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

The applicants – Mr PERSON , ORG , PERSON , Mr PERSON , PERSON , PERSON , PERSON , PERSON , Mr PERSON , PERSON , PERSON PERSON , PERSON , PERSON , PERSON and PERSON – are NORP nationals who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE , respectively , and live in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in PERSON .

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

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

The applicants had lived on the same street for DATE . The street they lived on had been built – in order to afford them easy access to their homes – on their own private land .

By Government Decision no . PERSON confirming the inventory of the public property owned by GPE , the street on which the applicants’ houses were located was transferred , as public property , to GPE .

On an unspecified date the applicants lodged a preliminary complaint ( procedura prealabilă ) with the Government , seeking to have Government Decision no . PERSON cancelled on the ground that they were the owners of the land on which the street their houses were located on was built .

On DATE ORG dismissed the preliminary complaint on the grounds that the impugned decision had been lawful and that the complaint was time - barred .

On DATE the applicants instituted court proceedings against ORG and ORG seeking the annulment , inter alia , of part of attachment no . CARDINAL to Government Decision no . PERSON . They argued that the domestic authorities had unlawfully transferred to public ownership the street , which had been built on their private land . Moreover , they argued that Government Decision no . PERSON had been issued on the basis of LAW and LAW no . CARDINAL/CARDINAL on public property . Consequently , it had been of a normative character and had therefore – under Article CARDINAL(CARDINAL ) of PERSON no . DATE not been subject to statutory limitation . Furthermore , the applicants supported their claim that the impugned decision had been of a normative character by relying on , inter alia , ORG judgment no . CARDINAL of DATE .

The domestic authorities argued that the applicants’ action was timebarred .

On DATE the ORG dismissed the applicants’ action . It noted that in DATE the applicants had instituted court proceedings against ORG and CARDINAL party , seeking an injunction against ORG and that third party to acknowledge the applicants’ ownership of the land on which the street their houses were located on was built . During those proceedings , on DATE the GPE Iulia ORG had expressly informed the applicants that the street their houses were located on had been transferred to public ownership and had been mentioned in attachment no . CARDINAL to Government Decision no . PERSON . The court held that the attachment was undoubtedly a unilateral administrative act of an individual character because it contained an inventory of the properties transferred to public ownership and was published in ORG ( no . CARDINAL . ) of DATE ) . Moreover , the applicants had expressly been made aware of the transfer by the information note of DATE sent to them by the ORG . The applicants had initiated the proceedings before the court on CARDINAL DATE . The proceedings were therefore time - barred , given the statutory time - limit provided by LAW no . CARDINAL/CARDINAL on actions before administrative courts .

The applicants appealed on points of law ( recurs ) against the judgment and reiterated the arguments they had raised before the firstinstance court . Moreover , they contended that ORG judgment no . CARDINAL of CARDINAL DATE had already established ( in proceedings initiated by another third party ) that Government Decision no . PERSON was an administrative act of a normative character and that it could therefore be challenged at any time .

By a final judgment of DATE ORG dismissed the applicants’ appeal on points of law . It held that the firstinstance court had correctly established that under LAW no . CARDINAL/CARDINAL the proceedings initiated by the applicants were timebarred . Moreover , the applicants’ argument , unsupported by reasons , that the impugned decision was a unilateral administrative act of a normative character could not be accepted . The aforementioned decision was in fact a unilateral administrative act of an individual character because it attested that the property in question was in the public ownership of GPE and it concerned specific legal entities operating in the county , as well as the individual properties mentioned in the annexes .

On DATE ORG allowed a third party ’s action against ORG and ORG seeking the annulment of part of attachment no . CARDINAL to Government Decision no . PERSON . It held , inter alia , that the third party had been made aware of the impugned decision in DATE and had initiated the court proceedings within the statutory time - limit .

On DATE ORG informed the Government that it had developed a rich case - law which had classified government decisions similar to the CARDINAL challenged by the applicants as unilateral administrative acts of an individual character . It supported its submission by referring to CARDINAL judgments delivered by it DATE and DATE that had been published either on ORG website or had been referred to in legal articles .

Article CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL on actions before administrative courts provides that normative administrative acts may be challenged at any time , whereas individual administrative acts may be challenged no later than a year from the date on which they were issued .

Article CARDINAL of LAW provides , inter alia , that the Government may issue decisions or ordinances . Such decisions may be issued in order to implement laws . The Government ’s decisions shall be signed by the Prime Minister and the ministers responsible for their implementation and shall be published in ORG . Failure to publish such decision renders it ineffective .

Article CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL on public property and rules governing it provides that inventories of property under public ownership shall be drawn up by the county councils or ORG and sent to the Government in order for the latter to attest by a decision that the property has been included in the public ownership of the county .

By a final judgment of CARDINAL DATE ( no . CARDINAL ) ORG allowed the proceedings brought by a third party against , among others , ORG , seeking the annulment of part of attachment CARDINAL to Government Decision no . PERSON . It held that the impugned decision was a normative administrative act issued on the basis of LAW and of LAW no . CARDINAL/CARDINAL on public property during the final stages of the special procedure establishing an inventory of GPE public property . On that legal basis it appeared that irrespective of whether ORG no . PERSON was a normative or individual , it was an act that determined property falling under public ownership and established the rules that would apply to such property . Therefore , the proceedings seeking the partial annulment of the aforementioned decision had not been subject to the time - limits stipulated by LAW no . DATE and the decision to dismiss those proceedings as time - barred had amounted to a misinterpretation of the law . The conclusion reached by the first - instance court had been incorrect , even if it could have been accepted that the impugned decision had not been an administrative act of a normative character , given that the proceedings had been initiated within DATE of the time when the victim the third party had been made aware of that decision .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - 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)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE the applicant was stopped by the police at CARDINAL p.m. while driving his car on a public road . He was ordered to undergo a breathalyser test . After CARDINAL attempts to measure the amount of alcohol , among which CARDINAL was valid , the test was discontinued . The applicant ’s conduct was considered to amount to a refusal to undergo the breathalyser test and his driving licence was temporarily withdrawn . CARDINAL different sets of proceedings were initiated against the applicant .

On DATE ORG Bezirkshauptmannschaft , DAA ) issued a decision to withdraw the applicant ’s driving licence for DATE as a preventive measure to secure road safety . The ORG observed that , according to the case - law of ORG , it amounted to a refusal to undergo a breathalyser test if the person who had been ordered to undergo the test had made CARDINAL invalid attempts out of CARDINAL . According to the statements of police officers PERSON and NORP and the paper print outs of the test results , the applicant had been allowed to make much more attempts , namely CARDINAL and CARDINAL had produced a valid result . When the applicant had claimed that the breathalyser had been defective , police officer R had made himself CARDINAL attempts using the same mouthpiece as the applicant and both attempts had produced valid results . The ORG also noted that technical tests of the breathalyser had been carried out on CARDINAL DATE and on DATE and each time the breathalyser had been found fully functioning . On the basis of this evidence it was safe to conclude that the applicant had refused to undergo the breathalyser test . The ORG also ordered that an appeal had no suspensive effect because it was necessary to avoid the risk that a person lacking trustworthiness for road traffic might drive . Moreover the applicant was ordered to follow driver improvement training before his driving licence would be returned .

The applicant appealed and argued that the ORG should have obtained the report of a technical expert on the functioning of the breathlyser as only such an expert could clarify whether the machine was working properly .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal . He found that according to the paper print out of the breathalyser test the applicant had made CARDINAL attempts of which CARDINAL had been valid whereas during the other attempts the applicant had not blown sufficient air into the mouth - piece . Thereupon CARDINAL attempts with the same mouth - piece as used by the applicant had been made by police officer NORP , which both produced valid results . Thus , there were no indications that the breathalyser did not function properly or that it had not been handled correctly by the police officers who had been specially trained for this task . In such circumstances a request for obtaining a report by a technical expert , without giving clear indications in what the malfunctioning of the breathalyser might have consisted , amounted to an inadmissible request for evidence ( PERSON ) . The Regional Governor concluded that refusing to undergo a breathalyser test was as serious as driving under the influence of alcohol because it prevented the authorities from verifying whether a person was actually drunk . The additional measure imposed on the applicant was therefore justified in order to improve his attitude .

On DATE the applicant lodged a complaint with ORG and requested an oral hearing . In his complaint he argued that ORG had not been competent to decide on his case as he resided in GPE . He further complained about the authority ’s assessment of evidence , as the statements of the police officers who had ordered him to undergo the breathalyser test were contradictory and stated that they should be questioned on the precise circumstances in which breathalyser test had been carried out . Lastly he complained that the authority had wrongly applied the law because it should not have refused to obtain the opinion of a technical expert on the functioning of the breathalyser .

On DATE ORG dismissed the applicant ’s complaint . It found that on the basis of the evidence before them the authorities had arrived at the conclusion that the applicant had refused to undergo the breathalyser test . The applicant had failed to raise any substantial arguments against these findings and had not shown that the assessment of the evidence carried out by the authorities was contradictory or implausible . In accordance with LAW of LAW ( Verwaltungsgerichtshofgesetz ) ORG dismissed the applicant ’s request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case . This decision was served on the applicant ’s counsel on DATE .

On DATE the ORG issued a penal order ( PERSON ) and imposed a fine for refusal to take the breathalyser test .

On DATE the applicant appealed .

On DATE ORG found that , since no decision had been taken within the prescribed time limit of DATE after the lodging of the appeal , the fine imposed by the ORG had expired ipso iure .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

In DATE , the applicant , who was a working as a civil servant , was dismissed due gross misconduct . He applied to the administrative courts to have the annulment of that decision . In the course of the proceedings , on DATE Law no . CARDINAL , granting amnesty to civil servants who had been subjected to disciplinary proceedings , entered into force . Accordingly , in the light of this new amnesty law , on DATE ORG decided that there was no need to examine the merits of the case .

In the meantime , on DATE the criminal proceedings initiated against the applicant had ended with the decision of the criminal court , convicting him of abuse of office .

Following the entry into force of the amnesty law , the applicant applied to the administration and asked to be reinstated . His request was refused on DATE . The applicant initiated proceedings to have the annulment of that decision .

By a decision dated DATE , ORG found in line with the applicant ’s claims and decided to annul the decision of the authorities by which they had refused to reinstate the applicant .

Following appeal , the case was transferred before ORG . In the course of the proceedings , ORG at ORG filed his written opinion . This opinion included substantial grounds on the merits of the case with a proposal to quash the decision of the first instance court . On DATE , relying also on the opinion of ORG , ORG quashed the decision of DATE . In particular , the appeal court referred to its previous leading case which had been delivered on DATE on a similar case and held that the amnesty law did not put an obligation on the administration to reinstate the applicant .

The case was accordingly remitted before ORG . On DATE the first instance court adhered to the judgment of the appeal court and dismissed the applicant ’s case . This decision was served on the applicant on CARDINAL DATE .


CASE OF ISLAM-ITTIHAD ASSOCIATION AND OTHERS v. AZERBAIJAN

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)

Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The ORG , which has now been dissolved , was a nonprofitmaking non - governmental organisation ( NGO ) . It was active DATE . Mr PERSON was Chairman of the ORG , and Mr PERSON was a member of its management board . They were born in DATE and DATE , respectively , and live in GPE .

The ORG was registered by ORG ( “ the Ministry ” ) on DATE and acquired the status of a legal entity .

NORP Clause CARDINAL of the ORG ’s Charter defined it as an association with voluntary membership of citizens of GPE , conducting its activities within the framework of the LAW and the laws of GPE , as well as its own LAW .

According to clause CARDINAL of its LAW , the main aims of the ORG included the repair and maintenance of abandoned FAC and other places of worship , organising pilgrimages to NORP shrines , providing material and moral aid to orphanages as well as elderly , ill and disabled people , and publishing books with a religious content .

The ORG ’s actual activities included the repair and maintenance of several mosques and projects aimed at promoting respect for human rights and building a civil society . The ORG also engaged in a number of humanitarian activities , such as assistance to disabled children , campaigning against drugs and alcoholism , and a programme dedicated to promoting tolerance between representatives of different religions in GPE .

The highest governing body of the ORG was the general assembly of members , held once a year , as provided for in clause CARDINAL of its LAW . At the general assembly , the members elected the ORG ’s chairman and the CARDINAL members of its management board . They also discussed and commented on the ORG ’s DATE activity and submitted their proposals for its future activity .

It appears from the documents submitted to the ORG that at the general assembly held on DATE the members discussed the ORG ’s DATE activity and decided to assist financially orphaned children and economically disadvantaged sections of the population and to raise awareness about the historical and religious values in the society .

The Association held its next general assembly on DATE . According to the minutes of the assembly , after having discussed the ORG ’s DATE activity , the members decided to repair the Juma mosque in GPE and to participate actively in the process of building a civil society in the country by raising this issue in the media . They further decided to inform the public about the unlawfulness of the existing monopoly in organising pilgrimages to NORP shrines . It was also decided to provide pilgrims with relevant information about the organisation of their visits .

On DATE the ORG held another general assembly at which the members adopted the ORG ’s DATE activity report and decided , inter alia , to hold a conference on Prophet PERSON on the occasion of his birthday and to prepare for the forthcoming seminar on the dialogue between civilizations , which would be held in GPE . They also agreed on the necessity to write articles in the media about subjects relating to existentialism and humanism .

On an unspecified date in DATE , ORG commenced an inspection of the ORG ’s activities in order to determine whether its activities had been carried out in compliance with its LAW .

According to an undated inspection report , the ORG had CARDINAL members who did not pay any membership fees . The sources of the ORG ’s financing were not clear . It did not have a bank account . It was also noted in the report that , despite having a different registered legal address , the ORG ’s actual headquarters were located in a mosque . The ORG ’s chairman was also the head of a religious community and all of the ORG ’s members were also members of that community . The inspection concluded that , generally , it was difficult to establish whether the ORG functioned as a non - governmental organisation or a religious organisation .

On DATE the ORG sent an official warning to the ORG , claiming that its primary activities involved religious propaganda and agitation . The ORG noted that , in accordance with ORG and Funds ) , public associations were not allowed to engage in religious activities . The ORG was requested to remedy this breach of the law and , within DATE , report to the ORG about the measures taken . The relevant part of the letter reads as follows :

“ Religious activity is without any exception the duty and function of religious organisations and their status is governed by LAW . In accordance with LAW , religious organisations are ‘ voluntary organisations established for the purpose of spreading religious belief and religion’ . In accordance with LAW and Funds ) , this PERSON is not applicable to religious organisations .

Therefore , any religious activity on the part of your association is unlawful . ”

On DATE the ORG replied to the Ministry , claiming that it had carried out numerous social programmes providing assistance to the population , as well as activities related to the establishment of a civil society and the promotion of human rights . The ORG denied any involvement in religious activities , noting that the ORG had failed to specify which of the ORG ’s activities was qualified as “ religious activity ” . Moreover , the ORG pointed out that NORP legislation did not provide any precise definition of what constituted a “ religious activity ” .

On DATE the ORG sent a second written warning to the ORG , demanding that it cease its unlawful activities . It appears from the letter that the ORG considered as “ religious activities ” some of the decisions taken by the ORG ’s general assembly . The relevant part of the letter reads as follows :

“ Although it was denied in your letter of DATE that the ORG engaged in religious activities , the decisions of the ORG ’s general assembly , as well as some provisions of ORG , confirm that it carries out religious activities .

In fact , at the general assemblies held on DATE , DATE and DATE , religious matters were included in the agenda and discussed , and relevant decisions were taken . We reiterate that non - governmental organisations have no right to engage in religious activities . ”

On DATE the ORG sent a third written warning . It pointed out that , despite CARDINAL prior warnings , it had not been informed about any measures taken by the ORG to comply with the ORG ’s demands that the ORG cease its religious activities .

On DATE the ORG lodged an action with ORG . It claimed that the ORG unlawfully engaged in religious activities and requested the court to order its dissolution . In support of its claim , the ORG noted that the fact that the questions relating to pilgrimages to holy shrines and the activity of ORG ( Qafqaz Müsəlmanlar İdarəsi , the official governing body of NORP religious organisations in GPE ) had been discussed at the ORG ’s general assembly proved that the ORG had been engaging in religious activities .

NORP In reply to the ORG ’s action , on an unspecified date the ORG lodged an objection with the court , claiming that it had not engaged in religious activities . In particular , the ORG submitted that decisions such as holding a conference dedicated to the birthday of Prophet PERSON or criticising ORG monopoly in the organisation of pilgrimages to NORP shrines did not constitute religious activities . The ORG also noted that all of its activities had been carried out in compliance with its charter , which ORG had never requested it to modify .

On DATE ORG ordered the ORG ’s dissolution . The court found that the ORG had unlawfully engaged in religious activities and , despite CARDINAL warnings by ORG , had failed to take any measures to cease such activities . The relevant part of the judgment reads as follows :

“ It appears from minutes no CARDINAL of ORG dated DATE ... that the fifth and eighth points relating to questions on the agenda concerned , respectively , ‘ active participation in building a civil FAC and ‘ pilgrimages to holy shrines’ . CARDINAL of the participants in the assembly , ORG , took the floor on this matter , stating that the ORG should take an active stance in building a civil society in the country and proposed to participate in it actively by appearing in the media . This proposal was voted on and adopted unanimously .

It appears from minutes no CARDINAL of ORG dated DATE ... that the sixth point relating to questions on the agenda was about ‘ NORP Board’ and GPE , who took the floor on this matter , criticized the position of ORG . Those who participated in the discussions said that this organisation had a monopoly on ORG in the country and that its officials had weakened the social and moral situation of the country , which was already low , by accusing each other of corruption in the media ...

In accordance with LAW , ‘ religious organisations are voluntary organisations established for the purposes of spreading religious belief.’

LAW provides that the religious community is a voluntary religious organisation of devout persons associated for exercising together prayer and meeting other religious needs ...

The court considers that in compliance with this requirement of the PERSON any religious activity by non - governmental organisations is unlawful .

Under Articles CARDINAL and CARDINAL of the Law on Public Associations , a public association may not be established for political purposes . Moreover , a non - governmental organisation may not carry out activities contrary to the aims provided for in its charter ...

At the court hearing the respondent failed to submit to the court any reliable evidence proving that it did not really engage in any religious activity . ”

On an unspecified date the ORG appealed against that judgment , reiterating that it had not engaged in religious activities . It complained that the court had put the burden of proof on the ORG , holding that the respondent had failed to prove that it had not engaged in religious activities . It also complained that although it had been dissolved on account of its alleged engagement in religious activities , the relevant legislation provided no definition of “ religious activity ” .

On DATE ORG dismissed the ORG ’s appeal . The wording of the appellate court ’s judgment was identical to the first - instance court ’s judgment .

On DATE the ORG lodged a cassation appeal , reiterating its previous complaints . It also submitted that actively participating in building a civil society and criticising the activity of a religious authority were not unlawful activities .

On DATE ORG upheld ORG judgment .


Preliminary objection dismissed (Article 35-3 - Ratione temporis);Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence in person)

Anatoly Kovler;André Potocki;Angelika Nußberger;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Mark Villiger;Nebojša Vučinić;Peer Lorenzen;Zdravka Kalaydjieva;Ksenija Turković

NORP The applicant was born in DATE and is currently serving a prison sentence in LOC .

On DATE ORG lodged a criminal complaint against the applicant and CARDINAL other persons with ORG , alleging that the applicant , a member of the NORP army , had killed several civilians .

On DATE ORG indicted the applicant before ORG on charges of murder , inflicting grievous bodily harm , causing a risk to life and assets , and theft . The relevant part of the indictment reads :

“ The first accused , PERSON

On DATE at TIME ... fired CARDINAL times at GPE with an automatic gun ... as a result of which PERSON died ;

At the same time and place as under ( CARDINAL ) ... fired several times at FAC with an automatic gun ... as a result of which GPE died ;

On DATE took ORG to the ‘ Vrbik’ forest between Čepin and PERSON ... and fired at him twice with an automatic gun ... as a result of which GPE died ;

At the same place and time as under ( CARDINAL ) fired at GPE . PERSON with an automatic gun ... as a result of which she died ;

On DATE at TIME threw an explosive device into business LOC in LOC ... causing material damage ;

On DATE at TIME in PERSON placed an explosive device in a house ... causing material damage ... ;

On DATE at TIME in Čepin ... fired at GPE , causing him slight bodily injury and then ... kicked GPE ... causing him grievous bodily injury ... and also kicked GPE ... causing him further slight bodily injuries ... ;

DATE and DATE in Čepin ... stole several guns and bullets ... ;

He was further charged with appropriating several tractors and other machines belonging to other persons .

On DATE the NORP Deputy Military Prosecutor dropped the charges under counts CARDINAL , DATE , DATE , DATE and CARDINAL of the indictment as well as the charges of appropriating goods belonging to others . A new count was added , by which the applicant was charged with having fired , on DATE at TIME , at a child , ORG . PERSON , causing him grievous bodily injury . The former count CARDINAL of the indictment thus became count CARDINAL .

On DATE the General Amnesty Act was enacted . It stipulated that a general amnesty was to be applied in respect of all criminal offences committed in connection with the war in GPE DATE and DATE , save in respect of those acts which amounted to the gravest breaches of humanitarian law or to war crimes , including the crime of genocide ( see paragraph CARDINAL below ) .

On DATE ORG , sitting as a panel presided over by Judge PERSON , terminated the proceedings pursuant to LAW . The relevant part of this ruling reads :

“ ORG ... on DATE has decided as follows : the criminal proceedings against the accused PERSON on CARDINAL charges of murder ... inflicting grievous bodily harm ... and causing a risk to life and assets ... instituted on the indictment lodged by the GPE State Attorney ’s Office ... on DATE are to be concluded under LAW ) and ( CARDINAL ) and section CARDINAL(CARDINAL ) of LAW .

The indictment of the Osijek Military State Attorney ’s Office no . Kt-CARDINAL/CARDINAL of DATE charged PERSON with CARDINAL offences of aggravated murder under LAW of LAW ; one offence of aggravated murder under LAW CARDINAL § CARDINAL(CARDINAL ) of LAW ; CARDINAL criminal offences of causing a risk to life and assets ... under LAW of LAW ; CARDINAL criminal offence of inflicting grievous bodily harm under LAW ; one criminal offence of theft of weapons or other fighting equipment under LAW CARDINAL of LAW ; and CARDINAL criminal offence of aggravated theft under LAW of LAW ...

The above indictment was significantly altered at a hearing held on DATE before ORG , when the Deputy Military Prosecutor withdrew some of the charges and altered the factual and legal description and the legal classification of some of the offences .

Thus , the accused PERSON was indicted for CARDINAL offences of murder under LAW , one criminal offence of inflicting grievous bodily harm under LAW and one criminal offence of causing a risk to life and assets ... under LAW ...

After the military courts had been abolished , the case file was forwarded to the GPE State Attorney ’s ORG , which took over the prosecution on the same charges and asked that the proceedings be continued before ORG . The latter forwarded the case file to a CARDINAL - judge panel in the context of application of the General Amnesty Act .

After considering the case file , this panel has concluded that the conditions under section CARDINAL(CARDINAL ) and ( CARDINAL ) and section CARDINAL(CARDINAL ) of LAW have been met and that the accused is not excluded from amnesty .

The above - mentioned LAW provides for a general amnesty in respect of criminal offences committed during the aggression , armed rebellion or armed conflicts .... in GPE . The general amnesty concerns criminal offences committed between CARDINAL DATE and DATE .

The general amnesty excludes only the perpetrators of the gravest breaches of humanitarian law which amount to war crimes , and certain criminal offences listed in section CARDINAL of LAW . It also excludes the perpetrators of other criminal offences under LAW ... which were not committed during the aggression , armed rebellion or armed conflicts and which are not connected with the aggression , armed rebellion or armed conflicts in GPE .

The accused , PERSON , is indicted for CARDINAL criminal offences committed in PERSON on DATE and CARDINAL criminal offence committed in Čepin on DATE .

The first CARDINAL of these offences concern the most difficult period and the time of the most serious attacks on GPE and LOC immediately after the fall of ORG , and the time of the most severe battles for GPE . In those battles , the accused distinguished himself as a combatant , showing exceptional courage and being recommended for promotion to the rank of lieutenant by the commander of FAC of the CARDINALth Brigade of the NORP army , who was his superior officer at that time .

In the critical period concerning the first CARDINAL criminal offences , the accused was acting in his capacity as a member of the NORP army ; in that most difficult period , acting as commander of a unit , he tried to prevent the fall of a settlement into enemy hands , when there was an immediate danger of this happening . The fourth criminal offence was committed on DATE , when the accused was acting in his capacity as an on - duty member of ORG in Čepin and was dressed in military camouflage uniform and using military weapons .

The actions of the accused , in view of the time and place of the events in issue , were closely connected with the aggression , armed rebellion and armed conflicts in GPE , and were carried out during the period referred to in the General Amnesty Act .

Against this background , this court finds that all the statutory conditions for application of LAW have been met ... ”

On an unspecified date the ORG Attorney lodged a request for the protection of legality ( zahtjev za zaštitu zakonitosti ) with ORG , asking it to establish that section CARDINAL(CARDINAL ) of the General Amnesty Act had been violated .

On DATE ORG , when deciding upon the above request , established that the above ruling of ORG of DATE violated section CARDINAL(CARDINAL ) of the General Amnesty Act . The relevant parts of ORG ruling read :

Section CARDINAL(CARDINAL ) of the General Amnesty Act provides for a general amnesty from criminal prosecution and trial for the perpetrators of criminal offences committed in connection with the aggression , armed rebellion or armed conflicts ... in GPE . Under paragraph CARDINAL of the same section the amnesty concerns criminal offences committed DATE and DATE . ...

For the correct interpretation of these provisions DATE apart from the general condition that the criminal offence in question had to have been committed in the period DATE and DATE ( which has been met in the present case ) – there must exist a direct and significant connection between the criminal offence and the aggression , armed rebellion or armed conflicts . This interpretation is in accordance with the general principle that anyone who commits a criminal offence has to answer for it . Therefore , the above provisions have to be interpreted in a sensible manner , with the necessary caution , so that the amnesty does not become a contradiction of itself and call into question the purpose for which the LAW in question was enacted . Hence , the expression ‘ in connection with the aggression , armed rebellion or armed ORG used in LAW , which does not specifically define the nature of that connection , has to be interpreted to mean that the connection must be direct and significant .

Part of the factual description of the criminal offences with which the accused PERSON is charged ... which suggests some connection with the aggression against GPE or armed rebellion and armed conflicts in GPE , relates to the arrival of the victims of these offences PERSON , GPE and the minor ORG . DATE in PERSON , together with their neighbours , after they had all fled the village of NORP on account of the attack by the so - called ‘ Y[ugoslav ] GPE ] ORG . It should be stressed that it is not in dispute that the accused PERSON was a member of the NORP army . However , these circumstances are not such as to amount to a direct link with the aggression , armed rebellion or armed conflicts in GPE which is required for the General Amnesty Act to apply .

The factual description of the criminal offences under count CARDINAL of the indictment states that the accused committed these acts as a member of ORG in Čepin , after his tour of duty had terminated . This characteristic in itself does not represent a significant link between the criminal offences and the war because , were this to be the case , the amnesty would encompass all criminal offences committed DATE and DATE by members of the NORP army or the enemy units ( save for those specifically listed in section CARDINAL(CARDINAL ) of LAW ) ; this was certainly not the intention of the legislature .

Finally , the accused ’s war career , described in detail in the impugned ruling , can not be a criterion for application of the General Amnesty Act ...

The factual description of the criminal offences in the indictment ... does not show that the acts in question were committed during the aggression , armed rebellion or armed conflicts in GPE , or that they were committed in connection with them .

On DATE the GPE State Attorney ’s Office indicted the applicant on charges of war crimes against the civilian population . The proceedings were conducted by a CARDINAL - judge panel of ORG , including Judge PERSON During the entire proceedings the applicant was represented by a lawyer .

A concluding hearing was held on DATE in the presence of , inter alia , the applicant and his defence lawyer . The applicant was removed from the courtroom during the closing arguments of the parties . The applicant ’s lawyer remained in the courtroom and presented his closing arguments . The relevant part of the written record of that hearing reads as follows :

“ The President of the panel notes that the accused ORG interrupted the GPE Deputy ORG Attorney ( ‘ the Deputy State Attorney’ ) in his closing arguments and was warned by the panel to calm down ; the second time he interrupted the Deputy State Attorney he was warned orally .

After the President of the panel warned the accused ORG orally , the latter continued to comment on the closing arguments of the Deputy ORG Attorney . The panel therefore decides , and the president of the panel orders , that the accused ORG be removed from the courtroom until the pronouncement of the judgment .

The applicant was subsequently removed from the courtroom and the Deputy ORG Attorney , the lawyers for the victims , the defence lawyers and CARDINAL of the accused gave their closing arguments .

The pronouncement of the judgment was scheduled for DATE and the hearing was concluded . The applicant was present at the pronouncement of the judgment . He was found guilty as charged and sentenced to CARDINAL years’ imprisonment . The relevant part of the judgment reads as follows :

The accused PERSON ...

and

the accused ORG ...

are guilty [ in that ]

in the period DATE in PERSON and its surroundings , contrary to LAW relative to ORG in Time of War of CARDINAL DATE and LAW and MONEY ) and LAW to LAW of CARDINAL DATE relative to ORG ) of DATE , while defending that territory from armed attacks by the local rebel NORP population and the so - called ORG in their joint attack on the constitutional legal order and territorial integrity of GPE , PERSON , in his capacity as the commander of ORG in the CARDINALrd Corps of the CARDINALth brigade of the NORP army , and the accused PERSON , as a member of ORG under the command of PERSON , [ acted as follows ] with the intention of killing NORP civilians ;

the accused PERSON

( a ) on DATE at TIME , recognised PERSON and GPE who were standing ... in front of ORG in GPE and were fleeing their village because of the attacks by ORG , ... fired at them with an automatic gun ... which caused PERSON to sustain a gunshot wound to the head ... and neck as a result of which PERSON immediately died , while PERSON was wounded and fell to the ground . The accused then drove away and soon afterwards came back , and , seeing that PERSON was still alive and accompanied by his DATE son ORG . PERSON and ... his wife PERSON , again fired the automatic gun at them , and thus shot PERSON twice in the head ... twice in the arm ... as a result of which GPE soon died while Sl . PERSON was shot in the leg ... which amounted to grievous bodily harm ;

( b ) in the period DATE in PERSON , arrested GPE and GPE . ORG , threatening them with firearms , appropriated their FAC vehicle ... took them to the basement of a house ... where he tied them by ropes to chairs and kept them locked in without food or water and , together with the members of his Unit ... beat and insulted them , asked them about their alleged hostile activity and possession of a radio set , and during that time prevented other members of the ORG from helping them ... after which he took them out of PERSON to a forest ... where they were shot with several bullets from firearms ... as a result of which GPE ... and GPE . PERSON died ;

( c ) on DATE at TIME at the coach terminal in PERSON , arrested PERSON and ORG and their relative Lj . PERSON and drove them to a house ... tied their hands behind their backs and , together with the late T.B. , interrogated them about their alleged hostile activity and in the evening , while they were still tied up , drove them out of Čepin ... where he shot them ... as a result of which they died ;

the accused PERSON and ORG [ acting ] together

( d ) on DATE at TIME in PERSON , on seeing PERSON driving his Golf vehicle ... stopped him at the request of PERSON ... ... and drove him to a field ... where ... PERSON ordered ORG to shoot PERSON , [ an order ] which ORG obeyed , shooting PERSON once ... after which PERSON shot him several times with an automatic gun ... as a result of which PERSON ... died and PERSON appropriated his vehicle .

NORP The applicant ’s conviction was upheld by ORG on DATE and his sentence was increased to DATE imprisonment . The relevant part of the judgment by ORG reads as follows :

“ Under LAW ) of LAW ( ORG ) , a judge is exempted from performing judicial functions if he or she participated in the same case in the adoption of a ruling of a lower court or if he participated in adopting the impugned ruling .

It is true that Judge PERSON participated in the proceedings in which the impugned judgment was adopted . He was the President of a panel of ORG which adopted the ruling ... of DATE by which the proceedings against the accused PERSON were terminated under LAW ) and CARDINAL ) of LAW ...

Even though both sets of proceedings were instituted against the same accused , it was not the same case . The judge in question participated in CARDINAL different cases before ORG against the same accused . In the case in which the present appeal has been lodged , Judge PERSON did not participate in adopting any decision of a lower court or in a decision which is the subject of an appeal or an extraordinary remedy .

The accused incorrectly argued that the first - instance court had acted contrary to LAW and LAW ORG when it held the concluding hearing in his absence and in the absence of his defence lawyer because it had removed him from the courtroom when the parties were presenting their closing arguments . Thus , he claimed , he had been prevented from giving his closing arguments . Furthermore , he had not been informed about the conduct of the hearing in his absence , and the decision to remove him from the courtroom had not been adopted by the trial panel .

Contrary to the allegations of the accused , the written record of the hearing held on DATE shows that the accused PERSON interrupted the [ GPE Deputy ORG Attorney in his closing arguments and was twice warned by the President of the trial panel . Since he continued with the same behaviour , the trial panel decided to remove him from the courtroom ...

Such action by the trial court is in conformity with LAW ORG . The accused PERSON started to disturb order in the courtroom during the closing arguments of the [ GPE Deputy ] ORG Attorney and persisted in doing so , after which he was removed from the courtroom by a decision of the trial panel . He was again present in the courtroom when judgment was pronounced on DATE .

Since the trial court complied fully with LAW of the ORG , the accused ’s appeal is unfounded . In the case in issue there has been no violation of the defence rights , and the removal of the accused from the courtroom during the closing arguments of the parties had no effect on the judgment .

The accused PERSON further argues ... that the impugned judgment violated the ne bis in idem principle ... because the proceedings had already been discontinued in respect of some of the charges giving rise to the impugned judgment ...

It is true that criminal proceedings were conducted before ORG under the number K-CARDINAL/CARDINAL against the accused PERSON in respect of , inter alia , CARDINAL criminal offences ... of murder ... committed against GPE , GPE , GPE and GPE . V , as well as the criminal offence ... of creating a risk to life and assets ... These proceedings were terminated by final ruling of ORG no . GPE ( K-CARDINAL/CARDINAL ) of DATE on the basis of ORG ...

Despite the fact that the consequences of the criminal offences which were the subject of the proceedings conducted before ORG under the number K-CARDINAL/CARDINAL , namely the deaths of GPE , GPE , GPE and GPE . ORG and the grievous bodily injury of ORG . PERSON , are also part of the factual background [ to the criminal offences assessed ] in the proceedings in which the impugned judgment has been adopted , the offences [ tried in the CARDINAL sets of criminal proceedings in issue ] are not the same .

Comparison between the factual background [ to the criminal offences assessed ] in both sets of proceedings shows that they are not identical . The factual background [ to the offences referred to ] in the impugned judgment contains a further criminal element , significantly wider in scope than the one forming the basis for the proceedings conducted before ORG under the number K-CARDINAL/CARDINAL . [ In the present case ] the accused PERSON is charged with violation of the rules of LAW relative to ORG in Time of War of CARDINAL DATE and of LAW to LAW of DATE relative to ORG ) of DATE , in that , in the period CARDINAL , while defending that territory from armed attacks by the local rebel NORP population and the so - called ORG in their joint attack on the constitutional legal order and territorial integrity of GPE , and in violation of the rules of international law , he killed and tortured civilians , treated them in an inhuman manner , unlawfully arrested them , ordered the killing of a civilian and robbed the assets of the civilian population . The above acts constitute a criminal offence against the values protected by international law , namely a war crime against the civilian population under LAW .

Since the factual background to the criminal offence in issue , and its legal classification , differ from those which were the subject of the earlier proceedings , such that the scope of the charges against the accused PERSON is significantly wider and different from the previous case ( case - file no . K-CARDINAL/CARDINAL ) , the matter is not res judicata ... ”

A subsequent constitutional complaint by the applicant was dismissed by ORG on DATE . ORG endorsed the views of ORG .


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Italy);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Positive obligations;Article 8-1 - Respect for family life) (Conditional) (Italy)

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

The applicant is a NORP national of NORP origin . He was born in DATE and currently lives in GPE . On an unknown date he entered GPE from GPE , where he had arrived also on an unknown date . On DATE he sought asylum in GPE .

On DATE ORG ( the “ LAW ” ) rejected the applicant ’s asylum request on the basis of the fact that his fingerprints had already been registered in ORG , in GPE , on DATE , and in GPE , on DATE . Furthermore , the NORP authorities had accepted the NORP authorities’ request of DATE to take the applicant back into their territory by virtue of LAW no . MONEY ( the “ FAC ” ) . The ORG further ruled that the applicant ’s CARDINAL sisters , who were living in GPE respectively since DATE and DATE , did not fall under the category of “ family members ” as provided in LAW . Regarding the back problems alleged by the applicant , it considered that GPE was obliged to grant him access to medical treatment and that nothing indicated that those health problems impeded the transfer of the applicant to GPE .

The applicant appealed against the ORG ’s decision to ORG ( the “ FAC ” ) . He maintained that he had fled his home country GPE because he had been persecuted , detained and tortured there . As established by medical certificates , he had been diagnosed with severe post - traumatic stress disorder , for which he was receiving medical treatment . He was also receiving medical treatment for his back problems . He claimed that the ORG ’s decision was in breach of LAW of LAW because GPE was the first member ORG he had entered DATE before . Thus it was the NORP authorities which were theoretically responsible for examining his asylum request . It could not , however , be derived from the fact that he could not be returned to GPE as established in GPE v. GPE and GPE ( [ ORG ] no . CARDINAL , ECHR DATE ) that GPE could return him to GPE . Therefore , the NORP authorities’ request for his return to GPE was in breach of the law because they had known that the NORP authorities were not competent in that matter , and GPE had erroneously accepted the request . According to the applicant , the ORG ’s decision also violated LAW which provided that persons who were dependent on relatives who were residing in a member ORG should be kept together with them . In this regard he established that CARDINAL of his older sisters were legally residing in GPE with their families . He claimed that owing to the presence of his sisters he had regained a certain emotional stability in his life . His expulsion to GPE , where he had no family member to care for him , would therefore aggravate his mental health problems in such a way that he would be at risk of irreparable harm contrary to ORG and CARDINAL of the Convention .

On DATE the ORG dismissed the applicant ’s appeal . It ruled that according to ORG the applicant had to return to GPE , whose authorities had , prior to accepting the NORP request for return , been informed by GPE that the applicant had first entered the “ GPE area ” in GPE . Furthermore , the FAC considered that in view of the dates of arrival in the respective countries it could not be excluded that on leaving GPE the applicant had left the “ GPE area ” before entering GPE . Furthermore , it established that the applicant was not so severely ill that he was dependent on the assistance of his sisters . Therefore , LAW was not applicable in his case and neither was LAW . Moreover , the FAC held that with regard to the asylum procedure and the availability of medical treatment for asylum seekers it had not been established that there were structural deficiencies in the NORP reception system and that GPE failed to respect its international obligations in respect of asylum seekers and refugees . Therefore , nothing indicated that the applicant would suffer treatment contrary to LAW in the event of expulsion to GPE . Finally , the ORG stated that it was up to the NORP authorities to inform their NORP counterparts about the applicant ’s health problems when they were executing the expulsion .

NORP Before this Court the applicant produced in particular a medical report dated DATE establishing that , as a result of trauma allegedly suffered in detention in GPE , he had back problems and showed severe symptoms of post - traumatic stress disorder . As a result , the applicant was put on a course of twice DATE psychotherapy sessions with a general practitioner and was prescribeda DATE dose of ORG , an anti - depressant , as well as sleeping pills ( ORG ) and pain - killers for his back ( Tilur ) .

The report also stated that in the absence of medical treatment the applicant ’s health status would deteriorate quickly and put him at a high risk of alcohol or drug abuse as well as suicide . The risk of suicide would be greater should the applicant be returned to his country of origin .

Moreover , according to the report , the involvment of the applicant ’s sisters was “ an absolute necessity ” ( absolument nécessaire ) for him to gain some emotional stability in order to overcome the multiple traumas suffered .

Upon the recommendation of his doctor , the applicant was allocated an individual apartment unit for asylum seekers . The applicant also submitted his ORG declarations , according to which he was virtually spending the whole time with their families , he was in great emotional need , could not be left alone and spent DATE alone in his apartment . They added that they were willing and able to provide him with emotional support so that he could recover from his trauma .


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant , PERSON , is an NORP national , who was born in DATE and lives in the GPE in GPE . The President granted the applicant ’s request for his identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . He was represented before the ORG by Mr PERSON , a lawyer practising in LOC .

ORG ( “ the Government ” ) were represented by their their Agent , Mr R.A.A. Böcker , and Deputy Agent , PERSON , both of ORG .

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

On DATE , the applicant applied for asylum in the GPE . He stated inter alia that he had been a professional military officer and that he had worked for the ORG / WAD ( ORG Atal - at - e Dowlati / PERSON ) . He further stated that he had been a member of ORG of GPE ; ORG ) . He had fled GPE on DATE as the ORG had been searching for him . He was granted asylum on DATE . On an unspecified date in DATE , his spouse was given permission to join him in the GPE . This permission was equally given to their CARDINAL children who were born in DATE , DATE , DATE and DATE , respectively . His wife and the CARDINAL youngest children have since obtained NORP nationality ; the CARDINAL oldest children hold residence permits for asylum purposes .

On DATE , the Minister for ORG ( Minister PERSON ) decided to withdraw the applicant ’s asylum based residence permit with retroactive effect , Article CARDINAL of the DATE LAW relating to ORG being held against the applicant . The Minister based this decision on the applicant ’s statements about his career from DATE as an officer in the ORG in which he had last held the rank of lieutenant colonel , and on a general official report ( algemeen ambtsbericht ) , drawn up on DATE by ORG ( GPE PERSON ) on “ ORG in NORP GPE ( DATE ) . AGSA , ORG , ORG and ORG ( “ PERSON in communistisch GPE ( DATE ) , AGSA , ORG , ORG en WAD ” ) On the basis of this report , the GPE immigration authorities adopted the position that LAW could be held against virtually every NORP asylum seeker who , holding the rank of third lieutenant or higher , had worked during the communist regime for the ORG .

In a separate decision taken on DATE , the Minister further imposed an exclusion order ( ongewenstverklaring ) on the applicant . The applicant ’s objection ( bezwaar ) against this decision was rejected by the Minister on CARDINAL DATE .

As under NORP law it is not possible to have lawful residence in the GPE as long as an exclusion order is in place , the applicant ’s appeal against the withdrawal of his asylum based residence permit was declared inadmissible on DATE by ORG of The GPE sitting in GPE .

In a separate decision taken on DATE , ORG of The GPE sitting in PERSON rejected the applicant ’s appeal against the decision to impose an exclusion order . On DATE , the applicant filed a further appeal with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) .

On DATE , at the request of the applicant , the President of the ORG decided to indicate to the Government of the GPE that it was desirable in the interests of the parties and the proper conduct of the proceedings before the ORG not to remove the applicant to GPE ( Rule CARDINAL of ORG ) until further notice .

On DATE the ORG prolonged the measure under LAW until further notice .

On DATE , the applicant requested the Deputy Minister of Justice ( Staatssecretaris van Justitie ; “ the Deputy Minister ” ; the successor to the Minister for ORG ) to lift ( temporarily ) the exclusion order imposed on him ( “ verzoek om het ( tijdelijk ) opheffen van de ongewenstverklaring ” ) .

On DATE , ORG rejected the applicant ’s further appeal concerning the decision to impose an exclusion order on him .

On DATE , the Deputy Minister withdrew the decision of CARDINAL DATE , in which the applicant ’s objection to the decision to impose an exclusion order on him had been rejected .

On DATE , the Government informed the ORG that , in the context of the proceedings concerning the applicant ’s exclusion order and his request have this order lifted , the Deputy Minister had concluded on DATE that the applicant would , if returned to GPE in the current circumstances , run a risk of treatment as referred to in LAW . The Government stated that , therefore , the applicant would not be expelled to GPE as long as LAW would constitute grounds for not doing so . The Government requested the ORG to consider striking the application out of the list of pending cases .

On DATE , the applicant informed the ORG that he did not wish to withdraw the application as he had not only alleged a violation of his rights under LAW but also under LAW .

On DATE , the ORG decided against striking the case out . It decided to adjourn its proceedings pending the outcome of the still pending domestic proceedings on the imposition of an exclusion order on the applicant . It further decided to prolong the Rule CARDINAL indication for the duration of the proceedings before the ORG .

On DATE , ORG of The GPE sitting in GPE determined the applicant ’s appeal against the Minister ’s decision of DATE concerning the imposition of the exclusion order . It remitted the case to the Minister . In a separate judgment given on DATE , ORG rejected the applicant ’s appeal against the Minister ’s refusal to lift the exclusion order .

In a fresh decision taken on DATE concerning the imposition of the exclusion order , the Minister for ORG ( Minister PERSON , ORG ; the successor to the Deputy Minister of Justice ) again accepted that the applicant , if returned to GPE , would run a risk of treatment proscribed by LAW but rejected the applicant ’s other arguments based on ORG and CARDINAL of the Convention . The applicant filed an appeal with ORG of The Hague , which is presumably still pending .

On DATE , the applicant informed ORG state of proceedings at the domestic level , namely that the proceedings concerning the imposition of the exclusion order were pending before ORG of The GPE sitting in GPE and that the proceedings on his request to lift the exclusion order were pending before ORG . He further informed ORG consequences of the implementation as from DATE of Directive CARDINAL of DATE ( on common standards and procedures in Member GPE for returning illegally staying third - country nationals ) for persons who – like the applicant – are not a national of CARDINAL of ORG and on whom an exclusion order has been imposed . According the applicant , the Government intended to lift exclusion orders imposed in the past under their simultaneously replacement by an entry ban within the meaning of LAW .

The ORG requested the Government on DATE to comment on the information supplied by the applicant , which they did on DATE . The Government informed the ORG , inter alia , that the Minister was seeing no reason to lift the applicant ’s exclusion order and impose an entry ban on him

NORP The relevant domestic law and practice as regards asylum proceedings , exclusion orders and enforcement of removals are set out in PERSON v. the GPE ( ( dec . ) , no . CARDINAL/CARDINAL , § § DATE , DATE ) .


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 - Degrading treatment;Prohibition of torture)

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

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


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

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicants were born in DATE and DATE respectively and live in Split .

The legislation of the former GPE , in particular LAW of the DATE LAW ( see paragraph CARDINAL below ) , prohibited the acquisition of ownership of socially owned property by adverse possession ( dosjelost ) .

When incorporating the DATE LAW into the NORP legal system on DATE , ORG repealed the above - mentioned provision ( see paragraph CARDINAL below ) .

Subsequently , the new LAW of DATE , which entered into force on DATE , provided that the period prior to CARDINAL DATE was to be included in calculating the period for acquiring ownership by adverse possession of socially owned immovable property ( see paragraph CARDINAL below ) .

Following several petitions for an abstract constitutional review ( prijedlog za ocjenu ustavnosti ) submitted by former owners of properties that had been appropriated under the socialist regime , on DATE ORG ( Ustavni sud PERSON ) accepted the initiative and decided to institute proceedings to review the constitutionality of section CARDINAL ) of the DATE LAW .

By a decision of CARDINAL DATE , ORG invalidated section CARDINAL ) of the DATE LAW . It held that the impugned provision had retroactive effect , resulting in adverse consequences for the rights of third parties ( primarily those who , under the restitution legislation , were entitled to the restitution of property appropriated during the NORP regime ) and was therefore unconstitutional ( for the relevant part of the decision see GPE v. GPE , no . CARDINAL , § CARDINAL , DATE ) . The decision came into effect on DATE when it was published in ORG .

On DATE , CARDINAL DATE and DATE respectively , the applicants bought CARDINAL plots of land from various individuals . However , the plots were recorded in the land register in the name of GPE as the legal predecessor of GPE .

On DATE the applicants brought a civil action in ORG ( PERSON ) against ORG ( Grad Split DATE hereinafter “ the local authorities ” ) , seeking a declaration of their ownership of the CARDINAL plots of land and registration in their names in the land register . They submitted that the property at issue , even though it had been recorded in the land register in the name of GPE as the legal predecessor of GPE , had been in the possession of their legal predecessors for DATE . Given that the statutory period for acquiring ownership by adverse possession had elapsed in respect of their legal predecessors , the applicants claimed that by buying the land from them they had validly acquired ownership .

By a judgment of DATE , ORG ruled in favour of the applicants . It established , firstly , that the land in question had been in social ownership on CARDINAL DATE and that under the relevant legislation it had not been possible to acquire ownership of socially owned property by adverse possession before that date unless the statutory requirements for doing so had been met by DATE ( see paragraphs CARDINAL , DATE and CARDINAL - CARDINAL below ) . It found , however , that the applicants had proved that their predecessors had had continuous possession of the CARDINAL plots of land in good faith for DATE before DATE , and had continued to do so until they had sold them to the applicants ( see paragraph CARDINAL above ) . The applicants’ predecessors had therefore , under LAW ( applicable in GPE from DATE until DATE , see paragraphs CARDINAL and CARDINAL below ) , acquired ownership of the land by adverse possession even before that date .

Following an appeal by the defendant authority , on DATE ORG ( PERSON ) reversed the first - instance judgment and dismissed the applicants’ action . It stated that even though ORG had established the facts correctly , the ORG predecessors had only been in possession of the land in question ( continuously and in good faith ) since DATE . The DATE time - limit for acquiring ownership by adverse possession set forth in LAW had not therefore expired by DATE ( see paragraph CARDINAL below ) . In the subsequent period DATE and DATE the relevant legislation had prohibited the acquisition of ownership of socially owned property by adverse possession ( see paragraph CARDINAL above and CARDINAL below ) . This had interrupted the running of the statutory time - limits elapsed before that period . The time elapsed before DATE had therefore not continued to run after CARDINAL DATE – it had actually started to run again .

The applicants then lodged a constitutional complaint against the second - instance judgment , alleging violations of their constitutional rights to equality before the law , equality before the courts and fair procedure .

By a decision of DATE , ORG dismissed their constitutional complaint and on DATE it served its decision on their representative .


CASE OF CORNEA v. THE REPUBLIC OF MOLDOVA

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

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

The applicant was born in DATE and lives in Curchi .

At the time of the events the applicant was head of female patient services at ORG . In DATE the hospital ’s chief physician was suspended from his position DATE owing to his being the subject of a criminal investigation – and the applicant was appointed to temporarily replace him . Another doctor , GPE , was appointed to temporarily fill the applicant ’s former position .

NORP In DATE the criminal investigation conducted in respect of the hospital ’s chief physician was terminated and , on the basis of a court order , he returned to his position . On DATE the hospital ordered the applicant ’s transfer to the position of head of female patient services and ORG ’s transfer to the position of an ordinary doctor . On the basis of that order , the applicant took up his initial position of head of female patient services and ORG returned to being a simple doctor .

On an unspecified date ORG challenged the order of DATE arguing that he had not consented to being removed from the position of head of female patient services . The proceedings lasted until DATE during which time the applicant worked as head of female patient services . Nobody informed the applicant about the proceedings .

On DATE ORG examined the action brought by ORG without involving the applicant in the proceedings , and upheld it , quashing the hospital ’s order of DATE . ORG was reinstated in the position of head of female patient services . The applicant learned about the trial after its conclusion and appealed against the judgment . He argued , inter alia , that the judgment was unlawful because he had not been involved in proceedings in which his own rights and interests were clearly affected , relying – inter alia – on LAW b ) of LAW ( see paragraph CARDINAL below ) . The hospital did not appeal against the judgment but supported the applicant ’s position during the proceedings before ORG .

On DATE ORG declared the applicant ’s appeal inadmissible on the grounds that he had not been a party to the proceedings and had no right to lodge an appeal against the judgment of DATE . In dismissing his argument quoting LAW ) of LAW , ORG stated : “ [ ... ] the [ applicant ’s ] reference to LAW , which would have entitled him to appeal without having been a party to the proceedings [ ... ] , is based on a wrong interpretation of this procedural rule , which can not be applied in the present case ” .

The applicant lodged an appeal on points of law with ORG , again relying on LAW ( see paragraph CARDINAL below ) .

On DATE ORG dismissed the applicant ’s appeal on points of law after finding that the applicant did not have the right to lodge an appeal against the judgment of DATE because his rights and obligations had not been affected by that judgment .

After the above events , the applicant took up a position as an ordinary doctor at the hospital , receiving a salary which was lower than that of the head of section .


András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

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

The applicant was a high - level civil servant in ORG , who at the time of the events was in charge of the privatisation of numerous ORG - owned strategic companies in the field of energy , oil and natural resources .

On DATE ORG ( ORG - “ the GPE ” ) informed ORG from the prosecutor ’s office attached to ORG and ORG ( “ the High Court ” ) that the applicant was part of an organised criminal group which included senior government officials and foreign citizens . The group ’s purpose was to help foreign companies to illegally acquire ownership of important NORP ORG - owned companies which were in the process of privatisation . These accusations were based on information obtained through intercepting the telephone conversations of the members of the group , including the applicant .

The surveillance activity was carried out under PERSON no . CARDINAL/CARDINAL ( on the national security of GPE ) and started in respect of the applicant on CARDINAL DATE . This activity had been authorised by a judge of ORG .

On DATE the applicant was charged with treason for the disclosure of ORG secrets and with creating an organised criminal group .

The criminal investigation and the surveillance of the applicant continued after the above date and on DATE the applicant was indicted for the crimes charged , together with CARDINAL co - accused .

On DATE the applicant ’s lawyer sent a letter to the president of ORG , where his prosecution file had initially been registered , requesting that the transcripts of the intercepted phone conversations for the period DATE and DATE should not be accepted as evidence against him since they had been obtained unlawfully . He argued that this part of the surveillance had been conducted before he had been charged with a crime and therefore should not have been accepted as evidence in the proceedings .

At a hearing held on DATE before ORG , where the applicant ’s case had been sent for examination , the applicant contested the accuracy of the transcripts of the telephone conversations submitted as evidence in the proceedings . He alleged that there were discrepancies between the originals in LANGUAGE and their translated LANGUAGE versions , discrepancies which implied that he had divulged State secrets when in fact that had not been the case .

On this occasion , the applicant lodged a written request asking the court to order the prosecutor ’s office to submit as evidence the audio tapes of all his phone conversations recorded in the course of the investigation . The applicant explained that only a combined analysis of the entirety of his phone conversations in the period in question would prove his innocence . Relying on the provisions of LAW the domestic court rejected the request considering that the tapes as well as the transcripts of all the phone conversations used as evidence in the case were already in the case file and no additional transcripts were necessary .

At the hearing of CARDINAL DATE ORG also held that the applicant ’s allegations concerning the existence of discrepancies in the translation of the phone conversations had been noted and would be taken into consideration in the deliberations .

On DATE ORG convicted the applicant of treason for disclosure of ORG secrets and of creating an organised criminal group , and sentenced him to CARDINAL years’ imprisonment .

The applicant appealed against the decision claiming in principal that the information he had indeed transmitted to the co - accused could not be considered a ORG secret . Quoting extensively from transcripts of his phone conversations submitted as evidence in his case file , the applicant explained that his actions had been in accordance with the law . As regards the interception of his phone conversations the applicant complained of the transcription and translation errors which had changed the true meaning of the discussions . He mentioned that the content of the intercepted phone conversations had not been sufficient to prove his guilt .

At CARDINAL hearings held before the CARDINAL - judge panel of ORG on DATE and DATE , the applicant ’s representatives argued as regards the interception of the applicant ’s phone conversations that the transcripts submitted to the case file had discrepancies due to translation errors and that the court of first instance had not quoted them accurately in its judgment .

On DATE CARDINAL of the applicant ’s CARDINAL representatives submitted final written pleadings at the registry of ORG . They included no mention of the interception of the applicant ’s phone conversations .

On DATE ORG convicted the applicant of the crimes of disclosing secret information and creating an organised criminal group , and sentenced him to DATE and CARDINAL months’ imprisonment . The judgment became final .

In a letter to the ORG dated DATE the applicant complained of the fact that excerpts from his telephone conversations which had been obtained through telephone tapping during criminal surveillance operations had been disclosed to the media by the prosecutors investigating his case during the criminal proceedings against him .

The applicant enclosed with the above letter several copies of newspaper articles which had been published in the national media in DATE , DATE .

The transcript of a discussion that CARDINAL of the co - defendants in the applicant ’s case had had with journalists during a television news programme on CARDINAL DATE on ORG , a national channel , was also attached . The transcript read as follows :

“ [ S. ] ’s network of economic espionage .

The network of [ S.S. ] severely distorted the NORP market , damaged GPE ’s image abroad and even endangered its accession to ORG ... In the privatisations case , ORG [ ORG ] opened an investigation against CARDINAL people , all accused of blackmail , treason and complicity in these crimes . ... The NORP citizen [ S.S. ] , an international consultant , was considered the key person in the privatisations case . He is accused of espionage and of organising an espionage network . ”

TIME , on the same channel , [ GPE ] [ CARDINAL of the co - suspects in the applicant ’s case at the time ] stated :

“ I have not received anything official ; I have only heard of the accusations from the media and from you . I am ready to come back to GPE and to contribute to the clarification of the situation , even if these privatisations have been , in my opinion , a success .

[ GPE ] ’s agenda included the minister of economy , LOC , [ GPE ] and [ FAC ] , the other accused in the case . ”

On DATE the applicant also sent to the ORG excerpts from a television programme broadcast on DATE on ORG , a national channel . According to the transcript of the discussions as published on the channel ’s internet page , several journalists and political analysts presented their opinions on the case in which the applicant was standing trial at the time . The transcript of the programme reads as follows in its relevant parts :

“ DATE brief [ Sinteza zilei ] : The ‘ ORG and PERSON scandal . Is the DNA [ ORG ] betraying the President ?

The DNA ’s decision not to open an investigation into the “ treason and espionage ” scandal , DATE after making announcements about the fight against corruption , was the main topic of the programme Daily Brief on ORG . In the mentioned investigation , former ministers [ ORG ] and [ ORG ] , former ministry advisers PERSON and [ PERSON ] and the NORP consultant [ FAC ] , had been accused of bribe taking .

The latter was even imprisoned as a result of the mentioned scandal . The political expert PERSON stated that it had been proved one more time that ‘ human rights are carelessly breached in Romania’ . ‘ These people have their lives in pieces . Who will repair it for them ? If the system wants to destroy you it will ... ’ said PERSON .

Military expert PERSON underlined : ‘ DNA prosecutors woke up and understood that they have been used as political lure . There is a report adopted by ORG [ ORG ] which mentions incredible things . It states that the manner in which investigations are carried out by the DNA is dangerous for the NORP justice system . DNA prosecutors have brought in some cases charges which could not be found in the criminal code . So , either you are dumb , or you received a political order.’ explained PERSON . ...

Referring to the ‘ treason and PERSON scandal , PERSON mentioned that it was all a lie , because ‘ one can not commit political treason to the advantage of a consultancy company engaged by ORG , for which [ S ] . also worked.’ The analyst PERSON ... also condemned the approach adopted by the media who ran with these stories without verifying all the ‘ leaks of information’ from the DNA and used them deliberately to mislead the public ... ”

On DATE , together with his observations on the admissibility and merits of his application , the applicant submitted additional copies of newspaper articles published DATE and DATE .

The legislation in force at the relevant time concerning telephone tapping and the changes to the law brought into force on DATE are described in PERSON GPE ( no . CARDINAL ) ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

The applicant is proprietor and editor - in - chief of the local DATE newspaper “ Komu i NORP ” , published in the PERSON and ORG .

NORP In issue no . CARDINAL of DATE the applicant published an article entitled “ Elegantly wrapped dung ” ( “ DATE elegancko opakowane ” ) . It read , in so far as relevant :

“ A poser is someone who does everything to produce external effects by his conduct , speech and , in particular , with the populism he preaches . He is a numbskull posing as the people ’s tribune . The only panacea , or universal cure , for such a person is to recognise his intentions and take up a bloodless fight using arguments . An argument against any kind of tricks by a poser or populist will be always a counterargument based on reality , logic and the opportunity to put one ’s intentions into practice .

I remember when , not so long ago , the author of the proposal to develop a quail farm as a panacea against rural unemployment had a go at me in an accommodating local newspaper , accusing me of malice , a willingness to discredit every good idea , and mindlessness leading to nasty mental disease and many other irreversible disorders of the mind . At the same time he declared that he would continue doing his job , that is , condemning farmers to breeding nice little birds in order to collect their eggs . His boss considered the quail business very important , because it would eliminate the need for viagra . There has not been a sideshow like it in LOC for a long time . So the time is approaching when pilgrimages of men from all over GPE , and maybe even ORG , will come to PERSON to taste quail eggs and later begin procreating .

I wonder who has gone mad in the district , and why mad ideas , supported by even madder arguments , can be accepted by our officials . But no matter . Every dull boss can be convinced by any rubbish . Once more I want to authoritatively and responsibly declare that neither quail breeding , nor mushroom growing , nor PERSON [ a registered trademark for fibre cement ] , which suddenly seems to have dropped out of the picture , will solve the unemployment problem in the villages of our region . And I will continue calling the actions of dim - witted officials and their dull bosses pretentious and populist , and no numbskull will convince me that I am wrong . ... ”

The applicant went on to describe in general terms a local economic development programme , which had been presented to him by a businessman . He finished his article with the following paragraph :

“ This is not a venture of the quail variety by some smart poser or populist who is able to sell his dull bosses dung nicely wrapped in words . And he actually sells it . ”

On DATE M.D. , the mayor of the Radomsko District ( starosta ) , ORG , the head and spokesperson of the district ’s marketing department , and GPE , an employee of that department , lodged a private bill of indictment against the applicant with ORG . In respect of the impugned article , they accused him of defamation committed through the mass media under LAW . In particular , they alleged that the copious use of words such as “ numbskull ” , “ dull boss ” , “ dim - witted official ” , “ poser ” and “ populist ” ( “ palant ” , “ nierozgarnięty szef ” , “ przygłupawy urzędnik ” , “ pozer ” , “ populista ” ) had defamed them as local government officials . The statements had lowered them in public opinion and undermined the public confidence necessary for the discharge of their duties .

The private prosecutors sought an order requiring the applicant to publish an apology in the DATE newspaper . They further sought reimbursement of their legal costs and payment by the applicant of MONEY ( ORG ) to a charity .

The Radomsko District Court ruled that it did not have jurisdiction in the case , and transmitted the private bill of indictment to ORG . The trial court held CARDINAL hearings .

On DATE the Piotrków Trybunalski ORG gave its judgment . It held that the use of the words “ numbskull ” , “ poser ” and “ dimwitted official ” in respect of GPE , and the use of the words “ dull bosses ” in respect of PERSON and PERSON , had amounted to insult ( zniewaga ) committed through the mass media , within the meaning of LAW . The court convicted the applicant under that provision and ordered him to pay a fine of LAW ( MONEY ( ORG ) ) . It also ordered him to reimburse the private ORG costs ( ORG , approximately LAW ) and the costs of ORG ( ORG CARDINAL , approximately EUR CARDINAL ) .

As to the facts , the court observed that , since DATE , the applicant ’s newspaper had been publishing articles which were critical of GPE , the mayor of GPE , and his officials . The newspaper was particularly critical of GPE ’s initiative to develop quail farming in order to tackle the impoverishment of the local population . GPE was an official in the district ’s marketing department . PERSON , the head of the marketing department , was also involved in the implementation of this project . In DATE the applicant had published an article in which he had made ironic remarks about GPE ’s initiative . In DATE a journalist at the same newspaper had published a detailed article on the same subject . The conflict between the applicant and the private prosecutors had intensified with each successively published article .

The court further noted that , in his article entitled “ Elegantly wrapped dung ” , the applicant had again written about the quail farming . Being aware of the publicity which the initiative promoted by GPE and ORG had received , the applicant had decided once again to mock the CARDINAL officials , as well as their superior , PERSON had referred to GPE , the author of the initiative , as a “ poser ” , “ numbskull ” and “ dim - witted official ” , while the idea of quail farming had been referred to as “ nicely wrapped dung ” . According to the applicant , this kind of “ product ” had been sold to “ dull bosses ” , that is , first G.D. and then PERSON , the mayor of the district .

The trial court rejected the applicant ’s argument that the impugned article had been a simple DATE column in which any similarity to actual persons had been purely coincidental . It found that the article in issue had been part of a campaign carried out by the newspaper against the private prosecutors . They had not been mentioned by name , but they had been easily identifiable on account of the publicity generated by the quail farming project and the earlier articles published by the applicant ’s newspaper . The court established that there was no doubt that the words “ numbskull ” , “ dimwitted official ” and “ poser ” had referred to GPE , and the term “ dull bosses ” to PERSON and G.D.

With regard to the applicant ’s criminal responsibility , the trial court noted that a journalist had the right to criticise the actions of public officials , but was not entitled to use media in a manipulative way to wage private wars . The latter behaviour was not only unethical and unprofessional , but also incompatible with the role of the media , which was to serve the ORG and society . The trial court further held :

“ The fair criticism and objective coverage , free from personal emotions , which is desired in journalism , gave way to the private interest of the defendant , pursued through expressions which , in common understanding , remain offensive and disrespectful . It is difficult not to agree with the position that the word “ numbskull ” ( “ palant ” ) in the analysed context , although its literal meaning is legally irrelevant , fulfils all the criteria of insult within the meaning of LAW . Of an equally offensive character are the terms “ poser ” , “ dim - witted official ” and “ dull boss ” . It would be hard to find a person who would not feel offended by similar epithets , especially if formulated in the press .

Incidentally , it should also be noted that the word “ dung ” used in the title of the article has a cruder equivalent , and undoubtedly that equivalent was meant to describe GPE ’s contribution to the development of local entrepreneurship , which was accepted without reservation by his “ dull bosses ” . “ Dull ” meaning not sharp , unintelligent , intellectually retarded .

However , the court found no grounds to hold that the impugned words had the effect of lowering the private prosecutors in public esteem , or undermining the public confidence necessary for the discharge of their duties as local government officials . Accordingly , it would not be justified to classify the applicant ’s acts as coming under LAW . The quoted statements were rather harmful to the private prosecutors’ perception of their dignity , and such , in the court ’s view , was the defendant ’s intention . By using insulting words in respect of the district officials , PERSON intended to derive satisfaction from doing them moral harm . By doing so in a newspaper , he fell within the scope of LAW , acting unlawfully , reprehensibly , and , in the absence of circumstances capable of precluding or mitigating his guilt , also culpably . ”

The trial court noted that the present case involved a conflict between constitutionally guaranteed freedom of speech and the right of each citizen to have his reputation protected . However , it found that the applicant ’s acts had constituted a blatant abuse of freedom of speech and professional ethics . The court observed that his acts and motivation had been reprehensible , since he had been settling a private conflict with the officials and transgressing basic professional standards .

As regards sentence , the court found that , , it would be disproportionate to impose a prison sentence , and that a fine would be the most appropriate penalty . It imposed a fine of PLN MONEY , which it considered proportionate to the gravity of the offence and the degree of the applicant ’s guilt .

The applicant appealed . He contested the factual findings of the firstinstance court , in particular that his article had concerned the private prosecutors personally . He argued that the impugned article had presented in a sarcastic light people who achieved personal gain by pretending to work , and their dull bosses who accepted such practices . The applicant emphasised that criticism of the quail farm project as a solution to a decline in agriculture in the region had been entirely legitimate . Lastly , he submitted that public figures such as GPE , the district mayor , and other officials had to accept harsh criticism of their activities .

On DATE the Piotrków Trybunalski Regional Court ( “ the ORG ” ) upheld the first - instance judgment . It ordered the applicant to pay ORG MONEY ( approx . ORG ) in respect of the costs of the appeal proceedings .

ORG held that the lower court had correctly established the facts of the case . It endorsed the trial court ’s findings that the words used in the article had been insulting and harmful to the private ORG dignity . It further held that , although fair criticism of public authorities and officials was socially desirable and legally accepted , the protection afforded by law did not extend to the use of insulting words which offended human dignity .

The judgment was served on the applicant on CARDINAL DATE .