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

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

The applicant was born in DATE and lives in GPE .

At the time of the events the applicant worked for the association “ GPE in Not ” , which offers legal and social support to asylum seekers and refugees .

In DATE , an amendment to a number of laws concerning the status of foreigners and of asylum seekers and concerning relevant proceedings ( Fremdenrechtspaket DATE ) was drafted and adopted by ORG . The amendments entered into force on DATE .

On DATE the then Federal Minister for ORG , ORG , died unexpectedly of an aneurysm at DATE .

On DATE the applicant published a statement on the association ’s website entitled “ One less . What ’s coming now ? ” ( “ Eine weniger . Was kommt danach ? ” ) . It continued : “ The good news for DATE , Minister for torture and deportation , is dead . ” ( “ PERSON GPE : ORG , ORG für PERSON , ist tot ” ) After referring to some specific individual stories of asylum seekers , the text stated further that “ PERSON was a desk war criminal just like many others there have been in the atrocious history of this country : completely desensitised , indifferent to the consequences of their laws and regulations , the compliant instrument of a bureaucracy contaminated with racism . No decent human is shedding tears over her death . ” ( “ L.P. war eine GPE , wie es viele gab in der grausamen Geschichte dieses Landes ; völlig abgestumpft , gleichgültig gegen die NORP ihrer Gesetze und GPE , ein willfähiges PERSON rassistisch verseuchten PERSON . PERSON anständiger PERSON weint ihr eine Träne nach . ” ) . The applicant concluded the text by suggesting that their goal for the New Year was to fight for a new minister who would make good the damage done by ORG so that GPE could return to being a country welcoming asylum seekers and a place where human rights were respected .

G.P. , the late Minister ’s husband , filed a private prosecution ( Privatanklage ) for defamation against the applicant and the association .

On DATE ORG ( PERSON für PERSON ) convicted the applicant of defamation in respect of the above - quoted passages of the statement and sentenced him to a fine in the amount of LAW . CARDINAL of the fine was suspended for DATE . It dismissed ORG ’s request for recognition of the association ’s liability for its employee ’s actions .

NORP The court found that the average reader would understand the relevant passages of the statement to mean that ORG had ordered or tolerated the torture pending expulsion or the deportation of detainees and had violated human rights . The word “ torture ” , in particular , implied the intentional infliction of physical or psychological suffering . An average reader would also place the word “ deportation ” ( PERSON ) in the context of the historical events under the national - socialist regime which forcefully deported segregated groups of people to ghettos and camps to subject them to forced labour or extermination . The statement in question suggested that ORG exercised her political function in a particularly despicable way , that she was indifferent to officials’ criminal abuse of authority in relation to asylum seekers and that her actions were motivated by racist , sadistic , xenophobic and national - socialist attitudes . The publication of the statement had triggered considerable reaction from the media and the public . The applicant had been criticised as tactless and disrespectful . In response thereto , on DATE , the applicant published in a DATE newspaper a reply in which he stated that his comments had been directed solely towards ORG and he apologised to her family members , who were not responsible for the late Minister ’s inhumane policies .

ORG acknowledged that a criminal charge of defamation was at odds with the right to freedom of expression as guaranteed by the Convention . It found that the voicing of opinions by refugee associations criticising politicians and their legislative projects represented an important corrective element and that the limits of acceptable criticism were particularly widely drawn in the context of the present case . However , in the court ’s opinion , the published statement overstepped the limits of acceptable criticism . The legislative background to the amendment of the laws governing foreigners and asylum seekers and the fact that criticism was allowed to be shocking , still could not justify positioning ORG in a national - socialist and racist context and suggesting that she had tolerated the intentional physical ill - treatment of detainees pending expulsion or “ deportations ” . Such accusations against the then only recently passed away PERSON – together with the acclamation of her death and the call on “ decent ” people not to mourn her passing DATE clearly went beyond the limits of acceptable criticism in a NORP society . Moreover , the allegations made by the applicant had not been proven to be true , nor had he shown any journalistic diligence in that regard .

The applicant filed an appeal on points of law and fact , and also appealed against the sentence .

On DATE ORG ( Oberlandesgericht Wien ) dismissed his appeal . Referring to the reasoning of the first - instance court , it conceded that the word “ deportation ” nowadays had acquired the additional meaning of “ expulsion or removal ” and was not only used in the context of the national - socialist regime , but also in the context of the forced expulsion of foreigners . However , the context of the word in which it had been used ( “ a desk war criminal just like many others there have been in the atrocious history of this country ” ) acted as a reminder of the national - socialist history of the country . Therefore , even though the statements at issue were political value judgments ( “ politische Wertungen ” ) , the applicant had not produced any proof of a factual basis for his allegations . The applicant had further argued that , following the case - law of ORG and of the domestic courts with regard to LAW , the impugned statement was covered by freedom of expression . ORG , however , found that even such case - law did not provide carte blanche for the applicant to make comparisons with the national - socialist regime without any factual basis .

NORP That decision was served on the applicant ’s counsel on DATE .

On DATE the applicant lodged a request for the renewal of the criminal proceedings ( “ PERSON des GPE ) pursuant to LAW with the aim of having the proceedings re - opened and the conviction set aside .

On DATE ORG dismissed the request . It stated that the admittedly broad limits of tolerable criticism in the political discourse did not cover excessive value judgments without any factual basis . Statements made in even heated political conflicts needed to respect a minimum of decency and moderation . In the present case ORG found that the evaluation by the courts had rightly led to the conclusion that the text in question justified the limitation of the applicant ’s right to freedom of expression . The value judgment suggesting criminal behaviour on the part of ORG had no factual basis . The courts had not misjudged the considerable public interest in the discussion concerning migration and asylum policy . However , the applicant ’s statements had not contributed to that public discussion , since they were directed at defaming and discrediting the late Minister . The court further noted that the sanction imposed was , in view of the disrespectful statements and their temporal proximity to ORG ’s death , appropriate and even moderate .

ORG decision was served on the applicant ’s counsel on DATE .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Civil rights and obligations;Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE . He has been a lawyer since DATE and he practises in GPE .

In DATE criminal investigation proceedings were pending before ORG against PERSON , a regional politician from GPE , and a NORP citizen , PERSON , who was in detention pending trial . Both were suspected of human trafficking . PERSON was also suspected of fraud . During the investigation proceedings , PERSON accused PERSON of having accepted money for facilitating the illegal entry or transit of CARDINAL nationals from GPE to GPE or through GPE to GPE .

PERSON , an association of which PERSON was president , commissioned the applicant to represent PERSON in the criminal proceedings . The applicant ’s fees were covered by this association . Having accepted the mandate the applicant remained in close contact with PERSON and transmitted to him information concerning the criminal investigation proceedings against PERSON He did not represent PERSON in the proceedings .

On DATE the applicant visited PERSON in prison in order to prepare for the trial on DATE . During this visit an affidavit ( ORG ) , prepared in advance by the applicant , was signed by PERSON in which she submitted that her former allegations against PERSON had been untrue .

On DATE , ORG convicted PERSON of the crimes as charged and sentenced her to QUANTITY months’ imprisonment . PERSON did not retract the statements she had made to the investigating authorities , nor was the affidavit submitted to the court . Instead , the applicant transferred it to the lawyers of O.G.

On DATE the lawyers of PERSON transferred ORG affidavit to the public prosecutor to be taken into consideration in the proceedings against O.G.

NORP On DATE and DATE , in the course of the criminal proceedings against PERSON , the judge of ORG reported to ORG ( Rechtsanwaltskammer , hereinafter “ the Bar Association ” ) that he suspected the applicant of double representation . The judge stated that the applicant had kept close contact with PERSON and had transferred to him information concerning the investigation proceedings regarding PERSON The judge further stated that the applicant had asked PERSON to submit the affidavit , whose contents were untrue but in favour of PERSON , to the court .

On DATE , upon a request by the PERSON public prosecutor , ORG instituted a preliminary investigation into allegations of attempting to aid the perpetrator ( versuchte PERSON ) , false testimony ( ORG ) and falsifying evidence ( PERSON eines ORG ) against the applicant , and informed ORG .

On DATE , CARDINAL DATE and DATE the PERSON public prosecutor requested that the court conduct further preliminary investigations in the case , in particular the questioning of several witnesses and to put the applicant on the stand . ORG took the requested evidence and heard evidence from the applicant .

On DATE , the PERSON public prosecutor requested the inclusion of a further file regarding the falsification of evidence in a case not related to that of PERSON The file was included in the preliminary investigation against the applicant and the requested evidence was gathered .

Because of the reform of LAW , which entered into force on DATE , the investigating judge transmitted the file to the PERSON public prosecutor , who took charge of the case .

On an unspecified date the PERSON public prosecutor decided not to file a formal indictment ( PERSON , PERSON ) against the applicant until a final court decision in the case against PERSON had been taken . There is no indication that a formal decision on the postponement was taken on this matter or sent to the applicant .

On DATE the PERSON public prosecutor ordered the suspension of the criminal proceedings against the applicant since the criminal proceedings against PERSON were still pending . Again , it appears that no formal decision was sent to the applicant in this regard .

On DATE the applicant lodged a request with the PERSON public prosecutor for the discontinuation of the investigation proceedings .

On DATE the criminal proceedings against the applicant were resumed and he was charged with the offence of attempted aiding of the perpetrator and falsifying evidence .

The Linz Regional Court summoned the applicant on DATE for trial on DATE . The applicant lodged a request to have more witnesses questioned on DATE and submitted a statement .

On DATE the first hearing in the criminal proceedings against the applicant was held before ORG .

The next hearing was held on DATE . The hearing was adjourned until the final decision in the case of PERSON had been taken .

As the criminal proceedings against PERSON were still pending , ORG continued criminal proceedings against the applicant and a further hearing was held on DATE , with a new judge presiding .

On DATE ORG acquitted the applicant on all counts .

On DATE ORG dismissed an appeal by the public prosecutor . This judgment was served on the applicant on DATE .

Following the notice of the investigating judge of DATE ORG ( Disziplinaranwalt ) on DATE applied to introduce disciplinary proceedings against the applicant on charges of double representation and falsification of evidence .

Accordingly , on an unspecified date , ORG ( NORP der PERSON , hereinafter “ the ORG ” ) initiated disciplinary proceedings against the applicant .

On DATE ORG held an oral hearing and adjourned the disciplinary proceedings until the criminal proceedings at ORG had become final .

On DATE ORG applied for the withdrawal of the applicant ’s right to represent clients before the PERSON courts in criminal cases as an interim measure .

The applicant was informed of this application and submitted his written comments on CARDINAL DATE and DATE in which he opposed the measure .

On DATE ORG , without holding a hearing , withdrew the applicant ’s right to represent before GPE , ORG and ORG in criminal law cases as an interim measure by virtue of section CARDINAL of LAW ( GPE für LOC ) . It held that because of the accusations against the applicant the imposed interim measure was proportionate .

The applicant appealed on DATE against this interim measure and complained that the preconditions for it had not been met , that ORG had failed to hear evidence and that it had not held an oral hearing . Furthermore the measure had not been proportionate to the accusations .

On DATE ORG ( PERSON Berufungs- und ORG ) dismissed the applicant ’s appeal without having held an oral hearing . It found that it was the task of the criminal courts to hear evidence . The applicant had submitted his comments and had therefore been able to sufficiently present his arguments . Moreover , the measure imposed upon the applicant had been proportionate .

On DATE the applicant lodged a complaint with ORG ) and again complained about the lack of an oral hearing and that the measure was disproportionate .

On DATE the applicant lodged a request for information ( Auskunftsbegehren ) with ORG and asked if the interim measure of CARDINAL DATE would automatically expire after DATE . If not , he asked to have the interim measure withdrawn as the criminal proceedings were still pending . He claimed that it was disproportionate to sustain the interim measure over such a long period of time .

On DATE ORG replied to the request of DATE and informed the applicant , that the interim measure would not expire automatically but would remain in force .

On DATE ORG dismissed the applicant ’s complaint and held that the reasoning of the authorities had been sufficient and therefore the imposed measure was not arbitrary . Furthermore it found that the proceedings had overall been fair . As the preliminary measure imposed on the applicant had not been a “ criminal charge ” in the sense of LAW , an oral hearing had not been compulsory .

On DATE ORG asked for information about the state of the criminal proceedings . A written reply was sent on DATE .

On DATE , after the applicant had been acquitted on all counts by ORG , he lodged another request with ORG to have the interim measure withdrawn referring to the court ’s decision .

This request was dismissed by ORG as the public prosecutor had appealed against the decision of ORG .

The applicant appealed on DATE against this decision and complained about the length of time the imposed measure had already been in force .

On DATE the interim measure imposed on the applicant , prohibiting him from representing clients before the PERSON courts in criminal cases was lifted by ORG .

On DATE he was summoned to a hearing by ORG on DATE .

The applicant filed statements in preparation of the hearing on CARDINAL and CARDINAL DATE denying that there was a case of double representation and referring to the decision of ORG of DATE .

On DATE ORG found that the applicant had not knowingly organised for PERSON to submit an affidavit that was untrue . However , he had acted in double representation within the meaning of section CARDINAL of LAW ( Rechtanwaltsordnung ) in criminal proceedings , as he had acted in the interests of PERSON and the association PERSON as well as in those of PERSON , whom he had represented . ORG stated that the fact that the disciplinary proceedings had lasted DATE and the fact that the right of the applicant to represent before certain courts in criminal cases had been withdrawn for DATE had to be taken into account . Therefore it found it reasonable to impose a fine of MONEY ( ORG ) in addition to another disciplinary fine he already had been ordered to pay for another case of violation of LAW .

The applicant lodged an appeal on points of law and an appeal against the fine .

ORG , acting as the highest court in disciplinary proceedings against lawyers , held a hearing on DATE and dismissed the applicant ’s appeal on points of law , but reduced the additional disciplinary fine to LAW . It explicitly mentioned the length of disciplinary proceedings as a violation of the applicant ’s rights under LAW and took account of the fact that the applicant ’s right to represent before ORG in criminal cases had been withdrawn for DATE . ORG found that a different set of disciplinary proceedings had been already pending when the present incident occurred . Therefore , the applicant should have acted with special caution . A total waiver of the fine would not be adequate in this situation .

ORG judgment was served on DATE on the applicant .


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

Kristina Pardalos;Pauliine Koskelo;Ksenija Turković

The applicant lives in PERSON .

From DATE the applicant concluded several consecutive fixed - duration contracts of employment with the company ORG concerning the same post . The contracts were for a continuous period which in total amounted to over DATE and DATE .

On DATE the applicant ’s employer returned the applicant ’s employment registration book to him , without any written or oral notification , showing that his employment had been terminated .

On DATE the applicant brought a civil action before ORG ( PERSON ) . He asked it to recognise that he had concluded an open - ended contract of employment , given that he had been in continuous employment with his employer for DATE , which was the time - limit for fixed - term employment contracts under LAW . He also asked ORG to establish that his employment had not been terminated and to order his reinstatement .

On DATE ORG dismissed the applicant ’s claim as time - barred .

Upon an appeal by the applicant , on DATE ORG PERSON ) quashed the firstinstance decision and remitted the case for fresh consideration . It held that the first - instance court should have declared the applicant ’s claims inadmissible as time - barred , without examining it on the merits .

In the fresh proceedings , ORG on DATE declared the applicant ’s action inadmissible as having been lodged outside the prescribed time - limit . The first - instance court , relying on CARDINAL of LAW , held that the applicant and his employer had concluded a fixed - term contract lasting until DATE and that the applicant must have known that his contract would end on DATE . He had not concluded a new contract of employment with his employer and he had therefore been obliged to lodge an application for the protection of his rights with his employer within the DATE time - limit , starting from DATE . However , he had failed to do so and consequently his claim had been lodged out of time . Rejecting the applicant ’s argument , the firstinstance court also held that the defendant company had not been obliged to adopt a formal decision on terminating his employment or to send him any other kind of notification , given that he must have known that his contract would come to an end on DATE .

On CARDINAL DATE the applicant lodged an appeal with ORG .

On DATE ORG upheld the firstinstance decision .

On DATE the applicant lodged an appeal on points of law ( revizija ) with ORG ( PERSON ) , which was dismissed as ill - founded on DATE . ORG also held that the applicant had failed to seek the protection of his rights in respect of his employer within the deadlines prescribed by CARDINAL of LAW . Accordingly , his claim had been lodged out of time .

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) . He complained that the courts had wrongly declared his claim inadmissible because it had been of a declaratory nature and as such had not been subject to deadlines . He relied on a decision by ORG of DATE in the case of a colleague of his , who for the same reasons as the applicant had also sought to have the court recognise that he had concluded an open - ended contract of employment . In that decision ORG , in accordance with instructions given in ORG decision no . Revr-CARDINAL/CARDINAL of DATE , had dismissed the defendant ’s ( the employer ’s ) objection that the claim was time - barred . Namely , ORG had held that the claim had been of a declaratory nature and as such was not subject to deadlines .

On DATE ORG dismissed the applicant ’s constitutional complaint as manifestly ill - founded .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

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

On DATE the applicant was arrested on suspicion of causing and inciting prostitution of minors and unlawful breaking and entering . According to the record of the arrest , a number of witnesses made statements about the applicant ’s involvement in the said crimes .

On DATE ORG remanded the applicant in custody noting as follows :

“ [ The applicant ] is charged with serious offences , which fact suggests that , being a former law enforcement officer , if released , he may interfere with the establishment of the truth , influence or threaten witnesses and victims , continue criminal activities or abscond and it will not be possible to complete the investigation or conduct a trial . The ORG considers that [ a less strict ] restrictive measure can not be applied . ”

The applicant remained in custody pending investigation and trial . Relying on the seriousness of the charges against the applicant , ORG extended the applicant ’s detention during investigation on DATE and DATE . On DATE and CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE and CARDINAL DATE ORG of GPE extended the applicant ’s detention pending trial . Each time ORG issued a collective detention order in respect of CARDINAL defendants , including the applicant , and noted that the circumstances underlying their remand in custody had not ceased to exist . Relying further on the seriousness of the charges against the CARDINAL defendants , ORG reasoned that , if released , they might abscond , continue criminal activities or interfere with the establishment of the truth . The applicant ’s appeals were to no avail .

On an unspecified date the applicant was charged with abuse of power and organisation of a criminal gang .

On DATE ORG of GPE found the applicant guilty of several counts of causing and inciting prostitution of minors , abuse of power and unlawful breaking and entering . He was acquitted of organisation of a criminal gang and CARDINAL count of causing and inciting prostitution of minors .

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

On DATE the applicant was released on parole .

Following the remand in custody on DATE , the applicant was detained in remand prison no . IZ-CARDINAL/CARDINAL in GPE . On DATE the applicant was transferred to remand prison no . IZ CARDINAL/CARDINAL in GPE where he was detained until DATE .

On DATE the applicant sent a letter to the ORG alleging a violation of his right to liberty and asking the ORG to send him an application form . His letter was registered as application no . CARDINAL/CARDINAL .

On DATE the ORG sent a letter to the applicant which contained an application form to be filled out . In the letter the ORG advised the applicant that he was to submit a completed application form by DATE . The ORG ’s letter was sent to remand prison no . IZ-CARDINAL/CARDINAL in GPE . The applicant was not detained at the remand prison at the moment and the ORG ’s letter was forwarded , to correctional colony no . ORG . According to the stamp on the ORG ’s letter of CARDINAL DATE , the correctional colony received it on DATE . Then the administration of the correctional colony sent the letter back to remand prison no . ORG . The remand prison received it on DATE and forwarded it to remand prison no . ORG where the applicant was detained . The letter arrived there on CARDINAL DATE and on DATE the applicant received it ( according to the applicant , he received the letter on CARDINAL DATE ) .


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

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in DATE and lives in the village of GPE , GPE .

The applicant has been a member of an opposition political party , ORG , since DATE . Since DATE he has headed the party ’s local offices in the Baghramyan area .

In DATE and DATE a series of protest rallies were organised in GPE by the opposition parties who voiced their criticism of the alleged irregularities which had taken place during the presidential election of DATE and challenged the legitimacy of the re - elected President . It appears that the applicant participated in these rallies . He alleged that the authorities retaliated by arresting , harassing and searching opposition supporters .

On DATE at TIME the applicant was arrested and taken to a police station where an administrative case was initiated against him for disobeying the lawful orders of police officers .

On DATE ORG sentenced the applicant to CARDINAL days’ administrative detention .

The running of the DATE administrative sentence was to be calculated from DATE at TIME The applicant was taken to a detention facility in the town of LOC where he served his sentence .

On DATE at TIME , ORG examined and granted an investigator ’s motion , which had apparently been lodged on DATE , seeking to have the applicant ’s home searched . The judicial warrant stated :

“ The investigating authority has found it substantiated that on DATE at TIME the residents of the village of GPE of GPE [ GPE and GPE ] inflicted violence dangerous for health in the pasture located in the administrative area of GPE in GPE on representatives of the authorities performing their official duties , [ namely ] the head of GPE [ PERSON ] and head of staff of ORG [ A.M. ] . According to operative information , [ GPE and GPE ] had a weapon during the incident[. F]or the purpose of hiding the mentioned weapon , they gave it to the resident of PERSON village , member of ORG , [ the applicant ] , who may have hidden the mentioned weapon in CARDINAL of his homes in GPE .

On DATE ORG instituted criminal proceedings no . CARDINAL ... concerning this fact .

In view of the fact that the facts of the criminal case provide sufficient grounds to believe that an illegally possessed weapon and ammunition may be found in [ the applicant ’s ] home situated in GPE in GPE , as well as other objects and valuables having significance for the criminal case , the court therefore finds that the motion is well - founded and must be granted . ”

It was stated in the warrant that it could be contested within DATE before the Criminal and Military Court of Appeal .

The applicant alleged that on DATE , TIME before the expiry of his administrative sentence , he was taken from the LOC detention facility to ORG . From there he was escorted home by CARDINAL police officers .

According to the search record , the search was conducted from TIME by CARDINAL police officers of ORG , GPE , PERSON , ORG . , PERSON , ORG and GPE . CARDINAL neighbours , PERSON and PERSON , were asked by the head of the police team to participate in the search as attesting witnesses . The applicant was asked to surrender the illegal weapon allegedly hidden in his house . The applicant stated that he had no illegal objects at home . As a result of the search , a plastic bag containing a cannabis - like herb was found in the boiler situated in the hallway . The applicant stated that he did not know what it was and who it belonged to . It was mentioned at the end of the record that the applicant had refused to sign the record without providing any reasons .

According to the applicant and the statements of the CARDINAL attesting witnesses which were appended to the application form , the search was conducted in the following manner . Upon his return home , accompanied by police officers , the applicant found his pregnant wife in a critical condition , apparently suffering a miscarriage , and his DATE son crying beside her . On seeing him , the applicant ’s wife fainted . A doctor was called and a number of female neighbours came to help . At that point the head of the police team informed the applicant that his house was to be searched , briefly showing him the relevant search warrant . The applicant alleged that attesting witnesses PERSON and PERSON were asked to participate only after the search had already begun . It appears that PERSON was a war veteran who had suffered concussion and was seriously disabled , while PERSON was seventyfour DATE old . The search was conducted by CARDINAL police officers who also used CARDINAL specially trained dogs . Having searched the house and not found anything , the police officers started searching the yard and the adjacent buildings . The applicant alleged that during the search of the outside LOC , the front door of his house was left open and people , including police officers , were coming and going . Moreover , a group of police officers was standing by the front door while the others continued the search . Having found nothing outside the house , the head of the police team announced that they would again search inside the house , to which attesting witness PERSON objected . Following the additional search the police officers found the above - mentioned plastic bag . The attesting witnesses submitted that their objections were not recorded . Moreover , they were persuaded and bullied by the police officers to sign the search record .

The applicant alleged that he was taken back to the police station where the chief of police promised that , if he renounced his political convictions and resigned from the party , no further action would be taken in relation to the cannabis . The applicant refused to make such a deal .

The applicant further alleged that he was kept at the police station TIME . There he was given a meal , including a hamburger . TIME after having eaten the meal he felt sick , started vomiting and lost consciousness . An ambulance was called and some injections were administered . According to the applicant , his meal had been laced with a drug .

On DATE criminal proceedings were instituted against the applicant under Article CARDINAL § CARDINAL of LAW on account of illegal drug possession . On DATE at TIME the applicant was formally arrested .

On DATE the investigator decided to subject the applicant to a forensic toxicological examination . The applicant alleged that he did not receive a copy of this decision . He was taken to ORG where a urine sample was taken .

It appears that on DATE , a lawyer was engaged in the case . It further appears that the applicant was questioned and denied the drug possession allegations .

On an unspecified date the plastic bag and the herbal substance , weighing QUANTITY , were examined by a forensic expert and the substance was found to be cannabis .

On DATE the applicant was formally charged with illegal drug possession and detained by a court order .

On DATE , a toxicological expert opinion was produced , according to which the applicant ’s urine sample contained traces indicating cannabis consumption .

On DATE the lawyer filed a motion with ORG seeking to stop the prosecution on the ground that , inter alia , the search had been conducted with numerous procedural violations . A similar complaint was lodged on DATE .

According to the applicant , on an unspecified date his lawyer requested a further examination of the cannabis and the plastic bag by a forensic expert . This request was rejected . He further alleged that , during the investigation , the police officers put pressure on the CARDINAL attesting witnesses not to attend confrontations which had apparently been requested by the applicant .

On DATE the applicant ’s lawyer applied to ORG , challenging the investigator ’s impartiality and complaining in detail about the unlawful manner in which the search had been executed , alleging , inter alia , that the bag containing cannabis had been planted by the police officers conducting the search .

On DATE the applicant ’s lawyer complained to ORG that the search warrant had lacked proper grounds and that the search had been conducted with numerous procedural violations . The lawyer argued that the investigator had failed to obtain any evidence when investigating his allegations of irregularities . Such evidence could have been obtained by questioning the applicant ’s neighbours and the doctor who had provided first aid to his wife , who had been present during the search , and by holding confrontations between the applicant and the attesting witnesses .

On an unspecified date the applicant ’s criminal case was brought before ORG .

It appears that , in the proceedings before ORG , the applicant ’s lawyer filed a motion seeking to exclude the results of the search as unlawfully obtained evidence . It further appears that ORG did not take any decision on this motion .

Attesting witnesses PERSON and PERSON both testified before the trial court . In reply to the questions put by the applicant ’s lawyer PERSON stated , inter alia , that he and PERSON were watching the police officers as much as they could while entering and going out of the rooms together with the police officers . When giving his account of the events PERSON stated among other things that he helped CARDINAL of the police officers to reach the water boiler from which a plastic bag and a plate were taken out . He further stated that both the plastic bag and the plate were covered with dust . However , the plate was dustier compared to the plastic bag . Both PERSON and PERSON stated that they did not remember whether they were informed of their right to have the objections that they might have included in the search record and that the applicant refused to sign it stating that the discovered bag did not belong to him .

On DATE the ORG found the applicant guilty as charged and sentenced him to one and a half years’ imprisonment . In doing so , ORG relied on , inter alia , the witness testimony of the police officers who had conducted the search , including GPE , GPE . , GPE , GPE , GPE and GPE . , and of the CARDINAL attesting witnesses , as well as the results of the analysis of the applicant ’s urine sample .

On DATE the applicant ’s lawyer lodged an appeal . The lawyer argued , inter alia , that the search of the applicant ’s home had been conducted with a number of procedural violations and therefore its results could not be used as evidence . In particular , he claimed that the search warrant was not presented to the applicant to get acquainted with it , no signature was obtained from him in this respect and that his objections were not included into the record of the search . He further argued that the search had been authorised by the court on the basis of fabricated police materials and therefore lacked any valid grounds . He also submitted that , according to LAW , ORG should not have relied on the testimony of the police officers , since they had been summoned and examined solely in connection with the performance of their procedural duties and not in connection with the irregularities alleged by the applicant . Furthermore , ORG had failed to take into account the submissions of the attesting witnesses which confirmed the applicant ’s allegations of irregularities .

On DATE the Criminal and Military Court of Appeal upheld the applicant ’s conviction finding , inter alia , that no significant procedural violations had taken place during the investigation of the case . ORG relied on the same evidence , except for the testimony of the police officers .

No appeal was lodged against this judgment within the DATE statutory time - limit , so it became final .

On DATE the applicant was released on parole .

On DATE an advocate holding a special licence lodged an appeal on points of law on behalf of the applicant against the final judgment of ORG . He requested that the judgment of ORG be quashed and the case be remitted for further investigation due to the procedural violations taken place during the investigation , including the execution of the search .

On DATE ORG examined the appeal on the merits and decided to dismiss it finding that , inter alia , no significant violations of the procedural law had taken place which required the case being remitted for further investigation .


Violation of Article 6 - Right to a fair trial (Article 6-1 - Civil rights and obligations;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

All the applicants were parties to civil proceedings in which the firstinstance and appeal courts found in their favour . These judgments became final but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law or incorrect assessment of evidence by lower courts ( for more details see the Appendix ) .


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

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Robert Spano

The applicants were or still are detained in FAC , either in pre - trial detention or serving prison sentences . The first to fifth applicants and the tenth and thirteenth applicants were placed in cell no . CARDINAL , DATE applicants and DATE applicants were placed in cell no . CARDINAL , and the fourteenth applicant was placed in cell no . CARDINAL .

The fifth applicant was transferred to FAC on DATE , the seventh applicant was released on DATE and the ninth applicant was released on DATE .

The applicants submitted that ORG was overcrowded , resulting in a situation where each inmate was allocated MONEY . m of personal space . The prison consisted of CARDINAL cells which each had CARDINAL beds and QUANTITY mattresses on the floor , and CARDINAL cells which each had CARDINAL beds . As regards the cells in which the applicants were held , their measurements were as follows : cell no . CARDINAL measured QUANTITY m. and accommodated CARDINAL detainees , cell no . CARDINAL measured QUANTITY m. and accommodated CARDINAL detainees , and cell no . CARDINAL measured QUANTITY m. and accommodated QUANTITY detainees . DATE applicants slept on the floor , which was standard practice for other inmates as well .

The applicants pointed out that the toilets in the cells were not partitioned off from the rest of the cells , and there was no hot water . ORG of the cells , in addition to overcrowding , exposed the inmates to contagious diseases and created various psychological problems , in respect of which no medical treatment was provided . Detainees lacked access to adequate dental care .

The applicants stressed that inmates were not sufficiently separated according to their health conditions or according to whether they were in pre - trial detention or serving prison sentences , as was required by LAW .

The applicants also contended that they were confined to their cells for TIME per day , in the absence of any recreational or educational activities .

Meals , which were insufficient and of poor quality , were served in the cells and consumed on the beds .

On DATE the applicants lodged a complaint with ORG , arguing that the conditions of their detention were very poor , but did not receive any reply .

The Government submitted that ORG consisted of CARDINAL cells , each furnished with a table , stools , a fridge , cooking stoves , wardrobes and a television . Cells were sufficiently ventilated and heated and had adequate natural light . Additionally , they were regularly cleaned and disinfected .

In respect of prison overcrowding , the ORG argued that the prison had accommodated CARDINAL inmates at the time the applicants had lodged their application with the ORG , only slightly exceeding its capacity of CARDINAL detainees .

All detainees had access to adequate medical care provided by the prison doctor . In case of emergency , or when a serious incident occurred , detainees were transferred to ORG or FAC in GPE . Those suffering from contagious diseases were held separately or transferred to hospital . The Government provided information showing that some of the applicants had had consultations with doctors in respect of various conditions .

There were CARDINAL available places for detainees who wished to work . In addition , detainees had the opportunity to attend educational programmes or other recreational activities which were scheduled from time to time . Most of the applicants participated in some of the educational courses .

As regards ORG meals , the ORG submitted a menu from DATE selected at random to demonstrate that meals were varied .


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

All the applicants were party to civil proceedings in which the firstinstance and appeal courts found in their favour . These judgments became binding and enforceable but were subsequently quashed by the supervisory review courts on the ground of incorrect application of substantive law or incorrect assessment of evidence by lower courts ( for more details see the Appendix ) .


CASE OF YORDANOVA AND OTHERS v. BULGARIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

NORP The applicants’ fathers owned printing houses in GPE , which were nationalised by the NORP authorities in DATE and DATE . After that their assets were taken over by a ORG - owned printing house . In DATE the latter was registered as a ORG - owned company , currently named ‘ PERSON i nauka’ ORG . The company is managed by the Minister of Education . Among the tasks of the company is the printing of school textbooks .

In DATE ORG adopted ORG ( hereinafter “ LAW ” – see paragraph CARDINAL below ) .

In DATE the first and second applicants and their mother applied under LAW to receive compensation for the nationalised printing house . As to the manner of compensation , they expressed preference to receive shares in ‘ LAW . In a decision of DATE the Minister of ORG allowed their request , stating that the exact number of shares to be awarded would be determined after a valuation of the assets of the former printing house .

NORP Despite that , in another decision dated DATE the Minister rejected the request for compensation . That decision was quashed by ORG in a final judgment of DATE , on the ground that it impermissibly modified the previous one , which had become final .

After that an expert prepared a valuation of the nationalised property , which was confirmed by the Minister of ORG on DATE . It stated that the first and second applicants and their mother were entitled to compensation for MONEY ( ORG , equivalent of MONEY ( ORG ) ) , which equalled CARDINAL shares in ‘ PERSON i nauka’ ORG , each with a face value of BGN CARDINAL ( EUR CARDINAL ) .

NORP However , on DATE the Minister adopted another decision , stating that the applicants and their mother were to receive compensation bonds instead of shares . He relied in particular on the fact that ‘ PERSON i nauka’ ORG had been included in the list under LAW of the concluding provisions of the Privatisation and Post - Privatisation Control Act DATE ( hereinafter “ the LAW ” – see paragraph CARDINAL below ) . Once again , that decision was quashed by ORG , in a final judgment of DATE , as it impermissibly modified the previous decisions awarding the first and second applicants and their mother compensation in the form of shares , which had become final . The domestic court held in particular that LAW of the concluding provisions mentioned above could not justify such a modification .

In DATE the first and second applicants and their mother filed with the Minister of ORG and other ORG bodies several complaints , requesting that the compensation procedure be completed . In a letter dated DATE ORG ) informed them that ORG was seeking “ a lawful solution ” , which “ would not infringe upon the public interest and would not be in breach of LAW ] ” . In another letter dated DATE the parliamentary ORG informed the applicants and their mother that it had urged the Minister of ORG to find a solution , pointing out that with the enactment of ORG had sought “ to restore historical justice ” .

The first and second applicants’ mother passed away in DATE and was succeeded by them .

In DATE the third applicant , her mother and her sister applied under LAW to receive compensation for the nationalised printing house . They stated that they preferred to receive shares in ‘ LAW .

Their request was allowed by the Minister of ORG in a decision of CARDINAL DATE .

In DATE , DATE and DATE an expert drew up CARDINAL valuations of the expropriated property . The last of them , stating that the third applicant , her mother and her sister were entitled to compensation for ORG MONEY ( the equivalent of FAC ) , equalling CARDINAL shares in ‘ ORG i nauka’ ORG , each with a face value of BGN CARDINAL , was confirmed by the Minister of Education on DATE .

Despite the above developments , in another decision dated CARDINAL DATE the Minister stated that the third applicant , her mother and her sister were to receive compensation bonds instead of shares . As in the procedure described above concerning the first and second applicants , he relied on the fact that the company had been included in the list under LAW of the concluding provisions of LAW ( see paragraph CARDINAL below ) . That decision was quashed by ORG in a final judgment of DATE , on the ground that it impermissibly modified the previous decisions concerning the compensation to be provided , which had become final . The domestic court again held that LAW of the concluding provisions mentioned above could not justify such a modification , as it was not applicable to pending compensation proceedings .

The third applicant ’s mother and sister passed away in DATE and DATE respectively , leaving the third applicant her father ’s only surviving heir .

In DATE ORG requested ORG to authorise the transfer to private parties of shares in ‘ PERSON i nauka’ ORG . The authorisation , related to the claims of all applicants , was given on DATE .

The Ministry took no further measures to complete the compensation procedures .

NORP In DATE the third applicant wrote a letter to the executive director of ‘ PERSON i nauka’ ORG , urging him to enter into the company register her shareholding and to present to her copies of all decisions taken by the company ’s general meeting after DATE . She received no response .

NORP In a decision of CARDINAL DATE ORG authorised the sale by ‘ PERSON i nauka’ ORG of real properties owned by the company ( such an authorisation was required by law ) . The applicants applied for the judicial review of that decision , arguing that it affected their rights as shareholders . In a judgment of DATE ORG dismissed their application , noting that they were not shareholders in the company , since the compensation procedures had not been completed with the actual transfer of shares to them in accordance with the law .


CASE OF PARTNERS 2000 KFT AND OTHERS v. HUNGARY

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)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first applicant , Partners CARDINAL Kft , is a NORP limited liability company with its seat in PERSON . It is owned and run by the second applicant . The second applicant is a NORP national , who was born in DATE and lives in PERSON . The third applicant is the second applicant ’s wife , who was born in DATE and lives in PERSON . The fourth applicant is the second and third applicants’ minor child , born in DATE .

On DATE Parliament enacted Act no . CXXXIV of DATE on ORG of the Youth and on ORG . The LAW was published on DATE .

According to the LAW , tobacco retail was to become a ORG monopoly ( exercised through a ORG - owned company , ORG ) , and tobacco retailers would become authorised through a concession tender , advertised on DATE . The time - limit for applying was CARDINAL DATE .

Entities or persons previously engaged in tobacco retail had no privileges in the tender . Legal persons were not entitled to apply .

The Act was subsequently amended on several occasions , and the final version was enacted on DATE , with entry into force on DATE . Government Decree no . CARDINAL . ( VI.CARDINAL . ) , which contained the detailed rules for the operations of the future concession - holders , was published on DATE , that is , after the completion of the tendering process , the results of which had become public on DATE . The decision about the tenders was taken by PERSON itself .

The first applicant , Partners CARDINAL Kft had been active in tobacco retail for DATE . Since , however , it was not entitled to apply for a concession under the new law , the second applicant applied personally for CARDINAL , on several occasions . However , PERSON turned down his applications , informing him that he had not obtained a tobacco retail concession . The decisions said that his applications did not fully meet the requirements , without developing the shortcomings .

No compensation is available for ex - tobacco - retailers who , by not being awarded a concession , lost part of their livelihood . The refusals , such as those of PERSON , were not subject to any legal remedy .

The applicants submitted that others in comparable situations – and in the case of those who had never been doing tobacco retail beforehand , in non - comparable situations – were granted concessions , which difference in treatment can not be explained by any circumstance other than political adherence .


Preliminary objections dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-3-a) Ratione materiae;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in GPE . He is a lawyer .

In a judgment of CARDINAL DATE , ORG sentenced him to DATE imprisonment for embezzlement and forgery . On DATE he was imprisoned in the police station ’s detention facility in GPE ( Centrul de reţinere şi arestare preventivă nr . DATE secţia CARDINAL Poliţie ) , where he started serving his sentence . The judgment of ORG was upheld by a final judgment of ORG of DATE , which was finalised on DATE .

The applicant lodged CARDINAL applications for a stay of execution of sentence under LAW b ) and c ) of the former LAW ( “ the ORG ” ) ( see paragraph CARDINAL below ) . He submitted that he was married and had a child who was DATE , born on DATE , whom he wanted to look after , and that his family were experiencing financial and social difficulties on account of his detention .

In a judgment of DATE , ORG Instance dismissed his first application on the grounds that a stay of execution of sentence provided for by LAW b ) of the ORG for convicted mothers up to their child ’s first birthday had to be interpreted strictly and that the applicant could not seek application of that provision by analogy . It also found that the financial and family difficulties referred to by the applicant did not fall within the category of special circumstances required by LAW § CARDINAL c ) of the ORG to allow a deferral of sentence , especially as they had existed prior to his placement in detention .

On appeal by the applicant , ORG upheld the judgment of ORG in a judgment of CARDINAL DATE .

In a judgment of CARDINAL DATE , ORG Instance dismissed the second application lodged by the applicant under LAW ) of the ORG on the grounds that the statutory conditions were not satisfied . In particular , the court found that enforcement of the sentence did not endanger the applicant ’s personal or family situation . In a judgment of CARDINAL DATE , ORG dismissed an appeal by the applicant against that judgment .

NORP The applicant was detained in a number of different prisons , including the GPE police detention facility ( from CARDINAL to DATE ) , ORG ( from CARDINAL to DATE , DATE to DATE and CARDINAL DATE to CARDINAL DATE ) , ORG ( from CARDINAL to DATE ) and FAC ( from DATE to CARDINAL DATE and from CARDINAL DATE to CARDINAL DATE ) .

With regard to the GPE police detention facility , the applicant stated that he had been detained there with CARDINAL other detainees , in cell no . CARDINAL , which he said measured CARDINAL x QUANTITY m. He said that the cell had CARDINAL window , measuring QUANTITY . cm , which had CARDINAL rows of bars across it and therefore did not let natural light in . He added that the toilets were dirty and separated from the rest of the cell only by a curtain . Lastly , he stated that running water was available TIME .

With regard to ORG , the applicant said that he had been detained in cell no . CARDINAL with CARDINAL other detainees . He said that the cell measured CARDINAL x QUANTITY . m and had CARDINAL window , measuring CARDINAL x CARDINAL sq . m , with bars and a grille and thus no natural light . He added that the cell had been damp and had an unpleasant smell .

With regard to ORG , he stated that he had been detained there with CARDINAL other detainees in a QUANTITY . sq . m. cell and that there had been no running water .

Regarding Giurgiu Prison , he said that he had been detained in an overcrowded cell . He alleged , among other things , that hot water had only rarely been available and that the mattress and bed linen had been dirty . He also complained of the presence of cockroaches , rats and bed bugs .

The Government stated that in the GPE police detention facility the applicant had been held in a CARDINAL sq . m cell containing CARDINAL bunk beds , a television , natural light and toilets measuring QUANTITY m.

At LOC the applicant had been successively detained in CARDINAL cells , varying from QUANTITY . m to QUANTITY . m in size and containing CARDINAL bunk beds . They added that the cells were equipped with toilets , a kitchenette and ventilation and had natural light .

At ORG the applicant ’s cell had measured QUANTITY . m and contained CARDINAL beds . They specified that it was equipped with toilets , a kitchenette , ventilation and natural light .

At FAC the applicant had been detained successively in CARDINAL cells , varying from QUANTITY . m to QUANTITY . m in size and containing space for CARDINAL detainees . They contained individual beds , a table allowing the inmates to eat their meals together , CARDINAL bedside tables , a small bench , a television socket and a shoe cupboard . They added that the cells all had toilets measuring QUANTITY m , but did not specify whether these were included in the cell area . They stated , lastly , that the cells and the laundry provided to inmates were in good condition .


André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

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

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

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

NORP The applicant brought civil proceedings against his former employer , claiming that he had been dismissed unlawfully . He asked to be reinstated and sought damages of MONEY ( ORG corresponding to about LAW ) . His claim was rejected at first instance by GPE , but granted almost in its entirety on appeal by ORG on DATE .

The other party , his former employer , a company , appealed in cassation in DATE . The applicant submitted a written response to the cassation appeal . His response was dated DATE ; it was received at ORG on DATE . The file was then sent by ORG to ORG ( “ the SCC ” ) for examination . The SCC gave the file a number in DATE and scheduled a hearing for DATE .

In the meantime , a new Code of Civil Procedure was adopted in DATE , a major part of which was to enter into force on DATE . According to paragraph CARDINAL ( CARDINAL ) of the PERSON ’s Transitional and Concluding Provisions , all labour disputes pending before the SCC and in which a hearing had been scheduled for DATE had to be transferred to “ the appropriate court of appeal ” .

On DATE the SCC terminated the proceedings before it and sent the case to ORG ( “ SCA ” ) for information and action . The applicant was not informed of the transfer of the case to the SCA and the applicant ’s written response to the cassation appeal of his former employer was not transmitted to the SCA .

On DATE and DATE the SCA sent CARDINAL letters to the other party , the applicant ’s former employer , informing the company that the proceedings in the case it had brought would be terminated if it failed to pay the requisite court fee . The company replied on DATE that it had paid the fee .

The SCA scheduled a hearing for DATE . It notified the parties of the hearing via publication in ORG , in accordance with the applicable legal provision ( see paragraph CARDINAL below ) . The record of the hearing showed that the SCA had noted that the parties had been regularly notified and had not sent representatives , and also that the case was ready for decision .

The SCA examined the company ’s cassation appeal on the merits . It delivered a final judgment on DATE , quashing the decision of ORG which had upheld the applicant ’s claim . The SCA noted in its judgment that the applicant had made no submissions in respect of the arguments and claims put forward in the cassation appeal . The court then observed that , taking into account the submissions of the company and the available information in the case file , the company ’s counterclaims against the applicant were justified . The SCA found in favour of the applicant ’s former employer .

The applicant only learned about this decision in DATE when he inquired at the ORG ’s registry about the date of the hearing in his case before the SCC , as he had repeatedly done on previous occasions in DATE and DATE . Until then he believed the hearing was going to take place on DATE as scheduled and as the ORG ’s website continued to indicate at the time .

A new Code of Civil Procedure ( “ the DATE Code ” ) was adopted in DATE and the larger part of it entered in force on DATE . According to paragraph CARDINAL ( CARDINAL ) of the PERSON ’s Transitional and Concluding Provisions , cassation appeals in labour disputes concerning unlawful dismissals , which were pending before the SCC and in which a hearing had been scheduled for a date subsequent to DATE , had to be transferred to “ the competent court of appeal ” .

Article CARDINAL of LAW DATE ( “ the DATE Code ” ) , in force until DATE , provided that before DATE the SCC should publish in ORG the dates on which it would hold hearings and the cases to be heard during DATE . The second sentence in that provision stated that “ when the circumstances so required , the parties received notice of the hearing ” . This was reproduced in LAW of the DATE Code .

NORP The general rules for summoning to court hearings can be found in LAW and in LAW . Those stipulate , inter alia , that a court notice or a summons has to be delivered in person or via an intermediary , by a court clerk or by registered mail , at the address given in the case .

Article CARDINAL of the DATE Code provides that an interested party can request the reopening of civil proceedings which have ended with a decision which has acquired res judicata . Requests for reopening are examined by the SCC ( LAW , the DATE Code ) . Reopening can be requested within DATE as from the moment in which a party became aware of the facts that would serve as a ground for the reopening ( Article CARDINAL , the CARDINAL Code ) . Reopening in such cases can be requested on the basis of specific grounds , which are exhaustively listed in the DATE Code .

Article CARDINAL § CARDINAL(CARDINAL ) of the CARDINAL Code ( and before that Article QUANTITY of the DATE Code ) stipulates in particular that a party to a case can seek reopening when in breach of the relevant rules the party has been deprived of the opportunity to take part in the proceedings and has not been adequately represented , or when the party could not appear in person or be represented before the court for reasons beyond that party ’s control .

In an interpretative decision , delivered by a plenary of the court and binding all courts , the SCC clarified in DATE the type of circumstances necessitating a departure from the special procedure for summoning to a cassation hearing ( тълк. реш. № CARDINAL от CARDINAL г. по тълк. гр. д. № CARDINAL/CARDINAL ) . It held that failure in such cases to summon the parties in accordance with the general rules for summoning ( see paragraph CARDINAL above for those rules ) could be a ground for allowing reopening of the proceedings . Such circumstances include the rescheduling of a hearing for a new date , despite the initial summoning to a different date having been fully in compliance with the legal requirements . In another interpretative decision of DATE the SCC further clarified that the party seeking reopening of the proceedings is allowed to submit evidence before the SCC in support of his or her claim that the circumstances justified reopening ( тълк. реш. № CARDINAL от CARDINAL г. по т. д. № CARDINAL/CARDINAL , PERSON ) .

The SCC has allowed requests for reopening on the above - indicated grounds in a number of decisions ( see , among many others , реш. № CARDINAL от QUANTITY ORG по гр. д. № CARDINAL/CARDINAL г. , ORG ; реш. № CARDINAL от CARDINAL на ВКС по гр. д. DATE г. , ORG ; реш. № CARDINAL от QUANTITY ORG по гр. д. № CARDINAL г. , ORG ; реш. № CARDINAL от QUANTITY ВКС по гр. д. № DATE г. , ORG ) , including in comparable circumstances to those of the applicant in the present case ( реш. № CARDINAL от QUANTITY гр. д. № DATE г. ) . In CARDINAL other decisions in cases with similar circumstances to those of the applicant , different formations of the SCC found that there were no grounds for reopening in the specific circumstances of these cases and did not allow it ( see реш. № CARDINAL от CARDINAL по гр. д. № DATE , PERSON ; реш. № CARDINAL от CARDINAL по гр. д. № CARDINAL/CARDINAL , PERSON ) .


András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before ORG by Odvetniška Pisarna Tine Šnajder Paunović , a law firm practising in GPE .

NORP On DATE , following her dismissal from work , the applicant brought a claim against her former employer in ORG , requesting that the dismissal be declared unlawful and that she be reinstated to her previous position . She alleged , inter alia , that her previous employer had transferred its entire printing business to another company , and that this company ( by virtue of the applicable labour law ) had a duty to assume the contractual obligations of her previous employer .

On DATE ORG dismissed the applicant ’s claim , having established that her employer had in fact closed its printing business and terminated the employment contracts of all its employees in the printing department . The court found that the termination was justified , having regard to the circumstances . Moreover , it held that the applicant ’s previous employer had not transferred its printing business , but had merely sold the printing equipment to another company .

The first - instance judgment included information on legal remedies and drew the applicant ’s attention to the fact that the provisions of LAW concerning the amendment and perfection of pleadings did not apply to appeal proceedings .

On DATE the applicant lodged an appeal with ORG .

On DATE ORG dismissed the applicant ’s appeal , finding that the first - instance judgment did not contain any error of fact or law . The court confirmed that the sale of the printing equipment had not constituted a transfer of the business , and that the applicant was therefore not entitled to continue her employment with the new owner of the equipment .

On DATE the applicant lodged an appeal on points of law . The appeal document was submitted with a power of attorney , which was given for the specific purpose of lodging the appeal in the applicant ’s case . The power of attorney was signed by the applicant and her lawyer . The appeal document itself bore the lawyer ’s stamp , but was not signed by either the applicant or her lawyer .

On DATE ORG rejected the applicant ’s appeal on points of law as inadmissible for failure to meet the formal requirements . The court explained that sections CARDINAL and CARDINAL of LAW set down minimum requirements for appeals on points of law : identification of the judgment which was subject to appeal and a signature of either the appellant or the lawyer . ORG noted that the appeal on points of law was not signed by either the applicant or her lawyer , rendering it incomplete . According to the rules of civil procedure , an incomplete appeal on points of law was to be rejected forthwith , without a party being given the opportunity to perfect it .

On DATE the applicant lodged a constitutional complaint with ORG , alleging that CARDINAL of the component parts of the appeal on points of law was the original power of attorney signed by both herself and her lawyer . The applicant was of the view that the sanction of rejecting her appeal on points of law constituted an excessive interference with her right to judicial protection and her right of appeal . The applicant pointed out that ORG rejection had precluded her right to appeal , as the time - limit for lodging an appeal had meanwhile expired . In her opinion , in labour dispute cases such as her own , where workers , as the weaker parties , were aiming to protect their socioeconomic status , they should not be made to suffer such grave consequences . In this connection , the applicant claimed that the interference complained of was disproportionate to the aim pursued by the legislature . According to a parliamentary bulletin containing draft laws and explanatory commentary , the DATE amendment to LAW which had , inter alia , removed the possibility of amending or perfecting incomplete pleadings in appeal proceedings – had been passed with a view to tackling the backlog of cases pending before the higher courts , thereby guaranteeing a party ’s right to trial within a reasonable time . The applicant , however , pointed out that the rule on the immediate rejection of incomplete pleadings did not affect an appellant ’s duty to pay court fees . While the higher courts continued to call upon appellants to pay fees instead of rejecting their applications forthwith , the applicant had not been afforded the possibility of remedying the procedural defect in her appeal on points of law . Having regard to the unchanged rules regarding the payment of fees , the applicant maintained that the rule in question did not in fact pursue the legitimate aim of accelerating proceedings .

On DATE ORG dismissed the applicant ’s constitutional complaint , finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant .

NORP The relevant provisions of LAW ( Official Gazette no . CARDINAL/CARDINAL , with a further amendment passed on DATE , Official Gazette no . CARDINAL ) state :

In extraordinary judicial review proceedings , a party may only perform procedural steps through a representative who is a practising lawyer . ”

“ If pleadings are unclear or do not contain all of the information necessary for proceeding with the case , the court shall request the person submitting the pleadings to amend or perfect them . ...

Upon ordering the amendment or perfection of pleadings , the court shall fix a time - limit for such changes .

If the pleadings are not amended or perfected so as to be capable of being dealt with , the court shall reject them .

“ An appeal shall contain

a reference to the decision which is subject to appeal ;

a statement as to whether the decision is being challenged in whole or in part ;

the grounds of appeal ; and

the signature of the appellant . ”

“ In appeal proceedings , the provisions of section CARDINAL of this LAW concerning the amendment or perfection of incomplete pleadings are not applicable .

“ An out - of - time , incomplete or inadmissible appeal shall be rejected by order of the presiding judge of the court of first instance without a hearing .

An appeal is incomplete if it does not contain the elements referred to in the first and fourth points of LAW CARDINAL of this Act .

“ When the case file for the appeal arrives at the court of second instance , the reporting judge shall decide whether the appeal is ... complete ... An incomplete ... appeal shall be rejected by order of the reporting judge , if the presiding judge of the panel of the court of first instance has not already done so ( section CARDINAL ) .

“ An appeal on points of law may be lodged against a final judgment of a court of second instance within DATE of service of a transcript of the judgment ( in the case of a statutorily permitted appeal ) , or within DATE of service of a ORG decision granting leave to appeal ( in cases of leave to appeal ) .

An appeal on points of law shall be permitted if the value of the subject of the part of the final judgment which is in issue exceeds ORG CARDINAL,CARDINAL ( statutorily permitted appeal ) .

If an appeal on points of law is not permitted under the provisions of the preceding subsection , it may only be lodged if leave to appeal is granted by the court under section CARDINAL.a of this LAW .

“ An appeal on points of law may be lodged :

on the grounds of a violation of the essential requirements of civil procedure referred to in the second subsection of section CARDINAL of the present Act , except where the violation concerns an issue of territorial jurisdiction ... or arbitration agreement ... , or if the judge of the court of first instance has given a judgment without hearing the case ... , or if the court has adjudicated upon a claim which is subject to another action which is pending ... , or if the public has been wrongfully excluded from the substantive hearing ... ;

on the grounds of a violation of the essential requirements of civil procedure referred to in the first paragraph of section CARDINAL of this Act in the proceedings before the court of second instance ; or

on the grounds of a violation of substantive law .

An appeal on points of law may not be lodged on the grounds of erroneous or incomplete determination of the facts .

“ If not otherwise provided for in sections CARDINAL - CARDINAL , the provisions of this LAW concerning appeals against judgments ( sections ... CARDINAL , CARDINAL ) ... shall be applicable mutatis mutandis to proceedings concerning appeals on points of law . ”


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Prevent unauthorised entry into country);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Inhuman treatment;Prohibition of torture);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Serbia);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Ganna Yudkivska;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants were born on CARDINAL DATE and PERCENT respectively . Having left their home country , GPE , they travelled through GPE , GPE , and GPE , and entered the territory of ORG in GPE . From there , they transited through the former GPE . Mr PERSON spent TIME on NORP territory ; whereas Mr GPE DATE . At last , on DATE they arrived in the PERSON transit zone situated on the border between GPE and GPE . On DATE , they submitted applications for asylum .

From that moment on , the applicants stayed inside the transit zone , which they could not leave in the direction of GPE . They alleged that the transit zone was , in their view , unsuitable for a stay longer than a day , especially in the face of their severe psychological condition . They were effectively locked in a confined area of QUANTITY , part of the transit zone , surrounded by fence and guarded by officers ; and were not allowed to leave it for GPE . They claimed that they had no access to legal , social or medical assistance while in the zone . Moreover , there was no access to television or the Internet , landline telephone or any recreational facilities . They submitted that they stayed in a room of QUANTITY containing beds for CARDINAL .

The Government submitted that the containers measured QUANTITY . There were CARDINAL beds in each container and an electric heater . The number of asylum - seekers never exceeded CARDINAL in the material period . Hot and cold running water and electricity were supplied . CARDINAL pork - free meals were available DATE to the applicants in a dining - container . Medical care was available for TIME DATE by doctors of ORG .

According to the Report of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) ( see paragraphs CARDINAL below ) , asylum seekers in the GPE zone were accommodated in rooms of QUANTITY in ground surface that were equipped with CARDINAL beds fitted with clean mattresses , pillows and bedding . The accommodation containers had good access to natural light and artificial lighting , as well as to electric heating . Further , there was a narrow designated area in front of the containers to which foreign nationals had unrestricted access during DATE . The sanitary facilities were satisfactory . The ORG delegation had a good impression of the health - care facilities and the general health care that was provided to foreign nationals in the establishment .

The applicants , both illiterate , were interviewed at once by ORG ( “ the asylum authority ” ) . By mistake , the first applicant was interviewed with the assistance of an interpreter in PERSON , which he does not speak . Both applicants’ mother tongue was GPE . According to the record of the meeting , the asylum authority gave the first applicant an information leaflet on asylum proceedings , which was also in PERSON . The interview lasted TIME . An GPE interpreter was present for the second applicant ’s interview , which lasted TIME .

According to the notes taken during the interviews GPE was the first country where both applicants had applied for asylum .

By a decision delivered on DATE of DATE , the asylum authority rejected the applicants’ asylum applications , finding them inadmissible on the grounds that GPE was to be considered a “ safe third country ” according to Government Decree no . CARDINAL . ( VII.CARDINAL . ) on safe countries of origin and safe third countries ( “ the Government Decree ” , see paragraph CARDINAL below ) . The asylum authority ordered the applicants’ expulsion from GPE .

The applicants challenged the decision before ORG . On DATE the applicants , through representatives of ORG High Commissioner for Refugees ( “ ORG ” ) who had access to the transit zone , authorised CARDINAL lawyers acting on behalf of ORG to represent them in the judicial review procedure . However , the authorities did not allow the lawyers to enter the transit zone to consult with their clients until TIME of CARDINAL September CARDINAL , that is , after the court hearing .

On DATE the court held a hearing regarding both applicants with the assistance of an GPE interpreter . Both applicants stated that they had received a document from the NORP authorities written in NORP , which they could not understand , and that they had been ordered to leave NORP territory . At the hearing , the second applicant submitted that he had applied for asylum in GPE , but his application had not been examined .

The court annulled the asylum authority ’s decisions and remitted the case to it for fresh consideration . It relied on section CARDINAL(CARDINAL ) of the Government Decree and argued that the asylum authority should have analysed the actual situation in GPE regarding asylum proceedings more thoroughly . It should also have informed the applicants of its conclusions on that point and afforded them DATE to rebut the presumption of GPE being a “ safe third country ” with the assistance of legal counsel .

On DATE , at the request of their lawyers , a psychiatrist commissioned by ORG visited the applicants in the transit zone and interviewed them with the assistance of an interpreter attending by telephone . Her opinion stated that the first applicant ( Mr PERSON ) had left GPE in DATE partly because of a flood and partly because CARDINAL political parties had been trying to recruit him . When he refused , he was attacked and suffered injuries . The psychiatrist observed that he was well oriented , able to focus and recall memories , but showed signs of anxiety , fear and despair . He was diagnosed with post - traumatic stress disorder ( “ PTSD ” ) .

With regard to the second applicant ( Mr PERSON ) , the medical report stated that he had fled his country DATE . He had previously worked abroad , during which time his whole family had died in a flood . He had then left GPE and migrated through several countries in order to restart his life . He was found to be well oriented with no memory loss but with signs of depression , anxiety and despair . He was diagnosed with PTSD and as having an episode of depression .

Neither of the reports contained any indication of urgent medical or psychological treatment . However , the psychiatrist was of the opinion that the applicants’ mental state was liable to deteriorate due to the confinement .

According to the documents in the case file , on DATE the asylum authority informed the ORG legal representatives by telephone that a hearing would be held DATE . However , the applicants submitted that no such precise information had been given to their representatives .

Since their legal representatives were not present at the hearing , the applicants decided not to make any statement . With the assistance of an GPE interpreter , the asylum authority informed the applicants that they had DATE to rebut the presumption of GPE being a safe third country .

On DATE the applicants’ legal representatives made submissions to the asylum authority and requested that a new hearing be held , which they would attend .

On DATE the asylum authority again rejected the applications for asylum . It found that the reports prepared by the psychiatrist had not provided enough grounds to grant the applicants the status of “ persons deserving special treatment ” since they had not revealed any special need that could not be met in the transit zone . As to the status of GPE being classed as a “ safe third country ” , the asylum authority noted that the applicants had not referred to any pressing individual circumstances substantiating the assertion that GPE was not a safe third country in their case , thus they had not managed to rebut the presumption . As a consequence , the applicants’ expulsion from GPE was ordered .

The applicants sought judicial review by ORG . On DATE the court upheld the asylum authority ’s decision . It observed in particular that , in the resumed proceedings , the asylum authority had examined , in accordance with the guidance of the court , whether GPE could be regarded generally as a safe third country for refugees and had found on the basis of the relevant law and the country information obtained that it was so . It had considered the report of ORG published in DATE , the reports of DATE and DATE issued by the ORG concerning GPE together with other documents submitted by the applicants . It had established on the basis of those documents that GPE satisfied the requirements of section CARDINAL ( i ) of LAW . The court was satisfied that the asylum authority had established the facts properly and observed the procedural rules , and because the reasons for its decision were clearly stated and were reasonable .

The court further emphasised that the ORG statements given at the hearings were contradictory and incoherent . The first applicant had given various reasons for leaving his country and made confusing statements on whether he had received any documents from the NORP authorities . The document he had finally produced was not in his name , and therefore it could not be taken into account as evidence . Never in the course of the administrative proceedings had he referred to the conduct of human traffickers before his hearing by the court . The second applicant ’s statements were incoherent on the issue of the duration of his stay in GPE and the submission of a request for asylum . The applicants had not relied on any specific fact that could have led the authority to consider GPE non - safe in their respect . They had contested the safety of GPE only in general which was not sufficient to rebut the presumption .

Lastly , the court was satisfied that the authority ’s procedure had been in compliance with the law .

The final decision was served on the applicants on DATE . It was written in NORP but explained to them in GPE . Escorted to the NORP border by officers , the applicants subsequently left the transit zone for GPE without physical coercion being applied .

On DATE the transcript of the court hearing held on DATE was sent to the applicants’ lawyer . On DATE the lawyer received the GPE translation of the court ’s decision taken at the hearing . On DATE the applicants’ petitions for review were dismissed on procedural grounds , since the GPE held that it had no jurisdiction to review such cases .