ( CARDINAL ) in conjunction with LAW ) and a charge for CARDINAL counts of aggravated hooliganism ( LAW ( CARDINAL ) and ( CARDINAL ) respectively ) .

On DATE the investigator applied to have the applicant ’s detention extended by DATE .

On DATE ORG , having examined the materials of the criminal case , decided to grant partially the request and to extend the applicant ’s detention for DATE , until DATE , on the same grounds as those invoked in its previous decisions . As a reason for considering that the applicant might avoid responsibility , the court referred to the fact that the applicant had gone into hiding after committing the crime and thus obstructed the examination of the case .

On DATE , upon the applicant ’s appeal , ORG upheld the decision of ORG finding that the applicant , if he remained at large , might abscond , obstruct the proceedings or , given the continuing hostility between the CARDINAL sides , might commit new crimes .

On DATE the investigator decided to drop or modify the charges against the applicant . In particular , the charge of aggravated hooliganism under LAW ( CARDINAL ) was dropped and new charges LAW CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) in conjunction with LAW CARDINAL § CARDINAL of the ORG were brought .

Meanwhile , on DATE the investigator applied to have the applicant ’s detention extended for DATE .

On DATE ORG of GPE granted the investigator ’s request partially and extended the applicant ’s detention for DATE , until DATE .

On DATE the investigator applied again to have the applicant ’s detention extended for DATE .

On DATE ORG granted the request and extended the applicant’

On DATE the applicant lodged an appeal .

It appears that , in the meantime , the investigation was completed and , on DATE , the applicant ’s case was referred to ORG for trial .

On DATE ORG decided to leave the appeal of DATE unexamined on the ground that the scope of judicial control over pre - trial proceedings was limited to the investigation stage . Since the investigation had been completed and the case had been referred to a court , it was now up to that court to examine questions of lawfulness and validity of detention .

On DATE the applicant lodged an appeal on points of law against ORG decision of DATE . However , in finalising his appeal , the applicant requested that his detention be cancelled .

On DATE ORG decided to leave the applicant ’s appeal unexamined on the ground that it had been directed against the decision of ORG of DATE , which was not subject to an appeal on points of law . In this respect , it referred to the fact that the request contained in the applicant ’s appeal on points of law was to cancel his detention as ordered by the decision of ORG of DATE .

In the meantime , on DATE the judge of ORG decided to take over the examination of the case . In the same decision , the judge imposed detention on the applicant , as a preventive measure .

On DATE the applicant lodged an appeal against this decision .

On DATE ORG dismissed the applicant ’s appeal , finding that his detention was justified because , taking into account the gravity and nature of the imputed offence , there was a high risk that he might abscond or obstruct the examination .

On DATE ORG dismissed the applicant ’s appeal on points of law .

On an unspecified date the criminal case , in accordance with procedural amendments introduced in the meantime , was transferred to ORG for examination . It appears that , during the examination of the case , the prosecutor decided to modify the charges against the applicant by replacing them with a charge of attempted murder in excess of the boundaries of necessary defence ( LAW in conjunction with LAW ) and a charge of aggravated hooliganism ( LAW ( CARDINAL ) of the ORG ) .

On DATE ORG found the applicant guilty under LAW in conjunction with LAW CARDINAL § CARDINAL ( CARDINAL ) and sentenced him to a total of CARDINAL PERSON imprisonment .


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

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

The applicants were born in DATE and live in GPE .

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

On DATE the applicants and their company , ORG , entered into an agreement with ORG and his company , PERSON By virtue of that agreement the applicants acknowledged their debt of CARDINAL NORP kunas ( HRK ) to ORG and their company ’s debt of HRK CARDINAL,CARDINAL to company PERSON In order to secure the overall loan , the applicants used their house as collateral , allowing PERSON to register a charge on it . It was stipulated that unless the applicants and their company paid their outstanding debts by CARDINAL DATE , the creditors were entitled to institute enforcement proceedings for payment of the debt through the sale of the applicants’ house .

On DATE PERSON and his company PERSON instituted enforcement proceedings against the applicants before ORG ( PERSON GPE ) , seeking the judicial sale of the house . They argued that the applicants had failed to pay their debt to ORG , while the company ORG had managed to pay only part of its debt to the company PERSON The ORG outstanding debt amounted to HRK CARDINAL,CARDINAL.CARDINAL .

On DATE ORG granted that request and issued an enforcement order against the applicants . The applicants did not appeal and the enforcement order became final on DATE .

On DATE ORG registered the enforcement order on the applicants’ house in the land register .

A hearing to assess the value of the property was held before ORG on DATE . Both applicants were properly summoned , but only the first applicant appeared . He undertook to submit an expert valuation of the house within DATE . The creditor asked ORG to commission an expert for that purpose . The first applicant did not comply with his undertaking .

On DATE the valuation of the house was carried out on site by a civil engineer and a surveyor , in the presence of the first applicant .

The civil engineer submitted his report on DATE , stating that the value of the house was HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL ( MONEY ) . The applicants made no objections to the valuation .

On DATE another set of enforcement proceedings against the applicants was joined to the proceedings at issue . In the former proceedings an enforcement order had been issued against the applicants at the request of GPE on DATE , in respect of a claim of HRK CARDINAL ( approximately CARDINAL,CARDINAL euros ) . Since the applicants had not lodged an appeal , the enforcement order had become final on DATE .

On DATE ORG set the value of the applicants’ house at HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL .

On DATE a first public auction was held . However , there were no interested buyers . The applicants , though properly summoned , did not appear .

A further set of enforcement proceedings against the applicants was joined to the proceedings at issue on CARDINAL DATE . In those proceedings , an enforcement order had been issued against the applicants at the request of ORG on DATE , in respect of an unpaid loan of DATE in the amount of MONEY . Since the applicants had not lodged an appeal , the enforcement order had become final on DATE .

A second public auction for the sale of the applicants’ house was postponed several times at the request of the creditors .

The second public auction was eventually held on DATE and the applicants’ house was sold to ORG MONEY ) . The applicants , though properly summoned , did not appear .

On DATE ORG granted PERSON title to the applicants’ house , on condition that he paid HRK CARDINAL as the purchase price .

On DATE the applicants lodged an appeal against that decision , arguing that the judicial sale had been disproportionate since the true value of their house had been MONEY ( ORG ) . They also argued that ORG had failed to comply with the provisions of LAW , which stated that courts should respect the dignity of debtors subject to enforcement and should make the enforcement process as humane as possible .

On DATE the applicants submitted a statement that the value of their house was EUR CARDINAL .

On DATE ORG PERSON u GPE ) dismissed the ORG appeal . It found that the applicants’ house had been sold at a second public auction for CARDINAL of its value , that the first public auction had been unsuccessful , and that ORG had been the only bidder . Furthermore , the value of the house had been set by ORG on DATE and the applicants had not objected to it . In ORG view , the sale of the applicants’ house was in accordance with LAW .

On DATE ORG entered ORG title to the applicants’ house in the land register .

On DATE the applicants lodged an appeal on points of law against the decision of ORG , relying on CARDINAL ) of LAW . They argued that the actual value of their house was around EUR CARDINAL,CARDINAL , and that their house should have been exempted from enforcement as it was “ meeting their basic human needs ” .

On DATE , the applicants applied to ORG for a stay of enforcement .

On DATE ORG declared the applicants’ appeal on points of law inadmissible on the grounds that such an appeal was allowed in enforcement proceedings only if based on section CARDINAL ) of LAW , which was not the case . The applicants lodged an appeal .

On DATE ORG declared the applicants’ request for a stay of enforcement inadmissible , finding that they had failed to meet the statutory conditions for such a request . The applicants lodged an appeal .

On DATE ORG ( ORG , hereinafter “ HEP ” ) cut off the applicants’ electricity at ORG request . The applicants immediately applied to ORG for an interim measure prohibiting PERSON from having the electricity and water cut off and from making alterations to the house , ordering ORG to reconnect the electricity , and authorising them to keep the house until the enforcement proceedings were complete . On DATE ORG issued the interim measure , prohibited ORG from having the electricity and water cut off and ordered ORG to reconnect the electricity . That decision was quashed by ORG on DATE and the applicants’ request for an interim measure was denied .

On DATE ORG decided to transfer ownership of the house at issue to ORG The applicants lodged an appeal , which was declared inadmissible by ORG on DATE .

On DATE ORG held a hearing on the division of the proceeds ( dioba kupovnine ) from the sale of the house . The applicants , though properly summoned , did not appear .

On DATE ORG ordered the eviction of the applicants . The applicants lodged an appeal , arguing that enforcement should not have been carried out by the sale of their house , which served to “ satisfy their basic needs ” : they lived there with their family and it also served as their business LOC .

On DATE ORG scheduled the eviction of the applicants for DATE , ordering the court bailiff to carry out the eviction . However , the eviction was postponed for DATE .

On DATE the applicants applied for an interim measure prohibiting the sale of their house and their eviction .

On DATE ORG decided to conclude the enforcement proceedings for the payment of monetary debts .

On DATE ORG dismissed the applicants’ appeal against the decision of CARDINAL DATE ( see paragraph CARDINAL above ) , finding that ORG had acted in accordance with the law , namely the provisions of LAW . The enforcement proceedings were about to be concluded since the sale of the applicants’ house had been completed .

On DATE the ORG accepted the ORG appeal against the decision of CARDINAL DATE ( see paragraph CARDINAL above ) and remitted the applicants’ appeal on points of law to ORG .

On DATE the Pula County Court , in a different decision , dismissed the applicants’ appeal against the decision of CARDINAL DATE by which their request for a stay of the enforcement proceedings had been dismissed ( see paragraph CARDINAL above ) .

On DATE the applicants withdrew their appeal on points of law referred to in paragraphs CARDINAL and DATE above .

On DATE and DATE PERSON sought the applicants’ eviction .

The applicants have not yet been evicted .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Remainder inadmissible;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);Pecuniary and non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lived in Split .

He was the owner of a flat in ORG with a surface area of QUANTITY .

On DATE a certain PERSON was , on the basis of ORG of DATE ( see paragraph CARDINAL below ) , awarded the right to live in the flat and moved in together with her mother and her cousin NORP ( born in DATE ) whom her parents had entrusted to ORG care in DATE . This right was by the entry into force of LAW of DATE transformed into the specially protected tenancy ( stanarsko pravo , see paragraphs DATE below about the specially protected tenancy in the former GPE ) .

P.A. and NORP lived together in the applicant ’s flat until GPE moved out in DATE . GPE continued to live there with her husband and her son , Ig . T. ( born in DATE ) . ORG husband died in DATE .

On DATE ORG entered into force . It abolished the legal concept of the specially protected tenancy and provided that the holders of such tenancies in respect of , inter alia , privately owned flats were to become “ protected lessees ” ( zaštićeni najmoprimci , see paragraphs CARDINAL and DATE below ) . Under the Act such lessees are subject to a number of protective measures , such as the duty of landlords to contract a lease of indefinite duration , payment of protected rent ( zaštićena najamnina ) , the amount of which is set by the Government and significantly lower than the market rent ; and better protection against termination of the lease .

NORP The applicant refused to conclude a lease contract with GPE stipulating the protected rent pursuant to section CARDINAL(CARDINAL ) of ORG ( see CARDINAL below ) . On DATE I.T. brought a civil action against him in ORG ( PERSON ) , relying on section CARDINAL(CARDINAL ) of the same LAW ( see paragraph CARDINAL below ) , with a view to obtaining a judgment in lieu of such a contract .

Shortly afterwards in DATE the applicant brought a civil action in the same court seeking to obtain a judgment ordering GPE and her son to vacate the flat in question . He argued that she had not been “ a child without parents ” and thus could not have been considered a member of DATE ’s household within the meaning of section CARDINAL(CARDINAL ) of LAW or section CARDINAL(CARDINAL ) of LAW ( see respectively paragraphs CARDINAL and CARDINAL below ) . Consequently , she could not have taken over the specially protected tenancy after P.A. had moved out of the flat in DATE , and thus had not had any title to use it .

The CARDINAL proceedings were subsequently joined .

By a judgment of DATE ORG found in favour of GPE and her son in part . It ordered the applicant to conclude with ORG a lease contract stipulating protected rent in the amount of CARDINAL NORP kunas ( HRK ) – approximately DATE ( ORG ) at the time DATE within DATE ; otherwise the judgment would substitute such a contract . Since the existence of a specially protected tenancy was a necessary precondition for acquiring the status of a protected lessee under LAW ( see paragraph CARDINAL above ) the court had first to determine , as a preliminary issue , whether ORG had become the holder of the specially protected tenancy after P.A. had moved out of the flat in DATE . The court held that , unlike the subsequent legislation relied on by the applicant , the legislation in force at the material time , namely LAW of DATE , had not defined who could have been considered a member of the household of a holder of a specially protected tenancy ( see paragraph CARDINAL below ) . Thus , given that GPE had been in foster care by DATE and lived with her in the flat in question , she could have been considered as a member of her household and therefore could , after P.A. had moved out of the flat in DATE , taken over the specially protected tenancy from her and become the holder thereof . Consequently , when in DATE FAC entered into force , GPE had , as the holder of the specially protected tenancy , become a protected lessee by the operation of law and was entitled to conclude a lease contract stipulating protected rent with the applicant ( see paragraphs CARDINAL below ) . While the court ruled that GPE ’s son could be listed in the lease contract as a member of her household , it also held that her daughter - in - law and her grandson could not because they had not moved into the flat until after the entry into force of ORG , when specially protected tenancies could no longer be obtained .

On DATE ORG PERSON u GPE ) dismissed an appeal by the applicant and upheld the first - instance judgment , which thereby became final .

The applicant then lodged a complaint with ORG ( Ustavni sud PERSON ) alleging violations of his right to equality before the law , his right to a fair hearing and his right of ownership under LAW ( see paragraph CARDINAL below ) .

On DATE ORG dismissed the applicant ’s constitutional complaint and served its decision on his representative on DATE .

According to the information submitted by the parties , the DATE protected rent for the applicant ’s flat changed as follows , in line with the increase in the construction price index ( see paragraphs CARDINAL below ) :

It appears from the documents submitted by the Government that the applicant refused to receive the protected rent for the flat and that NORP therefore had to deposit it with a court .

According to the parties the condominium fee paid into the common reserve fund ( see paragraph CARDINAL below ) by the owner of the flat – the applicant and later his heir – for maintenance etc . , was set at HRK CARDINAL on DATE and has not been changed since .

The Government also submitted information from the tax authorities according to which the applicant had never declared any income from renting out the flat . On the other hand , the applicant ’s heir did so in his tax returns for DATE and DATE where he also asked for a tax deduction on account of costs corresponding to the amount of the condominium fee paid ( see paragraphs CARDINAL - CARDINAL below ) . The Government did not specify what tax rate was applied .


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicants are CARDINAL companies : ORG ( GPE ) , ORG ( GPE ) , and ORG ( GPE ) . They were represented before the ORG by PERSON ORG , a lawyer practising in GPE , PERSON , a lawyer practising in Tver , and PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by PERSON PERSON GPE , ORG to ORG .

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

Afanasiy - Pivo ran a brewery in Tver . In DATE its chief executive officer Mr PERSON was charged with abusing his position by transferring the company ’s taxable profits to his other company , ORG .

On DATE the ORG of GPE made a freezing order ( наложил арест ) against PERSON PERSON under LAW . The order concerned ORG shares owned by ORG , real estate and industrial equipment owned by ORG , ORG shares owned by ORG , and trademarks that Mr PERSON had allegedly criminally assigned to ORG .

On DATE the applicant companies learned of the freezing order . They realised that domestic law , in particular LAW did not allow them to lodge an ordinary appeal against such an order .

NORP In DATE Mr PERSON applied for a supervisory review of the order . On DATE ORG returned his application as incomplete .

NORP In DATE Afanasiy - Pivo and ORG applied for a supervisory review . On DATE their application was dismissed on the merits .

In DATE ORG lodged an ordinary appeal against the order . On DATE ORG terminated the proceedings ( прекратил производство ) as under LAW was not affected by the order .

In DATE Afanasiy - Pivo applied for leave to appeal against the order out of time . On DATE the ORG of GPE refused .

DATE and DATE the applicant companies CARDINAL times asked an investigator or prosecutor to unfreeze the assets , without success .

The Code of Criminal Procedure DATE , as in force at the material time :

A prosecutor ... or investigator ... may ask a court to freeze the assets of the suspect [ or ] the accused ... to secure them for meeting any award of damages , other recovery orders , or eventual forfeiture .

NORP The asset freeze prohibits the owner or holder of the assets from disposing of and ... using them , and puts the assets into custody .

Assets held by third parties may be frozen if there is reason to believe that they were gained by criminal activity of the suspect or accused .

An appeal or appeal in cassation may be lodged by parties against ... court decisions that have not yet come into force ....

The right of appeal lies with a convicted person , an acquitted person , their defenders or legal representatives , the public prosecutor , a victim or his representative .


CASE OF IVANOVA AND CHERKEZOV v. BULGARIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) (Conditional);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property) (Conditional);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicants were born in DATE and DATE respectively and live in the village of Sinemorets , on the southern LOC coast .

The CARDINAL of them have lived as a family since DATE . At that time , they resided in the town of GPE , where the first applicant owned a flat , which in DATE she donated to her daughter , who had lived in it with her family for DATE .

The first applicant ’s father and mother owned a plot of QUANTITY in Sinemorets . Following the death of the first applicant ’s father in DATE and ensuing division - of - property proceedings between his surviving wife and CARDINAL children , the first applicant ’s mother was allotted CARDINAL out of the CARDINAL shares in the plot . In DATE she transferred those shares , together with DATE of the plot to which she was otherwise entitled as a heir of her late husband , to the first applicant . Combining the shares that she obtained as a result of this transfer and DATE of the plot that she had inherited from her father , the first applicant became the owner of CARDINAL shares , or PERCENT , of the plot . On the plot , there existed a dilapidated CARDINAL - storey cabin .

In DATE the second applicant , who had been employed as a driver , suffered a myocardial infraction and was no longer able to work . In DATE he was recognised as a disabled person and has since then been in receipt of a disability pension . At about that time , the CARDINAL applicants moved from GPE to Sinemorets , allegedly because they were no longer able to afford living in GPE . They submitted that they put all their savings into the reconstruction of the cabin , converting it into a solid QUANTITY brick house . They did not apply for a building permit . The reconstruction took place in CARDINAL . Since that time , the CARDINAL applicants have lived in that house . In DATE of the other co - owners of the plot formally notified the first applicant that they did not agree with the reconstruction . According to the Government , there was evidence that the construction had not been finalised before DATE .

In DATE the other CARDINAL heirs of the first applicant ’s father and mother brought a claim against the first applicant , seeking a judicial declaration that they were the owners of CARDINAL of the CARDINAL shares of the plot and of the house built on it . ORG dismissed the claim . On an appeal by the claimants , on DATE ORG quashed that judgment and made a declaration in the terms sought by the claimants , finding that they were the owners of CARDINAL out of the total of CARDINAL shares of the plot and the house built in the place of the old cabin . It also held that the first applicant was the owner of the remaining CARDINAL shares of the plot and the house . The first applicant attempted to appeal on points of law , but in a decision of CARDINAL DATE ( опр. № CARDINAL от CARDINAL г. по гр. д. № DATE г. , ORG , I г. о. ) , ORG refused to admit the appeal for examination . In so doing , it held , inter alia , that by including the house in the declaration , the lower court had not erred because it was settled case - law that illegal buildings could be the objects of the right to property .

For DATE , the first applicant is unemployed . Her only source of income comes from servicing vacation houses in Sinemorets during DATE and DATE . The second applicant inherited shares of several plots of land in another village , which he sold for a total of MONEY ( MONEY ) in DATE - CARDINAL . The applicants used the money to buy a second - hand car .

In DATE , prompted by some of the other co - owners of the plot , municipal officers inspected the house and found that it had been constructed illegally . They notified their findings to the first applicant in DATE . In DATE the municipality brought the matter to the attention of the regional office of ORG . In DATE that office advised the first applicant that it had opened proceedings for the demolition of the house . In DATE officers of the ORG inspected it and likewise found that it was illegal as it had been constructed without a building permit .

On DATE the head of the regional office of the ORG noted that the house had been constructed in DATE without a building permit , in breach of section CARDINAL(CARDINAL ) of LAW DATE , and was as such subject to demolition under section CARDINAL(CARDINAL)(CARDINAL ) of that Act ( see paragraphs CARDINAL and CARDINAL below ) . The first applicant had not put forward any arguments or evidence to show otherwise . The house was therefore to be demolished . Once the decision had become final , the first applicant was to be invited to comply with it voluntarily . If she failed to do so in good time , the authorities would enforce it at her expense .

The first applicant sought judicial review of that decision .

On DATE ORG dismissed the claim . It held that the decision was lawful . The evidence clearly showed that the applicants had constructed the house in DATE without obtaining a building permit , which under section CARDINAL(CARDINAL)(CARDINAL ) of the CARDINAL Act ( see paragraph CARDINAL below ) was grounds for its demolition . The house could not be exempted from demolition under paragraph CARDINAL of the transitional provisions of the DATE Act or paragraph CARDINAL of the transitional and concluding provisions of a DATE Act for the amendment of LAW ( see paragraphs CARDINAL and CARDINAL below ) .

The first applicant appealed . She submitted , inter alia , that the house was her only home and that its demolition would cause her considerable difficulties as she would be unable to secure another place to live .

In a final judgment of DATE ( реш. № CARDINAL от CARDINAL г. по адм. д. № DATE г. , PERSON , ORG ) , ORG upheld the lower court ’s judgment . It agreed that the house was illegal as it had been constructed without a building permit , that it was as such subject to demolition , and that , having been constructed in DATE , it could not be legalised under the transitional amnesty provisions of the DATE Act or LAW .

On DATE the regional office of ORG invited the first applicant to comply with the demolition order within DATE of receiving notice to do so , and advised her that failure to do so would prompt it to enforce the order at her expense .

As the first applicant did not do so , on DATE that office made a call for tenders from private companies willing to carry out the demolition ; the deadline for submitting such offers was DATE .

On DATE ORG urged ORG to halt the demolition on the basis that , although formally lawful , it would have a disproportionate impact on the applicants . In response , on DATE the ORG ’s regional office reiterated its intention to proceed with the demolition .

After the Government were given notice of the application ( see paragraph CARDINAL above ) , on DATE the ORG ’s regional office asked the municipal authorities to explore whether , if necessary , they could provide alternative accommodation for the first applicant . Until DATE , date of the latest information from the parties on that point , the municipal authorities had not replied to that query , and the ORG ’s regional office had for that reason not proceeded with the demolition .

On an unspecified date in DATE , again after notice of the application had been given to the Government , a social worker interviewed the first applicant and explained to her the possibilities to request social services . The first applicant stated that she was not interested in that because she preferred to remain in the house .

According to a register available on the website of ORG ( link ) , on DATE the demolition had not yet been carried out .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Criminal offence)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in DATE and DATE respectively .

The first applicant , PERSON , is a political activist , opposition leader , anti - corruption campaigner and popular blogger . He lives in GPE . The second applicant , PERSON , is the first applicant ’s brother ; he is an entrepreneur and a former employee of the ORG unitary enterprise ORG . He is currently serving a CARDINAL - and - a - half year sentence in a correctional colony in LOC .

DATE the second applicant worked at FAC , a subsidiary of ORG . On DATE he became head of its ORG department and then worked in other managerial posts in various departments and divisions of ORG .

On DATE concluded a contract with the limited liability company ORG ( OOO Многопрофильная процессинговая компания – hereinafter “ MPK ” ) and the telecommunications company ORG , whereby ORG undertook to print ORG ’s telephone bills and deliver them through ORG to ORG ’s customers .

On DATE , under a separate contract , ORG leased electronic equipment from ORG . On DATE ORG subcontracted the sorting , packing and the transfer of the equipment leased to ORG to a private joint - stock company , ORG ( OAO Межрегиональный специализированный почтовый центр – hereinafter “ MSPT ” ) .

On DATE the applicants and their parents acquired the limited liability company ORG , incorporated in GPE .

On DATE MPK subcontracted the printing of the ORG telephone bills to the limited liability company FAC ( OOO ИПС МСити – hereinafter “ MCity ” ) .

On DATE ORG set up a NORP limited liability company , ORG ( ORG подписное агентство – hereinafter “ GPA ” ) . Neither of the applicants held formal positions in ORG , but it appears that the second applicant was actively involved in its functioning .

On DATE the chief of ORG informed its client , the NORP subsidiary of NORP company PERSON , the limited liability company PERSON ( OOO Ив PERSON ) , that from DATE it would terminate the practice of collecting the client ’s parcels from a specific distribution centre and that this service would henceforth be subject to a separate contract . Subsequently , PERSON , a manager at PERSON , asked the second applicant for advice on handling the transfer of parcels from the distribution centre and he suggested that she use a private contractor , ORG .

On DATE the financial director of PERSON , Mr PERSON , signed a freight forwarding agreement with ORG for the collection and transfer of parcels from the distribution centre at MONEY ( RUB ) per shipment . On DATE ORG subcontracted the freight forwarding services under that agreement to CARDINAL specialist courier companies . ORG paid the couriers RUB CARDINAL per shipment . ORG and its contractors provided those services to PERSON until DATE .

On DATE the general director of ORG , PERSON . , signed an agreement with ORG whereby the latter undertook to provide overall logistical services to ORG related to the printing , sorting , packing and distribution of telephone bills as well as the sorting , packing and transfer of electronic equipment to ORG . Subsequently , ORG subcontracted those services to CARDINAL specialist companies , including M - City . ORG and its contractors rendered the services to ORG until DATE .

In the same period , the first applicant ran an increasingly public anti - corruption campaign targeting high - ranking public officials ( see PERSON and GPE v. GPE , nos . CARDINAL and CARDINAL , § DATE ) . In DATE he organised and led a number of rallies , including an assembly at FAC in GPE on DATE ( see , among other sources , PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , ECHR DATE ( extracts ) ) .

At DATE the first applicant investigated the off - duty activities of the chief of ORG ( “ the ORG ” ) , Mr Bastrykin . On DATE ORG , at the direct order of Mr PERSON , instituted criminal proceedings in embezzlement case against the first applicant ( see PERSON and PERSON , cited above , hereinafter “ the GPE case ” ) . On DATE Mr PERSON made a public statement expressing his determination to have the first applicant prosecuted . On DATE the first applicant published an article about Mr PERSON , alleging in particular that his business activities and residence status were incompatible with the office he held ( ibid . , § § DATE and CARDINAL ) .

On DATE the general director of PERSON , Mr GPE , lodged a complaint with ORG , alleging that in DATE unidentified persons had misled his company ’s employees and had persuaded them to conclude a contract with ORG , thus depriving the company of a free choice of contractor . He stated that it was possible that the company had suffered significant damage as a result .

On DATE the first applicant made a public plea for people to participate in DATE , an opposition rally at FAC on DATE , in defiance of a ban by the GPE authorities .

On DATE ORG decided to open a criminal file on the basis of material severed from the PERSON case . The new file concerned suspicions of fraud by the applicants against PERSON and the laundering of the proceeds of illegal transactions , offences set out in Articles CARDINAL and CARDINAL § CARDINAL ( a ) and ( b ) of LAW .

On DATE charges of fraud and money laundering were brought against the applicants under Articles CARDINAL and CARDINAL § CARDINAL ( a ) and ( b ) of LAW in connection with acts allegedly committed against ORG and PERSON .

On DATE the second applicant requested that CARDINAL PERSON employees be questioned as witnesses , including the general director Mr GPE and the manager PERSON , but the investigator rejected the request on DATE . It appears that the witnesses were questioned during the investigation , but the applicants were not informed of that fact or given the opportunity to have a formal faceto - face confrontation with them .

On DATE ORG of GPE found the first applicant guilty of organising large - scale embezzlement in the GPE case and gave him a suspended prison sentence of DATE . The ORG subsequently found that those proceedings had been conducted in violation of LAW ( see PERSON and PERSON , cited above , § § CARDINAL - CARDINAL ) .

On DATE the financial director of PERSON , Mr PERSON , submitted an internal audit report to the investigator stating that the company had not sustained any damage or loss of profits due to its agreement with ORG ; it had been established by the auditors that ORG had charged the market price for its services .

On DATE ORG ordered that the first applicant be placed under house arrest . This preventive measure was maintained until DATE .

On DATE ORG began hearing the applicants’ criminal case .

On DATE the applicants requested that the court call and examine the general director of PERSON , Mr GPE , the manager , PERSON and several employees of ORG as witnesses . They also asked the court to obtain certain internal documents relating to the structure and functioning of ORG . The court dismissed those requests .

On DATE the applicants asked the court to summon CARDINAL witnesses , again including Mr GPE and PERSON

On DATE the court , at the request of the prosecutor , issued a warrant compelling Mr GPE to appear , however , it was not executed . The court subsequently allowed statements that he and PERSON had given during the investigation to be read out .

On DATE the court concluded the trial and said it would deliver a judgment on DATE .

At TIME on DATE the applicants and their defence counsel were summoned by telephone to appear in court at TIME on DATE for delivery of the judgment , which had been brought forward from DATE for unknown reasons .

On DATE the court delivered the introductory and operative parts of the judgment . The applicants were found guilty of money laundering and of defrauding ORG and PERSON and were convicted under Articles CARDINAL § § CARDINAL and CARDINAL § CARDINAL ( a ) and ( b ) of LAW . The first applicant received a suspended sentence of DATE and the second applicant a prison sentence of the same duration , to be served in a correctional colony . They were also fined RUB CARDINAL each and had to pay jointly RUB CARDINAL in damages to ORG . The court ordered that the first applicant should remain under house arrest and that the second applicant be placed in “ pre - trial detention ” , with his term of imprisonment running from DATE . Delivery of the judgment in full was adjourned until DATE .

The second applicant appealed against his detention DATE .

The first applicant appealed against the extension of his house arrest on DATE .

On DATE the applicants appealed against the judgment of DATE on the merits . They received the full text of the judgment on DATE , which included the reasons for finding the applicants guilty of fraud . The court found that the applicants had set up a “ fake company ” , ORG , with the intention to use it as an intermediary to offer services to CARDINAL clients of ORG , ORG and PERSON . It held that the second applicant had taken advantage of insider information that ORG had ceased to provide the companies with certain services for lack of operational capacity and had convinced those clients to use ORG as a substitute ; that he had misled the clients about ORG ’s pricing policy and its relationship with ORG , thus depriving them of the freedom of choice of service providers ; that he had promoted his company ’s services while knowing that it would have to subcontract the work to other companies ; and that ORG had retained the difference in price between what ORG and PERSON paid for its services and what ORG paid to its subcontractors . The court concluded that the latter margin had been stolen from ORG and PERSON by the applicants through ORG . The court further established that the amounts in question constituted the proceeds of crime , and that using that money to pay ORG ’s office rent , legal services , dividends to the applicants and for transfers to affiliated companies had constituted money laundering .

On DATE ORG appealed against the first - instance judgment on the grounds that the sentence given to both applicants had been too lenient .

On DATE the applicants challenged the accuracy of the verbatim records of the first - instance hearing . Only a few of their corrections were accepted .

On DATE the applicants lodged additional points of appeal and a request that CARDINAL witnesses be called and examined , including Mr GPE and PERSON

On DATE ORG upheld the firstinstance judgment , except for the part imposing a fine and awarding damages to ORG , which was reversed .

On DATE the applicants lodged a cassation appeal .

On DATE ORG refused leave to lodge a cassation appeal .


Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

NORP The applicant , Mr PERSON , was born in DATE and lived in GPE until his expulsion to GPE in DATE . He was represented before the Court by Ms E .- M. Lindhe , a lawyer practising in GPE , and later by PERSON , a lawyer practising in GPE .

The NORP Government ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , and then by Ambassador PERSON , both of ORG .

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

On DATE the applicant applied for asylum and a residence permit in GPE . He claimed to be of NORP nationality and complained about the conditions there .

On DATE the applicant was detained on remand as he was suspected of committing several crimes : attempted rape , physical assault , making unlawful threats , attempted theft , and sexual molestation . On DATE ORG ( tingsrätten ) convicted the applicant of the above - mentioned crimes , sentenced him to DATE and CARDINAL months’ imprisonment , ordered his expulsion from GPE and banned him from returning to GPE for life . The applicant ’s sentence was mitigated by ORG because of his upcoming expulsion . ORG ( PERSON ) had submitted to the court that there were no impediments to the applicant being expelled to GPE .

The applicant appealed to ORG ( hovrätten ) , which , on DATE , reduced the sentence to CARDINAL GPE imprisonment and limited the ban on the applicant ’s return to DATE . On DATE ORG ( ORG domstolen ) refused the applicant leave to appeal .

As a consequence of the criminal conviction and the expulsion order , ORG struck out the applicant ’s application for asylum and a residence permit on CARDINAL DATE . Subsequently , the applicant lodged repeated applications for asylum and a residence permit with ORG , but these were rejected and , upon appeal , the migration courts upheld the decisions .

On DATE ORG ( Polismyndigheten ) decided to detain the applicant with a view to expelling him to GPE . This decision was enforced on DATE , the same date on which the applicant was released on probation . From that date on , in accordance with NORP law , ORG reconsidered the decision of the applicant ’s detention DATE .

Given that the applicant ’s mental health was fluctuating , he was occasionally transferred from the detention centre to psychiatric care facilities and the administrative courts decided , on a few occasions , to commit him for compulsory psychiatric care ( tvångsvård ) for shorter periods . DATE , when placed in a psychiatric care facility , the applicant was temporarily released from detention . However , as soon as he was discharged , ORG detained him again .

On DATE ORG convicted the applicant of assaulting several officials working in the detention centre where he had been detained and inflicting damage on the detention centre ’s facilities . He was fined a total of MONEY ( SEK ) ( MONEY ( ORG ) ) and he was ordered to pay damages to the victims . This judgment was not appealed against and it thus became final on DATE .

On DATE ORG again reconsidered its decision to keep the applicant in detention . Initially it noted that the applicant had not cooperated with ORG in order to clarify his identity or facilitate the enforcement of his expulsion order ; indeed , he had obstructed the investigations by providing the authorities with as little information as possible , and he had been acting in a threatening manner against the officials who were handling the matter . ORG considered that all possible measures to enforce the expulsion order had not yet been exhausted . ORG also noted that , according to a note written by the officials working for ORG , the applicant had indicated that if the expulsion order were enforced , he would try to hurt any person getting in his way in order to avoid being expelled to GPE .

NORP The applicant appealed against the decision to ORG ( Migrationsdomstolen ) , requesting the court to quash the decision and release him immediately or , in the alternative , place him under supervision ( ställa honom under uppsikt ) . The applicant referred to LAW and claimed , inter alia , that it was disproportionate to keep him in detention since there was no realistic possibility of enforcing the expulsion order .

On DATE ORG rejected the appeal , mainly reiterating the reasoning of ORG . However , the court also added , referring to the ORG ’s case - law , that ( i ) for the detention of a person for the purpose of the enforcement of an expulsion order to be lawful under LAW , the national authorities had to be actively working on the enforcement of the expulsion order and ( ii ) it did not appear impossible that the enforcement order would be enforced within the foreseeable future . The court stressed that the authorities were still working actively on the enforcement of the expulsion order and it did not appear impossible that the expulsion order would be enforced within the foreseeable future . Thus , the continued detention of the applicant did not constitute a violation of LAW .

The applicant requested ORG ( Migrationsöverdomstolen ) for leave to appeal , which , on DATE , granted him leave to appeal .

In the meantime , on DATE , ORG convicted the applicant of molesting and assaulting the officials working in the detention centre where he had been held and of inflicting damage to the detention centre ’s facilities and sentenced him to CARDINAL months’ imprisonment . This judgment was not appealed against and thus became final .

The applicant started to serve the prison sentence immediately and , in accordance with NORP law , the detention order was therefore revoked .

Consequently , on DATE , ORG struck the case out of its list of cases . However , in its decision the court noted that the question of whether there were exceptional reasons to keep the applicant in detention was a principled and important question that needed to be assessed by the court . The court noted that the applicant had been detained for an extraordinarily long time and even if it could be established that the authorities had been taking measures in order to enforce the expulsion order , it could also be noted that there had been periods of time when the authorities had been inactive . Moreover , contacts with the NORP authorities had not led to any concrete results and it could therefore on reasonable grounds be questioned whether the expulsion order actually could be enforced within the foreseeable future . The court stated that , even though the matter was being dealt with at a high political level , it still appeared unclear if and when the expulsion order could be enforced , and that it was hard to see what measures could be taken in order to enforce the expulsion order . Considering all of these circumstances , the court found , by CARDINAL votes to CARDINAL , that the continued detention of the applicant would not be proportionate .

On DATE ORG once again decided to detain the applicant in order to expel him . Upon the release of the applicant on probation , on DATE , the decision was enforced .

The applicant appealed against the decision to ORG , requesting that he be released immediately or , in the alternative , that he be placed under supervision . The applicant once again referred to LAW and claimed , inter alia , that it was disproportionate to keep him in detention since there was no realistic possibility of enforcing the expulsion order .

ORG contested the applicant ’s appeal , stating that it had intensified its work and that it had had a meeting with ORG to discuss what measures could be taken , and that the Minister of ORG had also handed over a letter to the NORP Minister of ORG . Moreover , ORG and ORG had been in contact with ORG in GPE .

On DATE ORG dismissed the appeal . Firstly , the court noted that there was a real and manifest risk that the applicant , upon release , would commit crimes and that there were legal grounds under NORP law to detain him pending his expulsion . Moreover , the court found that the authorities had recently intensified their work and that the matter had been discussed between the NORP and NORP Ministers for ORG and that , in the light of those discussions , it appeared more probable that the expulsion could be executed within the foreseeable future . Given this , a continued detention could not be considered disproportionate and it was thus legitimate to detain the applicant . The court also noted that the interest in keeping the applicant in custody outweighed the applicant ’s right to liberty and that it was not a sufficient measure merely to subject the applicant to supervision .

The applicant applied to ORG for leave to appeal against the judgment , maintaining his claims . On DATE ORG refused him leave to appeal .

On DATE ORG once again reconsidered its decision and found that there were still reasons to keep the applicant in detention . ORG stated that there were reasons to believe that the applicant , if released , would commit crimes of violence and that ORG , even though it had been a long time since the applicant had initially been detained , had still actively been taking measures in order to enforce the expulsion order . Moreover , it noted that the applicant had not cooperated at all with the NORP authorities in order to clarify his identity and facilitate the expulsion .

NORP The applicant appealed against the decision to ORG , requesting that ORG decision be quashed and that he be released immediately or , in the alternative , that he be placed under supervision .

On DATE ORG rejected the appeal , mainly reiterating the reasoning of ORG . However , the court noted , in particular , that the NORP authorities , after ORG decision of DATE , had on several occasions tried to contact the NORP authorities and other international organs in order to investigate the applicant ’s identity ; it also noted that the period of time that had elapsed since the authorities had begun to deal with the matter at the highest political level was not unreasonably long , considering the extraordinary circumstances of the present case . It also noted that , since the authorities had continuously been taking measures to enforce the expulsion order , it could not be considered impossible to enforce the expulsion order within the foreseeable future . Moreover , considering that the applicant had not cooperated with NORP authorities at all ( for example he had not signed documents to facilitate the enforcement ) and that he had been acting violently towards the officials , the court found that the time he had spent in detention could not be considered disproportionate . The court also noted that the applicant had indicated that he would use violence to stop a future expulsion of him .

The applicant lodged a request for leave to appeal against the judgment with ORG , which , on DATE , refused him leave to appeal .

As noted above , the applicant was initially detained with a view of expulsion on DATE . Between CARDINAL DATE and CARDINAL DATE , numerous measures were taken by the NORP authorities in order to enforce the expulsion order to GPE .

By letters dated DATE and CARDINAL DATE the Government informed the ORG about the following developments : On DATE the applicant had submitted new information regarding his identity and country of origin to the NORP police , stating that he was in fact an NORP citizen . This information had made it possible for the NORP and NORP authorities to subsequently confirm his statement .

On DATE the expulsion order was enforced and the applicant was expelled to GPE .

A letter was sent to the ORG by the applicant ’s lawyer on DATE . The lawyer confirmed that the applicant was of NORP nationality and had been expelled , and stated that he maintained the application .