Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

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

The first applicant , Mr PERSON , was born in DATE and lives in GPE .

On DATE Mr PERSON applied to ORG for a travel passport which would allow him to go abroad .

On DATE ORG of GPE convicted him of smuggling and sentenced him as follows :

“ ... the penalty in the form of CARDINAL PERSON imprisonment is not to be enforced and is to be considered conditional with a DATE period .

To require Mr PERSON to report twice a DATE during DATE to the authority in charge of execution of conditional sentences , and to inform [ that authority ] of any change of residence ... ”

On DATE his application for a travel passport was refused by reference to the fact that he had been given a suspended threeyear sentence whose period of suspension had not yet expired .

On DATE ORG upheld the refusal as lawful , finding as follows :

“ The argument by Mr PERSON to the effect that ORG judgment of DATE contained an exhaustive list of restrictions during the probation period which did not include a restriction on leaving GPE and which was not , in the claimant ’s view , subject to expansive interpretation by ORG officials , does not contradict section CARDINAL(CARDINAL ) of the Entry and Exit Procedures Act which provides for a restriction on the right to leave for abroad in cases of both actual custodial and suspended sentences . A person who is given a suspended sentence is a convicted offender serving a sentence , and may be relieved from punishment only after the period of suspension has expired . Mr PERSON ’s period of suspension expires on DATE and after its expiry Mr PERSON ’s criminal conviction will be spent in accordance with LAW . Until that time Mr PERSON is an offender serving a sentence , which is a ground for restricting his right to leave for abroad . ”

On DATE ORG rejected an appeal against ORG judgment . It held :

“ The arguments that Mr PERSON was subjected to restrictions that go beyond those imposed by his conviction and that he was compelled to serve the sentence within GPE , whereas he needed to take care of his business interests and perform his duties abroad , are not grounds for setting aside the correct judgment [ of the first - instance court ] . ”

The second applicant , Mr PERSON , was born in DATE and lives in GPE .

On DATE ORG of GPE convicted PERSON of extortion and sentenced him to CARDINAL GPE imprisonment , suspended for DATE . He was released in the courtroom . On DATE ORG upheld the conviction on appeal .

On DATE ORG refused Mr PERSON ’s application for a travel passport , noting that he had been arrested on CARDINAL DATE and that , according to the available information , the criminal proceedings against him were still pending .

NORP The applicant Mr PERSON applied for judicial review of the refusal .

On DATE ORG of GPE upheld the refusal as lawful :

“ ... for the time being the conviction of DATE is not yet spent , Mr PERSON is a convicted offender , and , accordingly , the refusal [ of travel documents ] does not violate his rights ” .

On DATE ORG rejected the appeal , endorsing the reasoning of ORG .

On DATE ORG refused him leave to appeal to the cassation instance .


CASE OF GALAIDA AND COPOSCIU v. THE REPUBLIC OF MOLDOVA

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

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 and of the lack of any effective remedy in domestic law .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate facilities;Adequate time;Preparation of defence;Article 6 - Right to a fair trial)

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

The applicant was born in DATE and is currently being detained in a correctional colony in the village of GPE , GPE , GPE .

On DATE the applicant was convicted during a public hearing of murder and was sentenced to imprisonment . He and his lawyer had had TIME to study the case file , which consisted of CARDINAL volumes . The conviction was upheld on appeal in a public hearing on DATE ( “ the DATE proceedings ” ) .

On DATE the appeal judgment was quashed by way of a supervisory review ( on grounds not related to the applicant ’s Article CARDINAL complaints in respect of the DATE proceedings ) as the applicant ’s right to defence had been breached during the appeal hearing . The case was sent for fresh examination on appeal .

The applicant was allowed to re - read the case file within the new appeal proceedings . He and his lawyer had DATE , from CARDINAL to CARDINAL October CARDINAL , to study the now CARDINAL - volume case file ( CARDINAL pages ) in remand prison no . ORG in GPE , where the applicant was being detained . The applicant was allegedly held in a metal cage while studying the case , without a table or any other facilities to take notes . After studying the case file both the applicant and the lawyer filed appeals . In his appeal statements the applicant analysed the case materials in detail , referred extensively to all the main items of evidence , including expert opinions and witness testimony , and referred to exact pages in the case file .

The applicant ’s case was examined by ORG ( “ the ORG ” ) over QUANTITY hearings , CARDINAL of which ( DATE , CARDINAL DATE and CARDINAL DATE ) , according to the trial record and the court ’s procedural decisions , were held in camera . The case file did not contain any formal decision by ORG to close the hearings to the public . The applicant was represented by CARDINAL lawyers who confirmed to the court that they had had enough time to study the case file .

On DATE ORG upheld the judgment of CARDINAL DATE . ORG judgment was delivered to the remand prison , where the applicant was still being detained , on DATE ( “ the DATE proceedings ” ) .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage)

Alena Poláčková;Branko Lubarda;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

From DATE onwards the applicant , a former police officer discharged for health reasons , enjoyed disability benefits under ORG ( Wet op de Arbeidsongeschiktheidsverzekering – “ PERSON ” ) . He was allowed to earn by his own means a sum not exceeding MONEY ( NLG ) without losing his entitlement under the ORG . This he did by running a CARDINAL - man business as a trainer teaching people how to deal with stress .

The applicant states that he entered into an arrangement with an official of the competent social - security authority ( at that time called NORP ) , CARDINAL PERSON , which was intended to make possible his transition into independent self - employment without the need for additional social security benefits . He alleges that PERSON gave him the assurance that he would be permitted for a period of DATE to earn income over and above the sum of NLG CARDINAL , the purpose being to allow him to create cash reserves in case his health should deteriorate further . The agreement had been witnessed by another official , CARDINAL Mr S.

NORP In DATE the applicant announced his intention to continue his business in the form of a limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) . He wrote to the social - security authority ( re - named ORG and ORG ( Uitvoeringsinstelling sociale zekerheid voor overheid en onderwijs ; “ USZO ” ) ) asking it to confirm that this change would not affect the arrangements made during the time when he was self - employed . In the ensuing domestic proceedings the social security authorities submitted one or more letters which they stated had been sent in response , including CARDINAL dated DATE denying the applicant the confirmation sought . The applicant states that he never received any reply .

In DATE the applicant ’s business was transformed into a limited liability company . The shares were held by the applicant ’s wife . The applicant was its managing director and its only employee ; he entered its employ on DATE .

On DATE Mr D. , an official of the social - security authority ( by this time re - named LAW ( NORP werknemersverzekeringen ; “ ORG ” ) ) submitted an extensive investigation report implicating the applicant and his wife in suspected social - security fraud . According to the report , the applicant had defrauded the social - security system by declaring only his own income as an employee of the limited liability company but not the company ’s profits , which were declared as taxable income by his wife . The report included the following passage :

“ It was arranged in addition that only what PERSON earned in self - employment after his discharge would be considered his residual earning capacity ( resterende verdiencapaciteit ) . The labour expert ( arbeidsdeskundige ) PERSON has stated that he discussed this extensively with PERSON , who could agree to that position and who indicated during the conversation that in DATE more growth was to be expected and that it was his intention to make his own living in self - employment with a corresponding gradual reduction to CARDINAL ( afbouw ) of the ORG benefits . ”

On DATE ORG gave a decision reducing the applicant ’s PERSON benefits with retroactive effect . On DATE ORG gave a second decision ordering the applicant to repay the excess .

The applicant lodged objections ( bezwaar ) against both decisions . As relevant to the case before the ORG , the applicant argued that as from DATE he had kept the competent authorities informed of developments as they occurred , withholding no information , and invoked the arrangement which he had agreed with PERSON He named PERSON as a witness .

Having held a hearing on DATE , ORG gave a decision on DATE dismissing the applicant ’s objections . It found that the applicant could reasonably have been aware that the total of his additional income – the sum of his salary and the profits of the limited liability company DATE was too high for him to be entitled to the full amount of his social - security benefits . The alleged arrangement to the contrary was not reflected in the case file , and in any case , whatever statements had been made ( assuming that any had been made at all ) had been made by a person lacking the requisite competence and could not bind ORG .

The applicant lodged an appeal ( beroep ) with ORG ( rechtbank ) . As relevant to the case before ORG , he complained about ORG ’s failure to question PERSON and PERSON , which in his submission reflected a lack of due care affecting the quality of the investigation . He also submitted that PERSON had acted within his competence in making the agreement alleged .

Having held a hearing on DATE , ORG gave judgment on DATE dismissing the applicant ’s appeal . Its reasoning included the following :

“ The [ applicant ] has also stated that [ ORG ] officials had agreed with him that he would be permitted to earn unlimited income in addition to his ORG benefits for DATE . ORG has found no evidence of such an agreement in the documents available , nor is there any other reason to consider it plausible . On the contrary , it appears from the labour expert PERSON report of DATE that the [ applicant ’s ] income did in fact have to be taken into account . In addition , [ ORG ] answered the [ applicant ] ’s questions about the possibilities of obtaining income from work ( additional income ) in a letter of DATE , which letter incidentally the [ applicant ] claims not to have received . This letter states in no uncertain terms that [ ORG ] must always be informed immediately of any taking up of work and generation of income . But even without this letter it ought in reason to have been clear to the [ applicant ] that income can have an effect on the benefits . This ground of appeal therefore also fails . ”

The applicant lodged a further appeal ( QUANTITY beroep ) with ORG ( ORG ) . As relevant to the case before the ORG , he again complained in his written submissions about ORG ’s failure to hear PERSON and PERSON as witnesses . He asked for them both to be heard as a witness in order to prove the existence of the agreement . He also prayed in aid his acquittal by the ‘ s - Hertogenbosch Court of Appeal , which had been given in the meantime ( see paragraph CARDINAL below ) . He did not , however , himself summon PERSON and PERSON as witnesses by registered letter or bailiff ’s writ .

ORG held a hearing on DATE . The applicant did not bring PERSON and PERSON along but restated his request to have them heard as witnesses . ORG decided to reopen its examination of the facts of the case in order to put an additional question to ORG . ORG replied to ORG question in writing . The applicant and ORG waived the right to a further hearing .

ORG gave judgment on DATE dismissing the further appeal without having heard any witnesses . Its reasoning included the following :

“ The agreement relied on by the [ applicant ] , which is denied by ORG , does not appear from the case file and no other credible case for its existence has been made out by the [ applicant ] . ”

In response to a question by the ORG , the applicant acknowledged that he had made no attempt to summon PERSON and PERSON himself or bring them along to the hearing of either ORG or ORG , as permitted by section CARDINAL:CARDINAL(CARDINAL ) of LAW ( Algemene wet bestuursrecht ; see paragraph CARDINAL below ) .

In parallel with the administrative proceedings outlined above , the applicant was prosecuted for social security fraud and forgery .

On DATE the single - judge chamber of the criminal division ( politierechter ) of the ORG convicted the applicant .

NORP The applicant appealed to the ‘ s - ORG ( gerechtshof ) .

Having held a hearing on CARDINAL DATE , ORG gave judgment on DATE acquitting the applicant . Its reasoning included the following :

“ The suspect states that he drew up a common plan with PERSON in DATE with a view to the gradual reduction to CARDINAL of the ORG benefits over DATE . The applicant further states that he made arrangements with that PERSON concerning the amount of additional income he would be allowed to earn in the said DATE period . The suspect understood these arrangements in the sense that he would in principle be allowed to earn unlimited additional income without losing his benefits .

Prompted by the transformation of the CARDINAL - man business into CARDINAL or more limited liability companies the suspect sought confirmation from ORG that it would not matter for the arrangements made whether the provider of the income was the CARDINAL - man business or the said limited liability companies . To this end he got in touch with USZO on multiple occasions by means of letters . These letters were answered by USZO with automatised standard letters which did not address the specific situation in which the suspect found himself and which the suspect himself had raised with USZO .

By the time this question was put by the suspect to USZO PERSON had been succeeded by PERSON The latter found no report in the USZO file of the arrangements mentioned by the suspect . It is not apparent from the file that any attempt was made to hear PERSON about the said arrangements within the framework of this criminal case .

In view of the facts outlined above , ORG considers it plausible ( aannemelijk ) that the suspect made arrangements with PERSON in one form or another concerning the amount of permitted additional income within the framework of the gradual reduction to CARDINAL of his ORG benefits . It makes no difference that no report of any arrangements was found in the USZO file because no attempt has been made to verify the existence of these arrangements with Mr PERSON ”


CASE OF PAUNOVIĆ AND MILIVOJEVIĆ v. SERBIA

Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Right to free elections);Violation of Article 13+P1-3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 of Protocol No. 1 - Right to free elections;Right to free elections-{general});Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants , Mr PERSON ( “ the first applicant ” ) and Ms GPE ( “ the second applicant ” ) , are NORP nationals who were born in DATE and DATE and currently live in GPE and GPE , respectively .

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

Parliamentary elections in GPE are held on the basis of a proportional representation system in which candidates for ORG are included on lists put forward by political parties or coalitions . Voters choose between these lists , without voting directly for individual candidates .

NORP In DATE the applicants were elected as members of parliament ( MPs ) for a political party called GCARDINALPLUS .

Before the elections , however , all candidates , including the applicants , had been required by their party to sign undated letters of resignation and hand them in to the party . The documents also authorised the party to appoint other candidates in their place if necessary .

Following political differences between the applicants and their party , on CARDINAL DATE the first applicant signed a separate , officially certified statement , in which he declared his prior resignation letter to be null and void . The first applicant informed GCARDINALPLUS and the President of ORG of this statement and made it public .

The second applicant also subsequently told ORG , the party and the public that she considered her earlier resignation letter to be null and void .

On DATE the head of the GCARDINALPLUS party group in ORG dated the ORG resignation letters and submitted them to the President of the ORG .

On DATE , the first applicant addressed ORG , explaining that he did not intend to resign and that he wished to keep his seat as an independent MP . He provided the committee with his certified statement of CARDINAL DATE . However , the committee concluded that both applicants had resigned and held that their parliamentary mandates were deemed to be terminated .

On DATE a plenary session of ORG confirmed that decision and accepted CARDINAL other candidates proposed by GCARDINALPLUS as MPs in place of the applicants .

On DATE the applicants filed CARDINAL separate complaints with ORG and ORG , seeking the annulment of ORG ’s decisions to terminate their mandates and replace them with other candidates .

On DATE the complaint made to ORG was dismissed on procedural grounds . The court stated that the impugned parliamentary decisions had not been “ administrative acts ” and could not , as such , be subject to judicial review .

On CARDINAL DATE ORG also ruled against the applicants , without considering the merits of their case . It stated that new parliamentary elections had been held in DATE , which was why the ORG complaint had effectively become moot . It noted that their complaint could not have been treated as a constitutional appeal , as envisaged under LAW adopted in DATE , since the parliamentary decisions at issue had been made DATE before LAW had been adopted ( see B.CARDINAL below ) .

LAW provided , inter alia , that citizens exercised sovereignty through their “ freely elected representatives ” .

Article CARDINAL provided , inter alia , that a citizen who had reached DATE had the right to vote for ORG and be elected ; that parliamentary elections were direct , and that political parties , as well as other bodies , had the right to nominate candidates .

Article CARDINAL provided that an MP represented the citizens of the district in which he or she had been elected .

LAW was repealed in DATE and LAW , published in ORG no . CARDINAL , entered into force .

Article CARDINAL § CARDINAL(CARDINAL ) provided that the term of office of a member of parliament would end before it was due to expire officially if the person ceased to be a member of the political party or coalition on whose list he or she had been elected . On CARDINAL DATE this provision was declared unconstitutional by ORG and was effectively removed from LAW ( see paragraph CARDINAL below ) .

Article CARDINAL § CARDINAL(CARDINAL ) provides that a parliamentary term of office ends before its official expiry if a member submits his or her resignation .

On DATE was amended with the insertion of a provision requiring an MP to tender his or her resignation in person , in an officially certified document , and hand it to the President of ORG within DATE of the date of official certification .

Article CARDINAL provides that an MP , when tendering his or her resignation , must do so in writing and hand it to the President of ORG , who must then forward it to all other MPs .

Articles CARDINAL and CARDINAL provide that a contract can be declared null and void if it was concluded by a party acting with limited legal capacity or if it was concluded as a result of shortcomings in the intentions of the parties ( mane volje ) .

Articles CARDINAL and CARDINAL provide , inter alia , that anyone who has suffered fear , physical pain or mental anguish as a consequence of a breach of his or her personal rights ( prava ličnosti ) is entitled , depending on the duration and intensity of the breach , to sue for financial compensation in the civil courts and , in addition , to request other forms of redress capable of affording adequate non - pecuniary satisfaction .

Article CARDINAL § § CARDINAL and CARDINAL provide that a claim based on the above - mentioned provisions may be brought within DATE of the date on which the injured party learnt of the damage in question and identified the person responsible , but must in any case be brought within DATE of the event itself .

Article CARDINAL § CARDINAL further provides that if the damage at issue has been caused as the result of the commission of a criminal offence , the civil limitation period may be extended so as to correspond to the applicable criminal statute of limitations .

Article CARDINAL provides , inter alia , that every citizen who is of age and of working ability has the right to vote and stand for election ; that elections are direct ; and that election rights are protected in accordance with the law .

Article CARDINAL § CARDINAL provides that , “ under the terms prescribed by law , an MP shall be free to put his or her mandate irrevocably at the disposal of the political party on the proposal of which he or she was elected ” .

Article CARDINAL provides that “ a constitutional appeal may be lodged against individual decisions or actions of ORG bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by LAW , if other legal remedies for their protection have already been exhausted or have not been prescribed ” .

LAW entered into force in DATE .

On DATE , whilst reviewing the constitutionality of election legislation in abstracto , ORG held that the mandate of an elected MP belonged to the MP personally , and not to the political party on whose list he or she was elected . In its reasoning , the court emphasised that once elected , MPs should be accountable primarily to the voters who elected them , not to their political party . This flows from the fact that they hold a mandate from the people , not from their party . The fact that an MP has resigned from the party or been expelled should not therefore lead to their expulsion from parliament . There is no constitutional obligation on MPs to resign if they have political disagreements with their party , even if they are expelled from it ( decision IU no . CARDINAL/CARDINAL ) .

ORG of ORG ( “ the ORG ” ) has adopted a number of resolutions and recommendations regarding the issue of the recall of peoples’ representatives by political parties .

On DATE the ORG adopted LAW ( DATE ) entitled “ State of democracy in LOC . The functioning of democratic institutions in LOC and progress of the ORG ’s monitoring procedure ” , which stated , inter alia :

“ ... constitutional and legislative provisions providing for the recall of peoples’ representatives by the political parties ( the so - called ‘ imperative mandate’ ) should be abrogated in GPE , GPE and GPE ;

the recall of peoples’ representatives by the political parties ( the so - called ‘ imperative mandate’ ) is unacceptable and contrary to the principles of the rule of law and the separation of powers . ”

On DATE the ORG adopted Resolution DATE ) entitled “ State of democracy in LOC and the progress of the ORG ’s monitoring procedure ” , which stated , inter alia :

“ ... the ORG urges ... the Parliaments of GPE , GPE and GPE to abrogate constitutional and legislative provisions providing for the recall of peoples’ representatives by the political parties ( the so - called ‘ imperative mandate’ ) ... ”

On DATE the ORG adopted Resolution DATE ) entitled “ The honouring of obligations and commitments by GPE ” , which stated , inter alia :

“ CARDINAL . [ The ORG ] congratulates GPE for adopting , in DATE , LAW ORG in accordance with ORG of ORG ) and the OSCE / ODIHR , which has brought the system of allocation of mandates in the parliament into line with NORP standards ; it abolished the ‘ party - administrated mandates’ and the ‘ blank ORG , as requested by the ORG in its LAW ; ... The ORG notes , however , that LAW still contains a provision allowing for “ imperative mandates ” ;

[ The ORG ] therefore calls on the NORP authorities to :

CARDINAL.CARDINAL.CARDINAL . eliminate from the constitution the provisions establishing the imperative mandate of members of parliament ; ... ”

ORG , ORG advisory body on constitutional matters , adopted an Opinion at its CARDINALth plenary session ( document ORG - AD(CARDINAL)CARDINAL of DATE ) , the relevant part of which reads :

“ ... [ LAW CARDINAL of LAW ] ... states that ‘ Under the terms stipulated by the PERSON , a deputy shall be free to irrevocably put his / her term of office at the disposal [ of ] a political party upon which proposal he or she has been elected a ORG . It seems that its intent is to tie the deputy to the party position on all matters at all times . This is a serious violation of the freedom of a deputy to express his / her view on the merits of a proposal or action . It concentrates excessive power in the hands of the party leaderships . ”

The Report on ORG adopted by ORG at its CARDINALth meeting ( GPE , DATE ) and by ORG at its CARDINALth Plenary Session ( document LAW of DATE ) reads , in so far as relevant , as follows :

“ TIME . Obligation of Members of the parliament to resign if they change their political affiliation – the case of GPE .

At present , imperative mandate stricto sensu and recall are unknown in practice in LOC . Moreover , there are very few countries among ORG member GPE which have legislation giving the power to political parties to make members of the elected bodies resign if they change their political affiliation . The mechanisms of control of individual representatives proposed in the NORP or NORP cases can not be equalled to ‘ imperative mandate’ which is a practice forbidden in virtually all NORP countries . These mechanisms come closer to the model of ‘ party administered mandate’ which is or has been characteristic in countries such as GPE or GPE with the objective of preventing massive turn round of voters’ decision by means of party switching . Whilst in these countries these practices have [ been ] considered consistent with their own constitutions , ORG has consistently argued that losing the condition of representative because of crossing the floor or switching party is contrary to the principle of a free and independent mandate . Even though the aim pursued by this kind of measures ( i.e. preventing the ‘ sale’ of mandates to the top payer ) can be sympathetically contemplated , the basic constitutional principle which prohibits imperative mandate or any other form of politically depriving representatives of their mandates must prevail as a cornerstone of NORP democratic constitutionalism . ”


No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

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

The applicant was born in DATE and lives in GPE . At the material time he was the chairman of the supervisory board of a NORP bank – Latvijas GPE ( “ GPE ” or “ the Bank ” ) . The ORG held PERCENT of its shares .

A.L. was CARDINAL of the shareholders of GPE . He was also the President of the ORG until DATE , when he voluntarily stepped down from this position . In DATE he was elected as a member of ORG ) , representing a newly established political party , PERSON ( the GPE ’s ORG DATE also referred to below as the “ ORG ” ) , which had been established in DATE .

At the material time an advertising agency , PERSON , was contracted by both GPE and the GPE ’s ORG to provide certain advertising services .

PERSON ( “ ORG ” ) was CARDINAL of the main DATE newspapers in GPE at the material time . It was published by a joint - stock company , PERSON ( until DATE ) and , subsequently , by the limited liability company GPE .

On DATE the applicant prepared a report on the advertising and marketing expenses incurred by GPE in DATE and DATE , which he then presented to the ORG ’s supervisory board . His report was based on information which he had requested from the heads of the marketing and economics departments . According to the applicant ’s report , the ORG had transferred substantial sums for advertising and marketing services to , inter alia , PERSON , for which no supporting documents could be found . This raised suspicions that the ORG ’s funds had been misappropriated . The parties did not provide the ORG with a copy of the applicant ’s report , nor any further details of that report .

On DATE the ORG ’s supervisory board held an extraordinary meeting and ordered an internal audit to verify the applicant ’s findings . At a meeting of DATE the head of the internal audit department informed the supervisory board that no undocumented advertising and marketing expenses had been incurred . In response to press reports ( see paragraphs CARDINAL et seq . below ) , the internal audit had verified all deals concluded with PERSON in DATE ; the internal audit in relation to DATE was ongoing . The information published in the press had not been confirmed . The conclusions of the final report , dated DATE , indicated that in DATE no undocumented advertising and marketing expenses had been incurred . All contracted services had been received , but on some occasions no supporting documents have been kept ( for example , copies of certain advertisements in the press and some printed material – such as concert posters and tickets – were no longer available ) .

On DATE the supervisory board ordered an additional external audit . In DATE the audit agency in its report concluded that while the advertising and marketing expenses incurred in DATE ( CARDINAL NORP lati ( ORG ) , MONEY ( ORG ) ) and DATE ( LVL CARDINAL , approximately ORG CARDINAL,CARDINAL ) had been greater than in DATE ( in DATE the figure had been ORG CARDINAL , approximately ORG CARDINAL,CARDINAL ; in DATE , ORG CARDINAL , approximately ORG CARDINAL,CARDINAL ; and in DATE , ORG CARDINAL , approximately EUR CARDINAL ) , this could be explained by the fact that the ORG had been in the process of changing its corporate identity during the period under consideration . This process had continued while the external audit was being carried out and the ORG had incurred more expenses in this regard . All contracts with PERSON had been approved and signed by the ORG ’s highest management . The external audit concluded that there was no evidence that payments had been made for services or goods that had not been received or that the payments had exceeded the value of the services received . No personal links had been found between ORG or the ORG ’s staff members and the advertising companies . There was no evidence that the staff members had been forced to work with the particular service provider or to prepare documents for services which the ORG had not received .

Meanwhile , ORG applied to have criminal proceedings instituted in respect of the alleged intentional dissemination of false information about him . By a final decision of CARDINAL DATE the prosecution refused to institute criminal proceedings . The information and conclusions , which the applicant had provided to the journalists , had been based on erroneous findings contained in the applicant ’s initial report on the advertising and marketing expenses . However , there was no evidence that the applicant had intentionally disseminated false information about PERSON The latter was informed of his right to lodge a civil claim in that regard .

DATE and DATE ORG published numerous articles on various topics of public interest concerning DATE parliamentary elections . It appears that ORG journalists contacted the applicant for a comment shortly after the meeting of CARDINAL DATE of the ORG ’s supervisory board had taken place .

In their submissions to the ORG , the parties disagreed on the manner and form in which the applicant had provided the respective information to the ORG journalists . The ORG stated that the applicant had provided this information to the journalists on several occasions , and that his comments , which had contained concrete descriptions of ORG actions , had been provided in the form of facts susceptible of proof . The applicant , however , stated that he had only on CARDINAL occasion provided a short comment to the journalists via telephone about the issues discussed at the meeting of the ORG ’s supervisory board . Furthermore , the comments had constituted merely his own opinion about GPE ’s management ; they had still needed to be verified by the ORG ’s internal audit .

The following excerpts are from CARDINAL articles , which were published DATE , and which were based on the information provided by the applicant in this regard :

“ ‘ GPE ’s former management accused of ORG

[ Since ] DATE , [ ORG ] CARDINAL has been transferred [ to finance ] [ GPE ’s ] advertising and marketing activities , in respect of which no documentation – the relevant contracts , delivery / acceptance deeds etc . – has been provided ... [ T]he transfer of this sum in an unknown direction ( nezināmā virzienā ) actually amounts to the destruction of the ORG ’s [ available ] assets . ... As [ the applicant ] suggested to [ ORG ] , either ‘ somebody is receiving this paid money back’ or GPE ’s money is being used to create advertising of a completely different kind than that indicated in the available documents . ‘ This is money that has been stolen from the ORG , [ the applicant ] stated . ... Moreover , significant advance payments were made [ for services to be provided within DATE ] shortly before [ a ] change in GPE ’s management at DATE ] . The supervisory board has ordered an internal audit to discover where these funds have disappeared to ... Documents in the possession of [ ORG ] show that the role of ORG in the affair of the strange advertising [ funds ] transfers could be quite significant ... The [ ORG ’s ] public relations unit has dispatched [ ORG ] CARDINAL to who knows whom and who knows where . The ORG ’s marketing department stands out even more blatantly . Of a total of [ ORG ] CARDINAL spent , no documentary evidence exists regarding the expenditure of [ ORG ] CARDINAL . ” ( Information published in ORG , CARDINAL DATE edition , article written by PERSON and PERSON : “ GPE ’s former management accused of fraud ” . )

NORP “ DATE , GPE ’s current officials discovered massive excess expenditure on advertising that was allowed during the period of management of ORG and ORG these persons had been advertising themselves at the expense of GPE . ” ( Information published in ORG , CARDINAL DATE edition , article written by ORG and GPE : “ ORG – a NORP family enterprise ” . )

“ ‘ Advertising for ORG with GPE ’s money’

The advertising agency , ORG , responsible for creating the GPE ’s ORG preelection campaign , is CARDINAL of the companies to which GPE ’s former management transferred CARDINAL [ NORP ] lati at the beginning of [ DATE ] . The transfer was carried out without documentary certification as an advance payment for advertising services ... [ ORG ] has already announced that since DATE , GPE has transferred [ ORG ] CARDINAL [ to finance ] its advertising and marketing activities , in respect of which no documentation is available . ... As [ the applicant ] admitted to ORG , PERSON was the very agency to which more than [ ORG ] CARDINAL of GPE ’s funds was transferred at DATE ] as an advance payment ; [ details of the ] subsequent expenditure [ of those funds ] are unknown . ‘ It is possible that this is the money that provided the foundation for the GPE ’s ORG sizable advertising campaign’ , admitted [ the applicant ] . ... Documents in the possession of ORG show that the role of ORG in the affair of the strange advertising [ funds ] transfers could have been rather significant . ” ( Information published in ORG , CARDINAL DATE edition , article written by GPE and PERSON : “ Advertising for ORG with GPE ’s money ” . )

NORP “ [ The applicant ] confirmed to [ ORG ] that the advertising agency , PERSON , the creator of GPE ’s ORG advertising campaign , is CARDINAL of the companies to which the former management of GPE transferred more than [ ORG ] CARDINAL at DATE ] without documentary certification as an advance payment for advertising services . It has already been reported that since DATE , GPE has transferred [ ORG ] CARDINAL [ to finance ] its advertising and marketing activities , in respect of which no documentation – the relevant contracts , delivery / acceptance deeds , etc . – has been provided . ” ( Information published in ORG , CARDINAL DATE edition , article written by PERSON : “ GPE ’s President concerned about his reputation ” . )

“ ‘ Crisis within GPE ’s Management’

The scandal revolving around the potentially unlawful activities of ORG , the former President of GPE , has reached its culmination . ... ORG has a negative opinion of [ ORG ’s ] publications to date regarding the action of GPE ’s former management in transferring CARDINAL of [ NORP ] lati to advertising firms without documentary certification in respect of the expenditure of that money ... [ ORG ] has already repeatedly written about the long - standing battle among GPE ’s shareholders , during which ORG was accused several times of potentially unlawful actions ... This , however , has not prevented the friends of PERSON from resorting to extreme methods . [ ORG ] was informed by [ the applicant ] that ... at the last meeting of the supervisory board , a member of ‘ ORG ’s GPE , ORG , asked him in a forthright manner : ‘ Have the folks from GPE insured your property?’ ‘ This is an unprecedented event – the chairman of the ORG ’s supervisory board being blatantly threatened!’ admitted [ the applicant ] . He believes that ORG is now speculating that he will soon be afforded immunity as a member of [ parliament ] , preventing him from being criminally prosecuted without a majority vote of [ the ORG ] ... Commenting on the value of marketing , advertising and public relations contracts , [ the applicant ] admitted that even though it is necessary to carry out in - depth market research , during ORG ’s era various procedures were breached and payments were made whose sums currently can not be precisely determined ... ORG has already written that [ ORG ] CARDINAL has been transferred [ to finance GPE ’s ] advertising and marketing activities since DATE , in respect of which no documentation – the relevant contracts , delivery / acceptance deeds , etc . – has been provided ... Additionally , doubts lie in respect of PERSON that certain actions regarding the administration of certificate accounts were also contrary to the interests of both the ORG and the ORG . ” ( Information published in ORG , CARDINAL DATE edition , article written by PERSON : “ Crisis within GPE ’s management ” . )

“ [ ORG ] has already reported that the actions of ORG as the President of GPE are being questioned in relation to advertising contracts concluded in the amount of MONEY of [ NORP ] lati . These contracts have no documentary corroboration regarding the specific measures [ financed by ] the money in question . ” ( Information published in ORG , CARDINAL DATE edition , article written by PERSON , PERSON and PERSON : “ Repše : the Minister must be morally clean ” . )

“ ORG has already reported that in DATE , when PERSON was still the President of GPE , [ ORG ] CARDINAL was transferred without documentation , apparently for GPE ’s advertising and marketing activities , of which [ ORG ] CARDINAL went to the advertising agency , PERSON , which also happened to be responsible for creating GPE ’s ORG pre - election campaign . ” ( Information published in ORG , CARDINAL DATE edition , article written by ORG “ Parties divide money portfolios ! ” )

“ It is possible that during ORG ’s term of office [ ORG ] CARDINAL was transferred [ to finance ] GPE ’s advertising and marketing activities , in respect of which the relevant documentation has not been provided . ” ( Information published in ORG , CARDINAL DATE edition , article written by PERSON : “ GPE goes against PERSON at the prosecutor ’s office ” . )

“ [ ORG ] has already written that [ ORG ] CARDINAL was transferred in DATE , without any accompanying documentation , apparently for [ GPE ’s ] advertising and marketing activities , of which [ ORG ] CARDINAL [ went ] to the advertising agency , PERSON , which was responsible for creating GPE ’s ORG pre - election campaign . ” ( Information published in ORG , DATE edition , article written by ORG : “ Millionaires compete for power ” . )

On DATE PERSON lodged a claim against the applicant and the publishers of ORG seeking compensation and the retraction of a total of thirtyone allegedly defamatory articles . He also indicated that the applicant had provided false information to ORG , which had formed the basis of the above - mentioned CARDINAL articles ( see paragraph CARDINAL above ) .

During a hearing of DATE the applicant admitted before the first - instance court that the information concerning the possible misappropriation of GPE ’s funds , which he had provided to ORG , had proved to be incorrect . He made the following statements :

“ The information [ was ] wrong , unfounded . [ As part of my duties ] I was carrying out my task of managing [ the ORG ’s ] activities . I was not interested in ORG ’s private life . I have always respected him . I tried to organise [ my ] work correctly .

As to the mistake regarding numbers , there was one , and I apologise to ORG and to the journalists .

ORG worked at the ORG and worked in accordance with [ its ] budget . PERSON made decisions . There were others responsible for [ the ORG ’s ] budget . [ The ORG ] did not overpay for [ its ] advertisements .

The mistake regarding numbers could not have offended ORG honour and dignity .

There were no public statements ; maybe there were other [ people ] who [ provided more information to the press ] . ”

On DATE ORG ( PERSON apgabaltiesa ) delivered its judgment , dismissing the claims against the applicant . The court concluded that the CARDINAL articles in question ( see paragraph CARDINAL above ) , which had been based on the information provided by the applicant , had reported his personal opinion about the functioning of GPE and its management , which could not be considered defamatory . Moreover , no claim for defamatory information to be retracted was lodged against the applicant . The claims against both publishers of ORG ( PERSON and PERSON nams ) were partly upheld in so far as they concerned CARDINAL out of the CARDINAL articles which had been based on information provided by the applicant and CARDINAL other articles reporting on other matters .

On DATE ORG of ORG ( PERSON tiesas PERSON tiesu palāta ) DATE after appeals by PERSON , PERSON , and GPE nams – re - examined the case and delivered a new judgment . The judgment took immediate effect .

The appellate court noted that at the material time the press and other mass media had been widely reporting on DATE parliamentary elections DATE that is to say the political parties and their leaders , including the newly - established political party , of which ORG was one of the leaders . He had stood for election , his candidacy had been widely advertised and it had been , accordingly , examined by the press and other mass media . ORG had published a series of articles about the money spent on the pre - election advertising of the GPE ’s ORG , linking the source of these funds to GPE and its former President , PERSON It had been reported that during his time in office , ORG CARDINAL,CARDINAL had been transferred for advertising and marketing purposes without any documentary proof thereof having been preserved and that this had been considered to constitute a misappropriation of the bank ’s funds . These funds had been spent on the party ’s large - scale advertising ; as the applicant had put it : “ [ T]his money has been stolen from the shareholders ” . The CARDINAL articles had also contained other information provided by the applicant – that during PERSON ’s time in office , there had been breaches not only in relation to the advertising expenses , but also other breaches in respect of banking operations , payments without approval , the administration of certificate accounts against the interests of the ORG and the ORG .

The appellate court stated that the information contained in those articles about the use of GPE ’s funds and transactions had been provided by the applicant ( who had mentioned specific sums ) , and that the articles had contained references to his statements .

The appellate court found that since the applicant had provided this information to ORG journalists , he had to bear responsibility for giving and disseminating false information . The court held that this information had not corresponded to the facts and that this had been acknowledged by the applicant himself during the hearing before the first - instance court ( see paragraph CARDINAL above ) . This had also been confirmed by the results of the external audit and by the prosecution ( see paragraphs CARDINAL and DATE ) .

The court also held that the journalists had not had a responsibility to verify the accuracy of the provided information , since the applicant ’s status as the chairman of the supervisory board of GPE had created a legitimate expectation that the provided information was correct .

Lastly , the court found that , even if the margin of permissible criticism in respect of ORG as a member of parliament was necessarily a wider one than would normally be the case , the false information had nevertheless offended his honour and dignity , as it had contained serious allegations of unlawful activities and had given the impression that PERSON was a dishonest person .

Given the above , and in view of the seriousness of the interference and the applicant ’s position in the ORG , the court ordered the applicant to pay compensation to ORG in connection with the CARDINAL articles in the amount of ORG ( QUANTITY ) , together with statutory interest ( PERCENT per annum ) .

In addition , the court upheld the claim against PERSON alone in respect of CARDINAL other article , and ordered it to pay compensation in the amount of ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL ) , together with statutory interest ( PERCENT per annum ) .

The applicant and PERSON were also ordered to pay ORG legal costs in the amount of ORG ( approximately ORG CARDINAL ) and ORG CARDINAL ( approximately EUR CARDINAL ) respectively .

The appellate court dismissed ORG ’s claims against PERSON and PERSON as regards all the other articles that had not been based on any information provided by the applicant .

On DATE the applicant lodged an appeal on points of law with the ORG of ORG ( PERSON tiesas PERSON ) . He did not contest that the information he had provided to the journalists had turned out not to be supported by evidence . However , this information had constituted his evaluation of the actions taken by GPE ’s management as a whole . He had not directly mentioned ORG by name , surname or his position when giving the information to the journalists . His allegations regarding the misappropriation of GPE ’s funds could only have infringed the interests of the ORG as a legal entity ; it could not have offended the honour and dignity of certain executives , who had been under an obligation to inform the supervisory board and the mass media of the truth . Furthermore , the applicant had provided the information in the form of a supposition by indicating that it still needed to be verified by the ORG ’s internal audit . It was the ORG journalists who had linked the applicant ’s report with the allegations of wrongdoing by ORG , the applicant could not be held responsible for the manner in which the journalists had decided to present this information , since he had had no means of influencing this .

On DATE the ORG of ORG delivered a new judgment , which in essence upheld the appellate court ’s judgment . The relevant parts of the judgement read as follows :

“ [ The appellate court ’s ] conclusion that the applicant had disseminated defamatory and false information was supported by the applicant ’s own submissions before the first - instance court , in which he admitted that he had provided incorrect information to [ the journalists ] ... . The fact that this information was not truthful was confirmed by [ the audit agency and the prosecution ] .

The applicant in his appeal on points of law did not contest these findings . ... He merely noted that he was a source and could not influence the evaluation given by the journalists .

Having examined the testimony of [ the ORG journalists ] , the appellate court found that the false information provided by the applicant had related not to GPE ’s management , as the applicant indicated , but specifically to ORG , as the then President of the ORG , thus infringing his honour and dignity . ...

[ The appellate court ] found that the journalists had had no reason to doubt the credibility of the information , as it had been provided by the applicant [ in his capacity as ] chairman of the supervisory board of GPE , and his position had undoubtedly created a legitimate expectation that this information was true ... Accordingly , the appellate court rightly held that the journalists had had no obligation to verify the accuracy of the information provided by the applicant . ...

ORG had requested compensation in the amount of ORG CARDINAL from [ the applicant ] . By granting his claim , the [ appellate ] court , taking into account the scope of the distributed information and its audience , rightly considered it justified . ”

The ORG of ORG also upheld the claim against PERSON alone in respect of CARDINAL other article ; they held that ORG ’s honour and dignity had not been offended in other articles . The appellate court had referred to the ORG ’s case - law and had taken into account ORG ’s status and the fact that he had refused to offer comment . The appellate court had correctly applied the relevant principle that the journalistic freedom also covered possible recourse to a degree of exaggeration , or even provocation ; the ORG referred to a / s PERSON and PERSON v. GPE ( no . MONEY , § CARDINAL , CARDINAL DATE ) in this regard .

Referring to section CARDINALa of LAW and section CARDINAL(CARDINAL ) of the PERSON on ORG , the ORG of ORG ordered the applicant ( who had disseminated that defamatory information ) , and not PERSON , to retract the relevant parts of the articles in question ( see paragraph CARDINAL above ) . The latter , however , still remained obliged to publish the retracted information .


CASE OF ABDULKHADZHIYEVA AND ABDULKHADZHIYEV v. RUSSIA

Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+2-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2-1 - Life;Effective investigation;Article 2 - Right to life);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property)

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 and live in the village of GPE , in LOC of GPE . The second applicant is the first applicant ’s brother - in - law .

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

At the material time , a counterterrorist campaign – involving intense military clashes between federal troops and local rebels – was taking place in GPE . The law - enforcement bodies and the courts were not functioning . Upon the arrival of the military in GPE , the local residents did not flee but remained in their homes . The village and the area around it were under the control of federal troops that were stationed in the vicinity .

At DATE the outskirts of the village came under artillery fire , which forced the residents to seek the military ’s permission to evacuate their cattle .

After permission to evacuate the cattle was obtained , on DATE ( in the documents submitted the date was also referred to as QUANTITY ) , at TIME , the applicants and their neighbours , PERSON and PERSON M.R. , arrived at the agreed spot at a copse of trees next to PERSON and approached the NORP federal servicemen who were stationed in the vicinity . The servicemen agreed to let them pass through to the field where their cattle were pastured to retrieve them . However , after the applicants , PERSON and PERSON , had walked QUANTITY away in the direction of the pasture , the servicemen opened fire on them . As a result , both applicants received wounds to the upper extremities ( верхние конечности ) and fell on the ground . Having witnessed the attack , a civilian , Mr NORP , tried to approach the servicemen , but was shot dead in the presence of the applicants and Mr GPE Meanwhile , PERSON managed to crawl away and inform the local authorities about the incident .

Both applicants and PERSON remained on the ground for TIME ; each time they tried to get up they were subjected to gunfire . Then CARDINAL military servicemen approached , blindfolded them and took them to the LOC of military unit no . DATE . In the meantime , after PERSON informed the authorities of the incident , the head of the local administration , PERSON S. , arrived at the military unit , spoke to the servicemen and had the detainees released . As a result of the injuries she had sustained during the attack the first applicant was left with a permanent disability of the third degree .

NORP The applicants’ cattle remained under the control of the servicemen and were never returned . According to the first applicant , as a result of the incident she lost CARDINAL head of cattle and the second applicant CARDINAL head of cattle . In DATE , after military unit no . DATE had changed its stationing location from the vicinity of GPE to a site elsewhere , the applicants and their relatives found the remains of CARDINAL cows whose meat had been consumed by the military unit ; CARDINAL head of cattle were missing completely .

NORP In DATE , as soon as the local law - enforcement bodies had begun functioning again in their district , the applicants lodged an official complaint in respect of the events of DATE with the local police ( see paragraph CARDINAL below ) . Towards DATE the law - enforcement bodies in other parts of GPE started to function again .

In support of their account of the events of CARDINAL DATE the applicants furnished the ORG with statements from witnesses PERSON and PERSON R.M. , both dated DATE .

The Government did not contest the applicants’ account of the attack against them on DATE and the loss of their cattle , but stressed that the perpetrators had not been identified . In their observations on the admissibility and merits of the application of CARDINAL DATE , they stated , in particular , the following :

“ ... the damage to the applicants’ health occurred as a result of unidentified persons opening fire on them on DATE in the village of GPE in LOC . After the shooting the unidentified persons stole cattle belonging to the applicants ... ”

On DATE the first applicant complained in writing of the infliction of bodily injuries and the theft of her livestock to the NORP district temporary department of the interior ( Наурский Временный Отдел Внутренних Дел ) ( hereinafter “ the NORP VOVD ” ) .

In her complaint she described the circumstances of the attack and stated , in particular , that she had been wounded by military servicemen , who had then blindfolded her and taken her and CARDINAL other men to the LOC of their military unit . She further stated that after her release the cattle had remained in the hands of the military and that all her efforts to recover them had been to no avail .

On DATE the investigators questioned the first applicant , who stated that on DATE she , the second applicant and PERSON had gone to the pasture where cattle had been grazing , including a number of cows belonging to her . On the way there , at TIME , she had seen one of her cows lying shot and dying on the ground . The first applicant had approached her cow , but had been stopped by a group of military servicemen in light - coloured camouflage uniform , armed with machine guns , standing next to an armoured personnel carrier ( hereinafter “ the ORG ” ) . The first applicant had asked for their permission to drive the cattle home ; CARDINAL of the servicemen had gone to the ORG and spoken to someone on the radio . After that he had returned and said that the applicants and PERSON M.R. could proceed and collect their cattle . The applicant had walked just QUANTITY away when she and her CARDINAL companions had been subjected to gunfire , as a result of which she had been wounded in the left arm and the second applicant in the right arm . They had fallen to the ground and stayed there for TIME ; each time they had tried to get up , shots had been fired in their direction . Then CARDINAL military servicemen had approached them , ordered them to put their hands behind their heads , blindfolded them and taken them in the ORG to the LOC of military unit no . CARDINAL . The applicant provided the investigators with a detailed description of those CARDINAL servicemen ’s appearance . At the military unit the applicants had been given medical assistance . The applicant had asked the unit commander to drive her cattle over to pasture land lying closer to the village . The commander had promised to do that but he had not kept his promise and her cattle had gone missing . Then the head of the village administration had arrived and taken the applicants and PERSON home . The applicant provided the investigators with a detailed description of the unit commander . She further stated that after the military unit had left the place where it had been stationed , she had gone to the field and found an envelope with the address of CARDINAL of the servicemen who had been stationed there and that she still had the envelope and could provide it to the investigators . Subsequently the unit commander , PERSON , had visited her at home with a nurse to assist with the treatment of her wounded arm . DATE the applicant had not been able to seek official medical assistance , as hospitals in GPE had not been functioning . In DATE , when the local hospital had resumed its activities , she had gone there and sought medical assistance for her wounded arm ; she had stayed in the hospital for DATE but had been left with a disability .

On DATE the investigators questioned the second applicant and PERSON , both of whom stated that on DATE they and the first applicant had gone out to drive their cattle home . On their way to the pasture they had met military servicemen who had given them permission to take their cattle home . However , after they and the applicant had then walked QUANTITY away from the servicemen the latter had opened fire . The first applicant had fallen to the ground , bleeding . Then the second applicant and PERSON had screamed , asking the servicemen to stop firing , but to no avail . As a result , the second applicant had been shot in the upper extremities . Then they had fallen to the ground and after TIME had been found by the servicemen and taken to the military unit .

On DATE the PERSON opened criminal case no . DATE on account of the infliction of minor bodily injuries on the applicants ( Article CARDINAL § CARDINAL of LAW ) . The decision stated :

“ ... on DATE during DATE unidentified persons intentionally inflicted bodily injuries on [ the applicants ] ... ”

On DATE the investigators granted the first applicant victim status in the criminal case and questioned her again . She reiterated her earlier statement ( see paragraph CARDINAL above ) and added that the unit commander ’s name had been PERSON and that he had had the rank of lieutenant - colonel . She also provided a detailed description of her disappeared cattle and reiterated that as a result of the incident she had lost CARDINAL cows .

On DATE the investigators seized the envelope found by the applicant on the former premises of the military unit ( see paragraph CARDINAL above ) .

On DATE the investigators granted the second applicant victim status in the criminal case and questioned him again . His statement was similar to that of the first applicant ( see paragraph CARDINAL above ) . In addition , he stated that after the servicemen had taken him , the first applicant and PERSON to the military unit ’s LOC , they had provided him with medical assistance for his wounded arm and that the unit commander , a lieutenant - colonel named PERSON , had given him his apologies for his soldiers’ actions . Subsequently , the officer had visited him at home with a nurse to assist with the treatment of his wounds , as the local hospitals had not been functioning at that time . The second applicant also provided the investigators with a detailed description of his CARDINAL cows , which had disappeared as a result of the incident .

On DATE the investigators granted Mr GPE victim status in the criminal case and questioned him . His statement concerning the incident was similar to the ones given by the applicants ( see paragraphs CARDINAL and CARDINAL above ) . In addition , he provided a detailed description of the CARDINAL servicemen who had approached him and the applicants after the shooting . He also stated that the commander ’s name had been PERSON and that his military rank had been that of lieutenant - colonel . DATE after the events , on DATE , he had gone to the place of the incident and found the corpses of CARDINAL of his cows , which had been shot . CARDINAL other cows had gone missing .

On DATE the investigators questioned CARDINAL of the first applicant ’s neighbours , PERSON and ORG . , both of whom stated that they had not witnessed the incident in DATE , but that they had been told that the first and second applicants had been shot and wounded by the military servicemen and CARDINAL man had been shot dead by them and that as a result of the incident the applicants’ cattle had been lost .

On DATE an expert examination ordered by the investigator took place ; the examination identified the scars on the first applicant ’s left forearm as likely to have resulted from a perforating firearms wound in the circumstances described by her and categorised them as bodily harm of “ medium gravity ” .

On DATE , DATE , the second applicant was also examined by the expert . The examination identified the scars on his right forearm and the fingers of the left hand as likely to have resulted from perforating firearms wounds and categorised them as bodily harm of “ minor gravity ” .

On DATE and DATE respectively both applicants were granted victim status in the criminal case . The relevant decisions stated , amongst other things , that :

“ ... on DATE unidentified persons ... inflicted bodily injuries on [ the applicants ] and stole [ their ] cattle ... ”

DATE , on DATE , the investigation was suspended for failure to identify the perpetrators . The applicants were not informed of that suspension .

On an unspecified date DATE and DATE the first applicant complained to a supervising prosecutor about the delays in the investigation . On DATE the PERSON replied to the complaint , stating that the investigation had been suspended for failure to identify the perpetrators .

On an unspecified date in DATE , the first applicant also lodged an official complaint about his lack of access to the investigation file . On DATE the NORP district prosecutor ’s office ( hereinafter “ the district prosecutor ’s office ” ) replied to her , stating that she could access the file only upon the completion of the criminal investigation .

In DATE the first applicant lodged several complaints about the delays in the investigation with ORG office , which forwarded them to the district prosecutor ’s office . The complaints remained unanswered .

It appears that as a result of the first applicant ’s complaints , the investigation was resumed on DATE and the applicants were informed accordingly .

On DATE the investigators examined the envelope seized from the first applicant ( see paragraph CARDINAL above ) . As a result , the name and the address of officer PERSON ( to whom it had been sent at an address in the town of GPE ) were established .

On DATE the investigators examined the crime scene in the vicinity of the village of GPE . No evidence was collected .

On DATE the investigators again questioned the first applicant , whose statement was similar to the ones she had given previously ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE the investigators questioned the second applicant , who reiterated his earlier statements ( see paragraphs CARDINAL and CARDINAL above ) . In addition , he stated that the body of the man who had been shot dead during the incident had been recovered by the villagers DATE after the events and buried shortly afterwards .

On DATE the investigators questioned Mr PERSON . , who stated that in DATE he had assisted in negotiating the applicants’ and Mr M.R ’s release from the premises of the military unit . Mr PERSON . stated that he did not know what military unit it was .

On DATE the investigators questioned PERSON S. , who stated that since DATE he had been the head of the local administration . His statement was similar to those given by the applicants . In addition , he stated that the commander of the military unit had promised to drive the cattle back to the village , but that this had not happened .

On DATE the investigators again questioned PERSON , whose statement was similar to the ones he had previously given ( see paragraphs DATE and CARDINAL above ) .

NORP On DATE the investigators terminated the investigation of criminal case no . DATE because of the expiry of the time - limits for prosecution under ORG CARDINAL and CARDINAL of LAW .

On DATE ( DATE ) the investigators refused ( in the light of the expiry of the time - limit ) to initiate a new criminal investigation into the injuries sustained by the applicants on DATE .

On DATE investigators in GPE questioned officer PERSON , who stated that in DATE he had been serving in military unit no . DATE , which had been stationed in LOC , GPE . He had no information concerning the attack on the applicants and had no idea who had been the commander of the military unit at the material time . Officer PERSON stated that in DATE ( while he had been in GPE ) he had been questioned about the incident , but he could not remember by whom and under what circumstances .

On DATE the head of the PERSON overruled the decision to terminate the criminal investigation as unsubstantiated and premature and ordered that the proceedings be reopened and the case file be transferred to another law - enforcement body , in accordance with the rules of jurisdiction . The reasoning for the decision stated , inter alia , the following :

“ ... The investigation established that an unidentified person had opened fire and wounded in the arm [ the first and the second applicants ] , causing them medium and minor gravity bodily harm , respectively [ ... ]

... it was also established that unidentified persons had committed the theft of CARDINAL cows belonging to [ the applicants ] and of CARDINAL cows belonging to Mr GPE

On DATE the investigation of the criminal case was terminated for failure to identify the perpetrators .

The examination of the contents of the criminal case file demonstrated that the victims [ the applicants ] had been shot at with firearms , from a distance ... and the location of their wounds showed that life - threatening damage could have been caused to them ... In addition , according to the information in the case file , Mr NORP had been shot and killed on the spot in [ the applicants’ ] presence .

In the light of the above , the investigation of the criminal case failed to establish in full whether an attempt on the lives of [ the applicants ] had been made by the unidentified persons who [ were responsible for ] their gunshot wounds ... ”

On DATE the re - opened criminal case file no . DATE was forwarded to the PERSON ORG of ORG office ( hereinafter “ the investigations department ” ) for investigation .

On DATE the investigations department refused to institute criminal proceedings , noting that :

“ ... [ the applicants ] had been injured in non - vital parts of their bodies , which was confirmed by expert examinations . Therefore , there are no grounds for thinking that the alleged perpetrators intended to commit ... ‘ attempted murder’ , .. as argued by [ the applicants ] ... ”

The decision did not mention anything about the applicants’ cattle .

On DATE the investigations department adopted a decision terminating the investigation in criminal case no . CARDINAL because of the expiry of the time - limits for prosecution .

From the documents submitted it appears that on DATE the supervising prosecutor overruled the above decision to terminate the criminal investigation as unsubstantiated and premature .

On DATE the deputy GPE district prosecutor overturned the investigations department ’s decision of DATE to refuse to open a criminal case ( see paragraph CARDINAL above ) as unlawful and unsubstantiated . The applicants were informed thereof .

DATE . On DATE ( DATE ) the deputy GPE prosecutor also ordered that the criminal case file be sent to ORG for further investigation . The decision criticised the investigators’ failure to take basic steps and stated , amongst other things , the following :

“ ... at the same time , the investigation established that the shooting had been aimed at them [ the applicants , PERSON , PERSON and Mr NORP ] and had been carried out with automatic firearms simultaneously , from the same place next to the forest ; as a result [ the applicants ] had received gunshot wounds of varying gravity and [ Mr NORP ] had been shot dead .

Therefore , the above information provides grounds for concluding unequivocally that the unidentified person had the clear intention of killing [ the applicants and Mr NORP ] ; ... thus , the actions of the unidentified person should be deemed to constitute murder under parts CARDINAL and CARDINAL ( subparagraph “ a ” ) of Article CARDINAL of LAW , and the case file in respect of criminal case no . DATE should be transferred to ORG for investigation and joined with criminal case no . DATE [ concerning the killing of Mr D. ] .

In addition , up until the present , no request for information concerning the exact place where military unit no . DATE was stationed has been sent . Neither has any request for information concerning the possible stationing of a military unit next to GPE in LOC been forwarded .

The military commander of LOC , officer PERSON , has not been questioned about the circumstances of the incident . ”

As can be seen from the documents submitted , the investigation is still pending .

On DATE the first applicant lodged a complaint before ORG ( hereinafter “ the ORG ” ) challenging the decision of CARDINAL DATE to terminate the investigation . She argued , inter alia , that she had been both the target of an attempted murder and a victim of theft and asked for the case to be transferred to ORG for a proper investigation .

On DATE , shortly before the scheduled start of the first - instance court hearing ( see paragraph CARDINAL above ) , the prosecutor quashed the decision of CARDINAL DATE and as a result , by a decision of DATE ORG rejected the first applicant ’s complaint as groundless .

On DATE each applicant lodged a complaint before the ORG challenging the investigations department ’s refusal of CARDINAL DATE to initiate a criminal investigation .

On DATE ORG rejected the complaints , as the impugned decision had already been quashed earlier on DATE ( see paragraph CARDINAL above ) .

On an unspecified date DATE the applicants lodged a complaint before ORG about the defects in the investigation and the ORG failure to act with expedition .

On DATE ORG examined and partly rejected their complaint . It ruled that the investigators could only be criticised for their failure to inform the applicants in a timely manner about the procedural decisions in the criminal case . The decision stated , among other things , the following :

“ ... the court has no legal rights to impose obligations on the investigation bodies concerning the order and direction of the conduct of the investigation .

... The complaint should be allowed only in part and only in so far as the investigator ... failed to inform [ the applicants ] in a timely manner about the decisions taken in the case ... ” .

On CARDINAL DATE this decision was upheld by ORG on appeal .


Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

NORP The applicant , Mr Imrich Degro , is a NORP national , who was born in DATE and lives in LOC . He was represented before the ORG by Mr I. Jurčišin , a lawyer practising in PERSON .

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

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

On DATE the applicant lodged an action against a private company alleging that it had sold him a car that had permanent defects . Accordingly , the applicant asked the court to order the defendant to replace the car or , alternatively , refund him the purchase price .

The action was granted by ORG ( ORG súd ) on DATE and , following an appeal lodged by the defendant , its judgment was upheld by ORG ( Krajský súd ) on CARDINAL DATE .

The order that the defendant replace the car or refund the purchase price became final and binding ( právoplatnosť ) on DATE , following service of ORG judgment on the parties . After the expiry of the period allowed for voluntary compliance with the order , the order became enforceable ( vykonateľnosť ) on DATE .

The defendant then filed a petition with ORG ( “ the ORG ” ) , requesting that the latter exercise his discretionary power to challenge the above - mentioned judgments by way of an extraordinary appeal on points of law ( mimoriadne dovolanie DATE “ extraordinary appeal ” ) .

At an unspecified time , presumably still in DATE , the ORG acceded to the request by challenging the contested judgments in ORG ( Najvyšší súd ) .

In his extraordinary appeal , the ORG relied on Article CARDINALf § CARDINAL ( c ) of the Code of Civil Procedure ( Law no . PERSON . , as amended – “ the ORG ” ) , which permits such an appeal on the grounds that the challenged decision is based on an incorrect assessment of points of law .

In particular , the ORG argued that the courts had misinterpreted the consumerprotection rule pertaining to the case . The rule provided that a consumer who purchased goods or a service that had a reparable defect had the same remedies available to him or her as when the goods or service had an irreparable defect , provided that the supplier of such goods or service had failed to repair the reparable defect within DATE of being asked to do so .

According to the ORG , however , that rule was not applicable in a situation where DATE such as the applicant in the present case DATE had not used the remedy related to irreparable defects but had taken possession of the repaired goods despite the fact that the repair had been carried out after the statutory DATE period .

In his observations in reply , the applicant disagreed with the interpretation of the relevant rule by the ORG . It was far too restrictive and disregarded the object and purpose of the consumer protection legislation . He argued that the interpretation of that rule by the lower courts had been correct in his case : since the defendant had failed to observe the statutory DATE period for repairing the car , the applicant had been entitled to the remedies granted by those courts .

On DATE ORG allowed the appeal by quashing the contested judgments and remitting the case to the first - instance court for re - examination , having fully endorsed the line of argument pursued by the ORG . ORG judgment was served on the applicant ’s lawyer on DATE .

NORP The proceedings are now pending at first instance .

Article CARDINAL reads as follows :

“ CARDINAL . The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint to be justified , it shall deliver a decision stating that the person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash that decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the [ person ’s ] rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order that authority to refrain from violating the [ person ’s ] fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to a person whose rights under paragraph CARDINAL have been violated .

The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph CARDINAL shall not be affected by ORG decision . ”

DATE ORG lays down the procedures to be applied by the courts and to be followed by the parties in civil proceedings , with a view to ensuring fair and just protection of the rights and legitimate interests of the parties , and promoting compliance with the statutory law , fulfilment of duties and respect for the rights of fellow citizens .

Under LAW , the parties to the proceedings are to contribute to the purpose of the proceedings , in particular by giving a truthful and complete description of all the relevant facts , adducing evidence , and abiding by the instructions of the court .

Pursuant to LAW , the parties to the proceedings are to adduce evidence to uphold their claims .

Under LAW , as soon as a matter has been resolved by force of a final and binding decision or a judgment , it may not give rise to new proceedings .

The relevant provisions concerning appeals on points of law ( dovolanie ) are summarised , for example , in the ORG ’s decision in GPE PERSON GPE , a.s . v. GPE ( no . CARDINAL , LAW DATE , CARDINAL DATE , with further references ) . Appeals on points of law have no automatic suspensive effect , as the power to suspend the enforceability of the impugned decision is entrusted to ORG ( Article CARDINAL ) .

Extraordinary appeals on points of law are regulated by the provisions of Articles CARDINALe et seq .

The ORG has the power to challenge a decision of a court by means of an extraordinary appeal . He or she may do so following the filing of a petition by a party to the proceedings or another person concerned or injured by the decision , provided that the ORG concludes that : the final and binding decision has violated the law ; the protection of the rights and legitimate interests of individuals , legal entities or the ORG requires that such an appeal be brought ; such protection can not be achieved by other means ; and the matter at hand is not excluded from judicial review ( Articles CARDINALe § CARDINAL and CARDINALf § CARDINAL ) .

An extraordinary appeal may only be lodged against a ruling in a decision which has been contested by the party to the proceedings or the person concerned or injured by that decision ( LAW ) . Unless a statute provides otherwise , the ORG is bound by the scope of the petition for an extraordinary appeal ( LAW and CARDINAL ) .

Further conditions of admissibility of an extraordinary appeal are listed in LAW . They comprise ( a ) major procedural flaws within the meaning of LAW ( see , for example , GPE PERSON Springer GPE , a.s . v. GPE , no . CARDINAL , § CARDINAL , DATE ) , ( b ) other errors of procedure resulting in an erroneous decision on the merits , and ( c ) wrongful assessment of points of law .

An extraordinary appeal is to be lodged with ORG within DATE of the contested judicial decision becoming final and binding ( Article CARDINAL g ) .

NORP If the ORG concludes , following the filing of a petition by a party to the proceedings or another person concerned or injured by the impugned decision , that there is the risk of considerable economic loss or other serious irreparable consequences , the extraordinary appeal may be lodged without stating the reasons for appeal . The reasons must then be stated within DATE of the lodging of the extraordinary appeal with ORG , failing which the proceedings will be discontinued ( LAW and CARDINAL ) .

If the extraordinary appeal is accompanied by a request that the enforceability of the contested decision be suspended , its enforceability must be suspended following the lodging of the extraordinary appeal with ORG ( Article CARDINAL ha § CARDINAL ) .

The duration of such a suspension is regulated by Article CARDINAL ha § CARDINAL , pursuant to which the suspension ceases ( a ) when the request is dismissed or ( b ) with a decision on the extraordinary appeal , unless extended by ORG , DATE from the lodging of the extraordinary appeal with it .

A copy of the extraordinary appeal is to be sent to the parties to the proceedings for observations . The decision on the extraordinary appeal must be sent to the parties to the proceedings and to the ORG ( Article CARDINALi DATE and Article CARDINALj ) .

The results of the ongoing work to re - codify the rules on civil procedure are summarised in a DATE green paper ( ORG legislatívneho zámeru rekodifikácie civilného práva procesného ) of the re - codification commission under the auspices of ORG .

The green paper envisaged abolishing extraordinary appeals on the grounds that there are doubts as to their compatibility with the LAW , especially as regards the principles of equality of arms , legal certainty and res judicata . Extraordinary appeals are retained , albeit in a modified form , in the final text of LAW PERSON sporový poriadok ) .

In a decision ( uznesenie ) of DATE in an unrelated case ( no . ORG . ÚS CARDINAL/CARDINAL ) , ORG dismissed a motion by ORG that certain provisions of the ORG concerning extraordinary appeals were contrary to LAW . That motion was lodged by ORG in the context of extraordinary appeal proceedings instituted by the ORG concerning the review of an administrative decision on a restitution claim ( see PERSON and PERSON v. GPE DATE . ) , no . CARDINAL , DATE ) .

In its decision , ORG observed , inter alia , that the extraordinary appeal was an extraordinary means for ensuring that judicial decisions were not only formally final but also right in terms of content . A clear discrepancy between the degrees of respect shown for those CARDINAL principles in an individual case could justify an interference with the former principle for the benefit of the latter . However , that would be so only in instances of a striking violation of constitutional principles of procedure , the principle of a fair trial or a denial of justice , which were not amenable to correction by other means .

According to ORG , for an extraordinary appeal to be acceptable its use had to be limited to instances of the most serious errors in procedure or its outcome ( linked to either factual or legal assessment ) , and to instances where other available legal remedies had been exhausted .

Moreover , ORG held that by virtue of the power to lodge an extraordinary appeal , the ORG was a statutory intermediary for ensuring protection of the rights of the parties and other persons concerned or injured by the contested decision .

In a decision of DATE in an unrelated case ( no . LAW . ÚS CARDINAL/CARDINAL ) concerning an individual complaint , ORG held , inter alia , that in extraordinary appeal proceedings before ORG the ORG did not have the standing of a party to the proceedings as such , but rather had a sui generis standing , similar to that of the parties . In such proceedings , the ORG had no subjective interest of his or her own . Rather , the protection from unlawful final and binding decisions pursued in those proceedings served the general interest .

In a decision of DATE in another unrelated case ( no . LAW . ÚS CARDINAL/CARDINAL ) concerning an individual complaint , ORG observed , among other things , that individuals and legal entities that had petitioned the ORG to lodge an extraordinary appeal had no legal claim to have such an appeal lodged and that , conversely , the ORG was under no legal duty to accommodate the request . It was within the ORG ’s entire discretion to decide whether or not to lodge an extraordinary appeal . The extraordinary appeal was an extraordinary remedy . There was no legal right to have it lodged on one ’s behalf . A petition for an extraordinary remedy did not enjoy constitutional protection and was not covered by the catalogue of fundamental rights .

In its decision of CARDINAL DATE , in an unrelated case ( no . QUANTITY M Obdo V CARDINAL/CARDINAL ) , ORG rejected an extraordinary appeal by the ORG concerning a property dispute . It held that an extraordinary appeal was not admissible in circumstances where it was open to the party concerned to pursue its rights directly by way of an appeal on points of law .