CASE OF BRITISH GURKHA WELFARE SOCIETY AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano;Simon Brown

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

Nepalese Gurkha soldiers have served the ORG since DATE , initially as soldiers in the ( NORP ) ORG . Following NORP independence in DATE , CARDINAL ORG regiments were transferred to ORG , while CARDINAL regiments became an integral part of ORG . CARDINAL ORG soldiers fought in the CARDINAL world wars , and in DATE they have served in GPE , GPE , GPE , GPE , the LOC , GPE , GPE and GPE . They have served in a variety of roles , mainly in the infantry but also as engineers and in signals and logistics units .

DATE , they form ORG ( “ the Brigade ” ) , in which only NORP nationals are eligible for service . The Brigade is not an operational brigade in the conventional sense ; rather , it is an administrative entity which ensures that ORG units , into which all ORG soldiers are recruited and serve , are able to be integrated into – and form part of – other operational brigades in ORG .

The Brigade was originally based in LOC , in the region formerly known as GPE . In DATE the ORG ’s base moved to GPE . On completion of the handover of GPE to GPE in DATE , the home base moved to GPE . Consequently , the majority of NORP are currently stationed in GPE , although since DATE a section of the Brigade has been stationed in GPE .

Pursuant to a memorandum of understanding of CARDINAL DATE ( “ the Tripartite Agreement ” ) , ORG , GPE and GPE agreed that the salary of NORP serving in ORG would be set by reference to rates applied by GPE in respect of NORP soldiers so as to avoid competition between the NORP and NORP armies for ORG recruits . ORG basic pay was therefore set in accordance with the NORP LAW , although cost - of - living allowances were paid for service outside GPE . These allowances used to be calculated by reference to local living expenses ( for example , in GPE or GPE ) , but in DATE , when the Brigade ’s home base moved to GPE , a “ universal addition ” was introduced to ensure that , whenever a ORG soldier was serving outside GPE , his take - home pay would be similar to that of a non - NORP soldier in ORG of comparable rank and experience . However , the “ universal addition ” was not treated as pensionable pay .

Prior to DATE , ORG entitlement ( that is , an entitlement for the soldier to be accompanied by wife and children ) was for one married accompanied tour of DATE in DATE of service and for permanent accompanied service for NORP ranked ORG and above . However , with effect from DATE , those who had served for DATE or more in the Brigade were entitled to ORG ( in other words , they were entitled to be joined in GPE by their wives and children ) .

Gurkha soldiers are required to retire after DATE service , subject to the possibility , dependent on rank , of CARDINAL or more yearly extensions .

In comparison , other soldiers in ORG are entitled to serve for DATE .

Historically , ORG soldiers were discharged to GPE and it was presumed that they would remain there during retirement .

On DATE ORG ( ORG CARDINAL ) were changed to permit NORP soldiers with CARDINAL years’ service who retired on or after DATE ( the date that the ORG ’s home base relocated to GPE ) to apply for settlement in GPE . MONEY of the CARDINAL eligible ORG soldiers have since applied successfully to settle in GPE with their qualifying dependants .

On DATE the Secretary of ORG for ORG announced a new policy under which all former NORP who had served in ORG for DATE would be eligible for settlement in GPE . CARDINAL per cent of those eligible have since applied for resettlement in GPE .

The Tripartite Agreement provided that the pensions of NORP serving in ORG would also be set by reference to the rates applied by GPE to NORP soldiers .

In DATE the Gurkha Pension Scheme ( “ GPS ” ) was established by ORG and applied the former ORG to NORP serving in ORG Pension entitlements under the GPS were index - linked to the cost of living in GPE as it was presumed that the NORP would retire there . Pensions were immediately payable upon retirement and could not be deferred . A ORG who retired without having served DATE would be entitled to no pension whatsoever .

In DATE ORG pensions were reviewed and the rate payable was set at the highest rate applicable under the ORG pension arrangements .

In DATE , following a ministerial review , the rates applicable to the pensions of NORP in the Brigade were increased by MONEY , taking them over the scales set by ORG . The rationale for the increase was that a ORG who retired from the Brigade to GPE would not receive the benefit of various schemes which soldiers retiring from ORG could access , such as the provision of certain medical facilities . The increase applied to all NORP regardless of the date of discharge .

ORG soldiers retiring from ORG are entitled to pensions under either ORG DATE ( “ AFPS CARDINAL ” ) or ORG ( “ AFPS CARDINAL ” ) depending on when they commenced service . Neither scheme is indexlinked with the cost of living in the soldier ’s country of origin .

Under the AFPS , soldiers are eligible for deferred pensions , payable at DATE , provided that they have rendered CARDINAL years’ service before leaving ORG . In order to receive an immediate pension officers are required to serve for DATE and all other ranks are required to serve for DATE ; however , in practice CARDINAL of non - Gurkha soldiers in ORG serve for sufficiently long periods to be eligible for an immediate pension .

NORP The annual pension entitlement under the GPS is broadly equivalent – taking into account the adjustments made in DATE and DATE – to CARDINAL of that under the AFPS .

Following the DATE amendment to ORG ( see paragraph CARDINAL above ) , the Secretary of ORG announced a review of the Gurkhas’ Terms and ORG . The review noted that the DATE amendment to ORG and the changes to ORG ( see paragraph CARDINAL above ) had changed the traditional assumption that NORP Gurkhas would retire in GPE , and pointed to a future in which they could be expected increasingly to regard GPE , rather than GPE , as their family base . ORG therefore concluded that , the affordability issues notwithstanding , the major differences in NORP terms and conditions of service could no longer be justified on legal or moral grounds and recommended that they be modernised by bringing them largely into line with those available to the wider ORG .

With regard to pensions , the review concluded that on balance the GPS was more suitable than the AFPS to support the life - cycle of the great majority of NORP up until DATE . However , moving the ORG ’s base to GPE and the subsequent change to ORG had altered the previously valid assumption that NORP would retire in GPE . For a ORG retiring to a second career in GPE , the GPS profile was

“ clearly wrong , paying sums too small to be useful at a time when he does not need them and an inadequate pension at retirement age . As the life profile of the typical ORG approaches that of his GPE / Commonwealth counterpart , there can be little to be said in favour of providing them with such different pension benefit profiles . ”

NORP The report recommended that serving and retired members of the Brigade should be allowed to transfer from the GPS to either AFPS CARDINAL or DATE , depending on when they enlisted . Those who were already in the GPS and wished to remain in it could do so , but it would be closed with effect from DATE .

In DATE GPE formulated the ORG to ORG ( “ GOTT ” ) and this was given effect in ORG Order DATE ( “ the DATE Order ” ) . NORP who retired DATE did not qualify for the GOTT . However , the ORG enabled ORG soldiers who retired on or after DATE to transfer from the GPS to either AFPS CARDINAL or AFPS CARDINAL depending on when they first enlisted in ORG . The terms of any transfer were such that the accrued rights to a pension for service after DATE would transfer into the AFPS scheme on a year - for - DATE basis .

In respect of service rendered DATE the Explanatory Memorandum to the DATE Order explained that

“ although ORG service from DATE is transferable on a CARDINAL - for - CARDINAL basis , LAW provides that ORG service counts proportionately depending upon the rank of the transferee . This proportion is not arbitrary : it has been arrived at after careful calculation by ORG . It represents broadly the value of the DATE benefits accrued in the GPS . A ORG transferring to either AFPS will be given fair pension value for his GPS service . ”

Under the actuarial calculation adopted by the ORG , a DATE ’s service before DATE translated – in terms of pension entitlement – to the equivalent of CARDINAL and MONEY of the value of a DATE ’s service of a non - Gurkha soldier of equivalent rank .

The transition from the GPS to the AFPS for those opting to transfer who were already in receipt of a pension under the GPS did not deprive them of their existing GPS pension , which would continue to be paid . Transfer to the relevant AFPS occurred at DATE , when they received the preserved pension . However , as they had been in receipt of the GPS pension from around the age of CARDINAL , the capital value of the pension pot at retirement age would be reduced by the payments received under the GPS up to that date .

Nearly all serving NORP elected to transfer to the PERSON ( only CARDINAL.CARDINAL per cent elected to remain in the GPS ) . Of those who had retired , but remained eligible for transfer , MONEY elected to remain in the GPS .

The first applicant is a non - governmental unincorporated association that acts on behalf of CARDINAL former members of the Brigade .

The second applicant is a former ORG soldier who retired from ORG on DATE after having accumulated CARDINAL years’ service . As he completed his service prior to DATE , he is ineligible to transfer any of his pensionable years to CARDINAL of the AFPSs . His pension continues to be governed by the ORG and , as such , is valued at MONEY of that which a NORP soldier of equivalent rank would receive for the same period and type of service .

The third applicant is a former ORG soldier who retired from the Brigade on DATE after having accumulated CARDINAL years’ service . DATE of service were transferred into the PERSON on a year - for - year basis . The preceding DATE of service were transferred under an actuarial calculation pursuant to the DATE Order . Under that calculation the pensionable value of DATE of service was regarded as equivalent to CARDINAL per cent of DATE served by a NORP soldier of equivalent rank engaged in the same type of service .

On DATE the applicants issued an application for judicial review in the High Court challenging the legality of both ( a ) the decision that NORP who retired prior to DATE were not entitled to transfer their pension rights under the GPS into the AFPS and ( b ) the decision that , for those NORP who retired after DATE , service before that date did not rank on a year - for - DATE basis . The challenge was advanced on CARDINAL grounds : under LAW DATE ( namely , that there had been a breach of a procedural duty to promote equality of opportunity ) ; on grounds of irrationality ; and under LAW No . CARDINAL read together with LAW . In relation to the third ground , the applicants alleged that they were discriminated against in their entitlement to an army pension on the basis of their age and/or nationality . In particular , they argued that they were treated differently both from younger ORG soldiers who had ( more ) years of service after DATE and from regular ORG soldiers .

The applicants were granted permission to pursue their judicial review application . A hearing took place in DATE . At the hearing the parties agreed that the DATE change to ORG ( see paragraph CARDINAL above ) was irrelevant for the purpose of the proceedings .

On DATE ORG dismissed the application on all CARDINAL grounds . In respect of the age discrimination challenge ORG relied on its earlier decision in R ( PERSON ) v. ORG [ DATE ] EWHC CARDINAL ( Admin ) ( summarised at paragraphs DATE below ) , in which it held that the difference in treatment did not occur due to the difference in age but due to the dates at which service had been rendered . The judge in the present applicants’ case noted that

“ when lines are drawn for any purpose by reference to dates the result may well include some indirect age discrimination . ”

In reaching this conclusion , the court rejected the argument DATE advanced by the applicants – that age discrimination should be treated as a “ suspect ” ground .

In respect of the discrimination - on - grounds - of - nationality challenge ORG considered that it was bound by R ( GPE and Others ) v. ORG [ DATE ] EWCA Civ CARDINAL ( summarised at paragraphs DATE below ) , in which ORG had ruled that NORP with service before DATE were in a markedly different position from other soldiers serving in ORG before that date . The difference in pension arrangements reflected the different historical position of the NORP . Although ORG accepted that the DATE change in ORG ( see paragraph CARDINAL above ) undermined some of the assumptions supporting the decision in GPE , it held that the changes did not affect the reasoning of ORG as that reasoning applied to the calculation of pension entitlements which accrued DATE . For all the reasons advanced by the ORG Judge in GPE , ORG considered that the choice of DATE to mark the boundary for different treatment of accrued pension was a rational and reasonable CARDINAL .

The applicants were granted permission to appeal to ORG . On appeal , their case was put exclusively by reference to LAW No . CARDINAL .

On DATE ORG dismissed the applicants’ appeal . In respect of the discrimination - on - grounds - of - nationality claim ORG , like ORG , considered itself bound by the decision in GPE ( cited above ) . In respect of the age - discrimination claim the court , relying on ORG judgment in PERSON v. the GPE , no . CARDINAL , DATE , held that even if a relevant comparison could be drawn between older and younger NORP , ORG could easily justify the difference in treatment .

On DATE ORG refused to grant the applicants permission to appeal .


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

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in PERSON .

In DATE the applicant was sentenced to DATE imprisonment for homicide . Between DATE and DATE he was serving his sentence in FAC .

The applicant alleged that , DATE and DATE , while he had been under a closed prison regime in FAC , he had been taking his DATE TIME of exercise in outside yards which lacked access to toilets or running water . At certain times there were CARDINAL prisoners in CARDINAL recreation yard . Especially during DATE the situation could have been described as inhuman and humiliating , because he had been forced to satisfy his physiological needs together with other prisoners along the fences of the yard , in the same place where they were supposed to walk and breathe fresh air .

The applicant alleged that he had on numerous occasions asked the ORG administration to provide sanitary facilities and running water in the recreation yards . His requests had been consistently ignored or had received the reply that renovation works were planned for the future .

On DATE , the applicant lodged a new complaint asking the prison authorities to equip the recreation yards with running water and toilets . The prison authorities noted on the applicant ’s request that in fact he had been allowed to take water with him during his DATE exercise and he had also been able to go to his cell in order to satisfy his physiological needs during this time . They further noted “ At the moment renovation works are under way in the yards . ”

On DATE the post - sentencing judge in FAC rejected a complaint on the same matter lodged by the applicant . The judge held that Law no . CARDINAL on the execution of sentences did not provide for the right to have access to sanitary facilities and water during the ORG DATE outside exercise .

Relying on the provisions concerning the ORG right to daily exercise set forth by PERSON no . CARDINAL as well as the provisions of LAW , the applicant made a complaint against the above - mentioned decision before ORG . He also sought compensation for non - pecuniary damage in respect of the inhuman treatment he had been suffering during his DATE exercise since DATE in FAC . The FAC administration maintained before the court that the law did not provide for an obligation to equip the recreation yards with sanitary facilities .

NORP In a final judgment of DATE the NORP ORG found that the applicant had indeed been deprived of access to a toilet and drinking water during DATE exercise , and that this was in breach of LAW , which regulates ORG right to DATE exercise . The court based its decision on witness statements as well as on information submitted by the prison authorities . In view of the evidence before it , the court allowed the applicant ’s complaint and ordered FAC authorities to ensure the applicant ’s right to daily exercise in a yard provided with sanitary facilities and drinking water . The applicant ’s request for damages was rejected as out of time , since it had not first been raised before the post - sentencing judge .

In the meantime , on DATE the post - sentencing judge in FAC had studied another complaint lodged by the applicant in respect of another alleged breach of his rights . In this context the post - sentencing judge held that he was not competent in law to deal with the applicant ’s request for compensation for non - pecuniary damage .

On DATE the applicant was placed under a semi - open detention regime , because his prison term was approaching its end . He was moved to a different prison wing , where the recreation yard was provided with both toilets and drinking water .

On DATE the applicant was conditionally released from prison .

In a letter dated DATE , submitted by the ORG , ORG mentioned that the recreation yards of FAC could not technically be equipped with sanitary facilities because the prison lacked a sewage collection and disposal system . At the time the letter was sent , running water had been made available in all yards .


CASE OF MOREIRA FERREIRA v. PORTUGAL (No. 2)

Preliminary objection dismissed (Article 35-3-a - Ratione materiae);Remainder inadmissible (Article 35-3-a - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Criminal charge;Fair hearing)

András Sajó;Angelika Nußberger;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Marko Bošnjak;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Paul Mahoney;Paulo Pinto De Albuquerque;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in DATE and lives in LOC .

Following an altercation with other persons , the applicant was prosecuted by the public prosecutor at ORG for threatening conduct . An expert report was produced during the investigation , stating that the applicant had limited intellectual and cognitive capacities but that she should be held criminally responsible for her acts .

NORP In a judgment of CARDINAL DATE ORG dismissed the applicant ’s defence of diminished criminal responsibility and sentenced her to CARDINAL DATE - fines , amounting to a total of MONEY ( ORG ) , for threatening and insulting conduct , as well as ordering her to pay damages to the victims .

On DATE the applicant appealed to ORG ( “ the Court of Appeal ” ) against the judgment . She repeated that she had been unaware of the unlawfulness of her acts and sought an acknowledgment of her lack of criminal responsibility owing to the psychiatric disorders from which she claimed to suffer . Consequently , she asked for a fresh assessment of the facts and the opportunity to state her case at a hearing .

On DATE ORG held a hearing attended by the public prosecutor and counsel for the applicant . However , no examination of the applicant herself took place .

In a final judgment of DATE ORG upheld the applicant ’s conviction for threatening and insulting conduct , but reduced the sentence to CARDINAL day - fines , amounting to a total of ORG CARDINAL . It held that there was no need for a fresh assessment of the facts because the applicant had not succeeded in challenging the validity of the assessment conducted by the court of first instance .

The applicant paid the fine in several instalments .

During the hearing before the ORG it was pointed out that in DATE , DATE after the fine had been paid in full , the entry concerning the applicant ’s conviction had been deleted from her criminal record .

On DATE the applicant lodged an application with the ORG complaining that she had not been heard in person by ORG , and that this violated LAW .

In a judgment of CARDINAL DATE the ORG declared admissible the complaint under LAW and found a violation of that provision , holding as follows :

The ORG notes that in the present case ORG was invited to determine several questions relating to the facts of the case and to the person of the applicant . As before the court of first instance , the applicant raised , in particular , the question whether her criminal responsibility should have been deemed diminished , which might have had a major impact on the determination of the sentence .

The ORG takes the view that that question could not have been settled by ORG without a direct assessment of the applicant ’s personal testimony , particularly since the judgment of ORG had departed slightly from the conclusions of the psychiatric report without setting out the reasons for such a departure , as required under domestic law ... ORG re - examination of that question should therefore have comprised a full rehearing of the applicant ...

Those factors are sufficient for the ORG to conclude that in the instant case a public hearing should have been held before the appellate court . There has therefore been a violation of LAW . ”

As regards the claims in respect of pecuniary and non - pecuniary damage under LAW , the ORG stated the following :

“ CARDINAL . The ORG firstly considers that when , as in the instant case , an individual has been convicted after proceedings that have entailed breaches of the requirements of LAW , a retrial or the reopening of the case , if requested , represents in principle an appropriate way of redressing the violation . In that regard , it notes that LAW permits the reopening of proceedings at domestic level where the ORG has found a violation of a person ’s fundamental rights and freedoms . However , the specific remedial measures , if any , required of a respondent ORG in order to discharge its obligations under the LAW must depend on the particular circumstances of the individual case and be determined in the light of the terms of the ORG ’s judgment in that case ( see PERSON GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINAL-IV , and PERSON v. GPE , no . GPE , § DATE , DATE ) . In the present case , the only point at issue is the fact that the applicant was not given a hearing by ORG .

Secondly , the ORG notes that in the present case the only applicable basis for an award of just satisfaction lies in the fact that the applicant was not afforded the safeguards of LAW . In that regard , it does not discern any causal link between the violation found and the pecuniary damage alleged , and rejects this claim . The ORG can not speculate as to what the outcome of the proceedings before ORG would have been if it had examined the applicant at a public hearing ( see PERSON v. GPE , no . CARDINAL , § DATE , DATE ) . On the other hand , it considers it appropriate to award the applicant LAW in respect of non - pecuniary damage . ”

On DATE ORG submitted an action plan to ORG concerning the execution of the ORG ’s judgment of CARDINAL DATE . They confirmed that the amount awarded to the applicant had been paid to her on DATE . As regards the general measures , the Government pointed out that ORG had proposed amending LAW to allow hearings to be held in any court of appeal determining the issue of guilt or the sentence in respect of an accused person .

At the hearing before the ORG it was pointed out that the aforementioned proposal had not been approved and had therefore not in fact been included in the final version of the revised Code of Criminal Procedure .

At the time of adoption of the present judgment no plans to reform the Code of Criminal Procedure were on the domestic authorities’ agenda . The procedure for supervising the execution of the judgment of CARDINAL DATE was still pending before ORG .

Concurrently , on DATE , relying on LAW , the applicant lodged an application for review with ORG . She submitted that ORG judgment of DATE was incompatible with the ORG ’s judgment of CARDINAL DATE .

NORP The prosecution submitted that the application should be allowed on the grounds that serious doubts could legitimately be raised about the conviction , particularly as regards the sentencing .

In a judgment of CARDINAL DATE ORG refused to grant a review . It held that there was no cause for a review because the judgment delivered by ORG was not incompatible with the ORG ’s judgment . It considered that the lack of a hearing for the applicant in ORG had constituted a procedural irregularity that was not amenable to review , and held as follows :

“ ... under domestic law , an application for review can be submitted solely in respect of judgments ( in particular , convictions ) , and not in respect of orders concerning the conduct of proceedings , it being understood that ... ‘ judgment’ denotes any judicial decision on a case or on a procedural application ( see LAW ) .

In the light of domestic law , however , a review of the judgment in the present case can not be allowed on the basis invoked by the applicant , because the conviction is not incompatible with ORG judgment ( LAW ) . On the other hand , the procedure followed by ORG in holding the hearing at the close of which the appeal was determined was incompatible with what ORG has deemed vital in order to guarantee the rights of the defence .

Under domestic law , where the accused is legally required to appear in court , his or her absence entails an irremediable nullity ( LAW ) .

However , even where a nullity is irremediable , it can not give rise to an extraordinary application for review of the judgment ...

Furthermore , as noted by ORG , it is impossible to speculate about the decision which ORG might have taken if the convicted person had been examined at the hearing which led to the decision on her appeal , and , in particular , about whether or not the sentence would have been the same .

ORG thus precluded from the outset any possibility that its decision might raise serious doubts about the conviction , regardless of the sentence actually imposed .

In short , the conviction is not incompatible with ORG binding decision , and no serious doubts arise as to its validity .

For that reason , being aware that it is not always possible to secure a retrial or the reopening of proceedings under the applicable domestic law , as in the present case , ORG decided to require ORG to compensate the applicant in respect of non - pecuniary damage , and thus to afford redress not for the unfairness of the conviction , which has not been established , but for a serious defect in the conduct of the proceedings which infringed the applicant ’s defence rights ...

For the above reasons , the applicant ’s argument in support of her application to be granted a review is not substantiated .

Consequently , the judges of ORG decide not to grant a review . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant was born in DATE and lives in GPE .

On DATE the NORP Prime Minister , Mr PERSON , was assassinated by members of a criminal group known as LOC ( PERSON ) .

The Prime Minister ’s assassination prompted ORG to declare a state of emergency and introduce measures in accordance with ORG DATE ( Zakon o merama za slučaj vanrednog stanja , ORG , no . CARDINAL/CARDINAL ) .

During that time a large - scale police operation known as ORG ( ORG ) took place . CARDINAL people were arrested during the operation and placed in pre - trial detention .

The state of emergency lasted until DATE .

The applicant was a member of a criminal group linked to LOC . During ORG all members of the Zemun Clan and groups linked to it were arrested and questioned about the Prime Minister ’s assassination . Those arrested were also questioned about other crimes such as murders , abductions and drug trafficking .

The applicant ’s arrest took place at TIME on DATE , when CARDINAL members of the Special Anti - Terrorist Unit broke into the apartment in which he was hiding with CARDINAL friends .

NORP The applicant claims that on the arrival of the Special Anti - Terrorist Unit he was subjected to physical and verbal abuse . Its members immediately started to kick and beat him indiscriminately all over his body and face . They put a pillowcase over his head , verbally abused him and made threats aimed at his family . The maltreatment continued for TIME . On the recording of his arrest , which was broadcast on national television at DATE , he was shown with visible bruises on his face .

At TIME the applicant and his friends were taken to the police station and left in the corridor . According to the applicant , police officers passing by sporadically hit and kicked him and his friends . He could not identify them as his face was still covered with a pillowcase .

At some point QUANTITY police officers came and took the applicant for questioning . He was taken to an office in which CARDINAL people were present . CARDINAL of them were women .

According to the applicant , the maltreatment continued there . He was beaten with baseball bats and police truncheons . He was beaten on the soles of his feet and the palms of his hands . A truncheon was inserted several times into his anus . At CARDINAL point , a nylon bag was put over the pillowcase which made him lose consciousness . During all that time the applicant remembered hearing his friends screaming .

At QUANTITY DATE CARDINAL police officers took him to a solitary confinement cell . He was unable to walk so the officers carried him . In the cell his handcuffs were taken off and a detention order was put before him for signature .

As alleged by the applicant , TIME QUANTITY police officers entered the cell . They handcuffed him , put a bag over his head and took him for questioning . During that time he was again beaten , kicked and maltreated . Throughout this time , he was not allowed to drink any water .

In the applicant ’s version of events , after TIME of maltreatment he was returned to the solitary confinement cell . He was kept there for DATE . During DATE no food was given to him . Afterwards , he was given CARDINAL sandwich per day . Throughout that period police officers routinely questioned and ill - treated him in the same way as before .

At QUANTITY on DATE the applicant was transferred to GPE FAC ( GPE zatvor ) , where he remained for DATE and DATE pending the outcome of the criminal proceedings instituted against him .

On DATE a prison doctor examined him and issued a medical certificate , which contained an extensive list of his injuries . These included large haematomas on the soles of his feet , palms of his hands , face , shoulders and buttocks , as well as conjunctival hyperaemia ( redness ) on the external parts of his eyes . The certificate also contained a statement that the applicant had been “ beaten in the police station ” .

During DATE of his detention in FAC he was placed in a solitary confinement cell and only had contact with the doctors who examined him . After DATE he had fully recovered from the ill - treatment he had suffered .

On DATE the applicant was charged with illegal production and trafficking of drugs ( neovlašćena proizvodnja i stavljanje u promet opojnih droga ) , abduction ( otmica ) and unlawful deprivation of liberty ( protivpravno lišenje slobode ) . On DATE he was sentenced to DATE and CARDINAL months’ imprisonment . He was released from pre - trial detention on DATE pending the outcome of appeal proceedings .

On DATE the applicant ’s mother lodged a complaint with ORG of ORG ( ORG inspektorat GPE unutrašnjih poslova ) , alleging that her son had been tortured by members of the Special Anti - Terrorist Unit and police officers working for ORG of ORG ( GPE za suzbijanje narkomanije NORP policije , also known as ORG ) in GPE .

On DATE , CARDINAL DATE , DATE and DATE the applicant ’s mother submitted additional information complaining that her son had been ill - treated , and that moveable property had been confiscated from his home .

On DATE the applicant was invited to ORG to give a statement about his mother ’s allegations . He confirmed that he had been ill - treated .

On DATE the Inspector ORG interviewed ORG , the Deputy ORG ( zamenik PERSON javnog tužioca ) in GPE , who stated that in DATE he had been at the police station during the applicant ’s questioning . PERSON gave the names of several of the police officers involved and stated that he had not seen any injuries on the applicant . On the contrary , the applicant had seemed pleased because he had been informed that he would be charged with lesser offences than expected . PERSON also claimed that the applicant had had no complaints about his treatment .

On DATE statements were taken from QUANTITY police officers , GPE and PERSON Both claimed that they had not participated in the immediate arrest , but had entered the apartment after the members of the ORG had already arrested the applicant and his friends . In the apartment they had seen several people dressed in only their underwear , being handcuffed and lying face down . They denied having seen any bruises or injuries on those arrested .

On DATE the Inspector ORG interviewed the applicant ’s wife , who made no complaints about the applicant ’s treatment during his arrest or while in detention . She only complained about the confiscation of certain movables from their home .

On DATE the chief of ORG in GPE ( GPE četvrtog odeljenja UKP SUP ) , PERSON , gave a statement to ORG . He said that he had had no knowledge of the applicant or his friends having been subjected to any ill - treatment .

On DATE the applicant ’s mother ’s complaint of ill - treatment of her son was rejected by ORG for lack of evidence of a crime .

On DATE the applicant lodged a criminal complaint with ORG ( ORG opštinsko javno tužilaštvo – “ the prosecutor ’s office ” ) against a number of the unknown perpetrators as well as against CARDINAL police officers identified only by surname .

On DATE the prosecutor ’s office opened an official inquiry with requests for the police to provide evidence and the names of those involved in the applicant ’s arrest and questioning , and an investigative judge to question the applicant . He was interviewed on DATE .

On DATE the Sector for ORG identified QUANTITY police officers , PERSON , ORG , in connection with the applicant ’s arrest and questioning . The officers stated that no violence had ever been used against the applicant . On DATE the prosecutor ’s office dropped the charges against them for lack of evidence .

At the same time the case against the unidentified police officers remained open because , according to the prosecutor ’s office , “ it transpired from the evidence gathered that PERSON had sustained injuries while in detention ” ( iz prikupljenih dokaza utvrđeno je da je Krsmanović PERSON zadobio povrede u periodu dok mu je bio određen pritvor ) . It would appear that the case is still open .

After learning of that decision , on DATE the applicant took over the criminal proceedings as a subsidiary prosecutor ( oštećeni kao tužilac ) by requesting to have an investigation opened against V.M. , DATE , and GPE

On DATE and DATE the investigating judge to whom the case was assigned interviewed CARDINAL doctors who worked at the prison hospital . On DATE he also interviewed the police officers accused of ill - treatment . On DATE he refused to open an investigation because there was not enough evidence to prove that the accused had committed the crime they were suspected of . On DATE the pre - trial chamber of ORG upheld the decision of the investigating judge . The applicant appealed . On DATE ORG upheld that decision .

On DATE the applicant lodged an appeal on points of law with the prosecutor ’s office , which was rejected on CARDINAL DATE .

On DATE the applicant also lodged a constitutional appeal . He complained principally about the lack of an effective investigation into the events under Articles CARDINAL , DATE , DATE , DATE , DATE , DATE and CARDINAL of the LAW and Articles CARDINAL , DATE , DATE and CARDINAL of the Convention . On DATE his constitutional appeal was rejected by ORG , whose decision was served on the applicant on DATE . The court primarily considered the applicant ’s complaints under LAW and found them to be manifestly ill - founded . As to the applicant ’s complaint under LAW , ORG found it to be outside its temporal jurisdiction in view of the date of entry into force of the LAW itself . In respect of the other complaints , ORG held , inter alia , that :

“ it is not enough to allege a violation of one ’s rights in a constitutional appeal or list the constitutional rights that are considered to be violated and reasons for their violations based on the appellant ’s subjective estimation or evaluation , but to put each mentioned reason into a direct relationship with the allegedly violated constitutional right , and a violation or denial of a certain constitutional right has to be caused by an act or action that occurred before the entry into force of the LAW . This also implies that specific and detailed reasons of the alleged violation of the constitutional right have to be specified in the constitutional appeal , because only a causal link presented in such manner may compel the ORG to find a violation or denial of a certain right . ”


André Potocki;Ganna Yudkivska;Síofra O’Leary

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

The applicant stated that in DATE she had lent MONEY ( ORG ) to PERSON . She also stated that the loan had been repaid in part , and as of DATE , a debt of CARDINAL remained outstanding .

According to the applicant , on TIME DATE PERSON . and PERSON . ’s husband beat her in the front yard of their house after the applicant had asked them to repay the outstanding debt . She also alleged that the incident had occurred in public “ in front of passers - by who eyewitnessed it ” .

In the testimonies she gave to the police after the criminal investigation had been opened ( see paragraph CARDINAL below ) , the applicant specified that in the course of the conflict PERSON . had struck her on the head with a wet towel , then punched her on the head and on her breast , and PERSON . had also punched her on the head .

According to the statements of PERSON and PERSON . and several other witnesses who were interrogated by the police ( see paragraphs DATE and CARDINAL below ) , the applicant and PERSON . had a confrontation on DATE . No injuries were inflicted on the applicant in the course of that dispute .

On DATE the applicant was taken by ambulance to the emergency unit of the NORP Town municipal hospital , being admitted there at TIME According to the medical records , at the time of the applicant ’s admission she was diagnosed with a brain concussion but no other traumatic injuries . On DATE the doctors diagnosed bruising to the applicant ’s breast .

The applicant remained in hospital from DATE to CARDINAL DATE .

On DATE the applicant ’s husband lodged a complaint with the NORP Town police department . He claimed that PERSON . and her husband had punched the applicant in the head and breast in the yard of their house .

On DATE the police refused a request to institute criminal proceedings against Mr and PERSON . for lack of corpus delicti .

On DATE ORG ( ORG бюро судово-медичної експертизи ) carried out a forensic medical examination . The forensic experts recorded that on DATE the applicant had been admitted to hospital . Upon hospitalisation the applicant stated that at TIME that morning she had been beaten by “ an acquaintance ” . The forensic experts also found that the applicant had sustained a brain concussion and had a bruise on the right side of her chest . As she had suffered from the brain concussion for DATE , this injury was qualified as a bodily injury of medium severity . The bruise was qualified as a light bodily injury .

On DATE the NORP deputy prosecutor quashed the decision of DATE and instituted criminal proceedings against Mr and PERSON .

On DATE the police questioned PERSON . The Government provided copies of her testimony , which are , however , incomplete . It would appear that PERSON . stated that she had borrowed ORG MONEY from the applicant without signing any formal documents , and had subsequently repaid this sum . She also testified that on DATE the applicant and the applicant ’s husband had come to her house and demanded the interest on the above amount . PERSON . refused to pay the interest and there had been a dispute with the applicant , following which the applicant left .

On DATE the police questioned the applicant ’s husband as a witness .

On DATE the police questioned CARDINAL individuals , PERSON , PERSON . and PERSON GPE , who were eye - witnesses to the incident .

On DATE the deputy head of the investigation office of the NORP Town police department ( заступник начальника СВ ORG в Тернопільській області ) ordered an additional forensic medical examination .

On DATE the expert commission of ORG confirmed the findings of the expert examination of DATE . In addition , the experts noted that the applicant ’s brain concussion and the bruise had been inflicted by a blunt object and could not have been sustained by falling . The experts also stated that the dynamics of the applicant ’s clinical picture corresponded to her allegation that the injuries had been inflicted on her on DATE . They finally concluded that the brain concussion had been caused by a series of blows to the head .

On DATE the police questioned PERSON . as a suspect . He gave the same testimony as his wife ( see paragraph CARDINAL above ) .

DATE and DATE multiple face - to - face confrontations were carried out between the applicant , the suspects and various witnesses who had been questioned earlier , including PERSON Mr GPE , PERSON and PERSON .

On DATE the deputy head of the investigation office of the NORP Town police department terminated the criminal proceedings against PERSON and PERSON . for lack of evidence that a crime had been committed . CARDINAL accounts of events were noted in that decision , one suggested by the applicant and another one put forward on the basis of the statements of Mr and PERSON . and CARDINAL witnesses , T. and B. According to this second account of events , there had been a verbal confrontation between the applicant and PERSON . on DATE in the yard of the latter ’s house , during which no injuries had been inflicted on the applicant . It was noted in the decision that numerous witnesses had been questioned , facetoface interrogations had been held and forensic medical examinations had been carried out . It was concluded that , in view of the conflicting witness statements , it was impossible to establish whether the incident had occurred on CARDINAL or DATE and the police did not have sufficient evidence to prosecute PERSON and PERSON .

On DATE the ORG quashed the above decision and ordered an additional investigation .

On DATE the police again terminated the criminal proceedings against Mr and PERSON . They noted that PERSON and PERSON . testified that they had borrowed ORG MONEY from the applicant and had subsequently repaid this sum . Mr and PERSON . maintained that on DATE the applicant had come to their house together with her husband and had demanded the interest on the above amount . According to them , the applicant had with her a small pot containing an unknown liquid , which she said was acid . She had threatened to pour the acid into the eyes of the LOC . ’s child . PERSON called the police , but the applicant and her husband had left before they arrived . The police concluded that the evidence obtained as a result of the investigative measures was insufficient to prosecute PERSON and PERSON . and the identity of the applicant ’s assailant had not been established .

DATE and DATE the criminal proceedings in the applicant ’s case were terminated on QUANTITY occasions ( on DATE , DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE and DATE ) . All of these decisions were quashed by a senior prosecutor who ordered an additional inquiry , finding repeatedly that the investigation of the case had been “ incomplete ” .

NORP In particular , in the decision of CARDINAL DATE the deputy head of the investigation office of the NORP Town police department ordered that a reconstruction of the incident be staged with a view to establishing the facts of the case and in order to support or rebut the conflicting statements of the witnesses . He ordered specifically that it be established in the course of the reconstruction whether the witnesses ( including PERSON and B. ) could in fact have been able to observe the incident from the street outside the yard , as claimed by them . In a later decision , of DATE , a senior prosecutor from ORG noted , inter alia , the need to also question the ambulance personnel who had conveyed the applicant to the emergency unit on DATE .

On DATE the police questioned PERSON , a taxi driver . He testified that on DATE he had been driving his taxi and had picked up the applicant and her husband on the street where the house of PERSON and PERSON . is located . He added that the applicant had been in distress and held her hands to her head .

On DATE the first deputy ORG ( перший заступник прокурора міста PERSON ) noted that the investigating officer had failed to follow instructions and take the investigative measures required by the decision of CARDINAL DATE ( see paragraph CARDINAL above ) .

In DATE disciplinary proceedings were instituted against investigating officer PERSON for certain procedural violations , as a result of which the investigation became protracted . The outcome of these proceedings is unknown .

On DATE the police took CARDINAL procedural decisions in the case . By the first decision the police terminated the criminal proceedings against PERSON and PERSON . , reiterating the reasons given in the decision of DATE . By the second decision the criminal investigation of the case was stayed until the identity of the person who inflicted the injuries on the applicant could be established .


Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants , Mr PERSON , PERSON and PERSON PERSON are NORP citizens of NORP ethnic origin . They were born in DATE and DATE respectively and live in PERSON , GPE and GPE . They were represented before the Court by PERSON L. GPE , a lawyer practising in GPE .

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

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

On DATE the applicants’ father PERSON was killed in his house in PERSON in GPE .

On DATE the police carried out an on - site inspection of the crime scene and interviewed several persons . An autopsy was carried out on DATE .

Firearms were confiscated from CARDINAL persons , GPE , GPE and ORG ballistics report was drawn up on DATE , showing that the cartridges found at the crime scene had not been shot from the confiscated firearms .

NORP The police lodged a criminal complaint against an unknown perpetrator on CARDINAL DATE with the GPE ORG Attorney ’s ORG on charges of murder .

On DATE the third applicant asked the PERSON police for a certificate confirming that his father had died on DATE , which was issued DATE .

On DATE the applicants’ lawyer asked PERSON State Attorney ’s Office for a copy of the case file concerning the investigation into PERSON ’s death , for the purposes of having brought their application with ORG . He was informed that the criminal prosecution for the criminal offence of murder had become statutory barred on DATE .

On DATE the applicants brought a civil action against the ORG in ORG , seeking compensation in connection with the death of their father . They based their claim on the DATE LAW .

The claim was dismissed on DATE . This judgment was upheld on appeal by ORG and ORG on DATE and DATE respectively . The national courts found that the claim for compensation had been submitted after the statutory limitation period prescribed by the laws related to the compensation of damages in civil proceedings had expired .

A subsequent constitutional complaint lodged by the applicants was dismissed on CARDINAL DATE .

The relevant provisions of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL ) , as then in force , read as follows :

“ ( CARDINAL ) The right to claim fulfilment of an obligation shall cease when the statutory limitation period has expired .

( CARDINAL ) The statute of limitations [ bars a right to claim ] when the statutory prescribed period in which a creditor could have claimed fulfilment of an obligation has expired .

“ ( CARDINAL ) A claim for damages shall become statute - barred DATE after the injured party learned about the damage and the identity of the person who caused it .

( CARDINAL ) In any event that claim shall become statute - barred DATE after the damage occurred .

Article CARDINAL of LAW ( NORP zakon , ORG nos . CARDINAL , CARDINAL , CARDINAL , GPE , DATE , CARDINAL/CARDINAL , CARDINAL/CARDINAL , and CARDINAL ) prescribes imprisonment of DATE for murder . Qualified murder was punishable by up to twenty years’ imprisonment .

The relevant part of LAW ( PERSON , ORG nos . TIME , CARDINAL/CARDINAL , QUANTITY , CARDINAL , CARDINAL/CARDINAL , DATE , DATE , CARDINAL , CARDINAL/CARDINAL , DATE , DATE , ORG , ORG and DATE ) reads :

“ ( CARDINAL ) On account of the statute of limitations , the criminal legislation of GPE may not be applied after the period determined by this LAW has elapsed . The period is calculated from the time the offence was committed , sentence was pronounced or another criminal sanction was ordered .

( CARDINAL ) The previous rule does not apply in respect of the criminal offences of genocide ... , aggressive war ... , crimes against humanity ... , war crimes ... and other criminal offences which are not subject to statutory limitation according to the LAW or international law ”

“ ( CARDINAL ) Criminal prosecutions may not be instituted , save for the criminal offences referred to in DATE , after expiry of the following periods from the time the offence was committed :

- DATE for the offence punishable by long - term imprisonment ;

- DATE for the offence punishable by more than ten years’ imprisonment ;

- DATE for the offence punishable by more than five years’ imprisonment

“ ( CARDINAL ) The limitation period shall start to run from the date on which the offence was committed .

( CARDINAL ) The statutory limitation period shall be interrupted each time a procedural step is taken concerning the prosecution of the offence .

( CARDINAL ) The statutory limitation period shall start to run again after each interruption .

( CARDINAL ) Criminal prosecutions shall in all cases become time - barred after expiry of the double statutory limitation period . ”

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL ) provide :

“ ( CARDINAL ) A claim for compensation for damage caused by a criminal offence shall be examined in the criminal proceedings where so requested by authorised persons , provided that this does not cause significant delays in the proceedings .

“ A claim for compensation in criminal proceedings may be lodged by persons entitled to lodge such a claim in civil proceedings . ”

“ Persons entitled to lodge a claim for compensation ( Article CARDINAL ) may , until the end of the trial , withdraw their claim in the criminal proceedings and pursue it in the civil proceedings . ... “

The relevant provisions of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL ) read as follows :

“ If it is necessary for a court , in order to make its decision , to first settle an issue of the existence of a right or legal relationship , and no decision on this issue has yet been adopted by a court or other competent body ( preliminary issue ) , the court may settle the issue itself , unless otherwise provided for under special rules .

The court ’s decision on a preliminary issue shall have legal effect only in the proceedings in which the issue in question was settled .

In civil proceedings , where an issue arises in relation to a criminal offence and the perpetrator ’s criminal liability , the court shall be bound by the final judgment of the criminal court by which the accused was found guilty . ”

The relevant provisions of LAW ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , ORG no . CARDINAL of DATE “ the DATE LAW ” ) , which entered into force on DATE , provides as follows :

“ ( CARDINAL ) This Act regulates the liability for damage caused by acts of terrorism or other acts of violence committed with an aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ...

( CARDINAL ) A terrorist act within the meaning of this LAW is especially an act of violence committed for political reasons [ motives ] with a view to stirring up fear , terror or feelings of personal insecurity in citizens . ”

“ GPE shall be liable for the damage referred to in CARDINAL of this LAW .... ”

“ The obligation to compensate damage under LAW exists irrespective of the fact whether the perpetrator has been identified , criminally prosecuted or found guilty . ”

“ The victim shall have the right to compensation [ in the form of damages ] of damage resulting from death , bodily injury or impairment of health . ”

“ ( CARDINAL ) Where the statutory limitation period began before DATE , it shall continue after the entry into force of this LAW , and the period which had expired before the statutory limitation period was interrupted shall be counted into the overall statutory limitation period .

( CARDINAL ) Where the damage occurred after DATE the statutory limitation period begins from the entry into force of this LAW . ”

The domestic courts of appeal , on the subject of the possibility for a civil court to apply a longer statutory limitation period under LAW of LAW , held that this could be applied only if it had been established by a final judgment of the criminal court that the damage had been caused as the result of a criminal offence .

This view was confirmed by the practice of ORG . For example , in its decision no . Rev- CARDINAL of DATE it held as follows :

“ The lower court correctly established that section CARDINAL of LAW was not applicable in this case . ... The longer statutory limitation period [ under LAW of LAW ] applies only when it has been established by a judgment in the criminal proceedings that the damage was caused by a criminal offence ... ”

ORG , in its decision no . Rev-CARDINAL/CARDINAL - CARDINAL of DATE , examined the possibility for a court in civil proceedings to assess the statutory limitation period under LAW of LAW if criminal liability had not been established by a final criminal court judgment . The relevant part of the decision reads as follows :

“ The conclusion of the lower courts that LAW is applicable only if the criminal offence has been established by a final judgment of the criminal court is incorrect . This is because , according to the well - established case - law , if damage has been caused by a criminal offence but no criminal proceedings have been instituted or concluded against the perpetrator because of his death or mental illness , or the offence at issue has been exempted from prosecution by a pardon or amnesty , or if there exist some other circumstances preventing criminal responsibility from being established or barring the criminal prosecution , the fact that the damage was caused by a criminal offence may , if the defendant has invoked the statute of limitations , be established ( as a preliminary issue ) in the civil proceedings .

It is also to be noted that the longer statutory limitation period under LAW of LAW is applicable not only in respect of the perpetrator of the criminal offence but also in respect of the person responsible for the damage . ”


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione personae);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in DATE and lives in GPE .

The applicant was a professor and the head of ORG and Venereal Diseases of ORG ( hereafter “ ORG ) , which is a ORG university . The applicant had been elected to the position of head of department with effect until CARDINAL DATE . He was also an elected member of the constituent assembly of ORG sapulce ) .

On DATE ORG decided to merge ORG and Venereal Diseases and ORG . That decision was approved by the ORG of ORG ( PERSON ) on the following day . It appears that as a result of the merger the position of head of department occupied by the applicant was abolished . Accordingly , on DATE the applicant received a warning ( brīdinājums ) to that effect and was given the opportunity to agree to the changes in his contract with ORG . He was also informed that if he refused , his employment relationship with the University would be terminated .

On DATE the applicant sent various emails to the Rector of the University concerning the circumstances of the reorganisation and the abolition of his department . He criticised the decisions taken by the deputy dean , PERSON

On DATE the applicant sent another email to the Rector of the University and to several other recipients , including the members of the ORG . The email criticised the lack of democracy and accountability in the leadership of the organisation , which , according to the applicant , stemmed from the fact that all the members of the ORG were also a part of the executive authority of the ORG and there was thus an inadequate system of checks and balances . He also drew the recipients’ attention to the alleged mismanagement of the GPE ’s finances . In support of this allegation the applicant relied on the conclusions adopted by ORG ( ORG ) in DATE .

The applicant further spoke in unfavourable terms about several representatives of the management of ORG , stating , for example , that [ Mr ... ] . “ pretends to be a God - fearing NORP ... yet , as far as is known , has several children born out of wedlock ” , that [ Mr ... ] “ can not decide a single question by himself , does not keep his word , is lying ” and that [ Mrs ... ] “ has called me and asked me to break the law in the interests of her protégés ” .

Finally , the applicant came up with a proposal involving several amendments to the constitution of the University , such as changes in the election of the members of the ORG ( an obligation to inform the constituent assembly of the candidate ’s CV at least one week before the elections , the setting - up of an independent electoral commission ) ; separation of powers between the ORG ’s governing bodies ( ORG members should not be part of the executive body of the University ) ; and the granting of independence to the ORG ( changing the remuneration system so that the Rector did not unilaterally fix the remuneration of members of the ORG ) . He asked the Rector to forward his proposals to the members of the constituent assembly and to send him the email addresses of those members or inform him where to find those contacts .

It appears that on DATE the applicant expressed his disagreement with the reorganisation at the meeting of the ORG of the university which upheld the decision .

On DATE the applicant sent an email to the Rector of the University . The subject - line of the email read “ Settlement agreement ” . The text of the email read as follows :

“ To the Rector of ORG Confidential

[ CARDINAL ] Dear Rector ,

[ CARDINAL ] In view of the situation which has evolved and the advice of my lawyers and supporters , I hereby propose the following settlement agreement .

[ CARDINAL ] It would entail :

[ CARDINAL ] Version CARDINAL

[ CARDINAL ] You ( the University ) revoke all the orders and decisions of the ORG concerning the abolition / merger of ORG and Venereal Diseases . I for my part withdraw all my appeals , thereby restoring the situation as it was before the decision of the ORG of CARDINAL DATE . Meanwhile the CARDINAL lecturers ... ( all of them were recognised as plagiarists by a decision of the [ NORP association of doctors ] ) who expressed their intention to move to ORG , are transferred to that ORG . I have no objections if the specialist ... who , it is common knowledge , is the mother of ... ’s daughter , is transferred to another post or fired . DATE she did not spend DATE at work in ORG and Venereal Diseases ( presumably she reports to ... or has been transferred to ... or another department , or maybe [ she has ] submitted her resignation , I do n’t know ) .

[ CARDINAL ] Version CARDINAL . I , as a head of department elected until DATE , and after having received a certain amount of compensation on which we would agree ( for example , ORG CARDINAL ) , as provided for by my agreement with the ORG , agree terms with you , the dispute is terminated and I leave the post .

[ CARDINAL ] Of course I understand that at the constituent assembly of the ORG you , as Rector , can secure a decision that is favourable to you . However by this means nothing would come to an end but would only start , as I reserve the right to appeal against all the decision [ adopted by ] ORG in the administrative , district and regional courts , while of course making everything public beforehand and attracting the attention of society .

[ CARDINAL ] I do not believe that in DATE , taking into consideration the latest news ( the conclusion adopted by ORG on the illegalities at the ORG , plagiarism on the part of lecturers and professors of the GPE etc . ) , you would want to have additional tasks and trouble ( nodarbošanos un nepatikšanas ) .

[ CARDINAL ] I am sure that I do n’t want this and I wish to be allowed to work in a creative manner with students in my field as before . In addition , I have much work to do organising CARDINAL large NORP congresses in DATE and DATE in GPE , in both of which my participation as president has been confirmed .

[ CARDINAL ] Since I have also not received the list of members of the constituent assembly of ORG ( which was requested from you and the ORG in my letter of DATE ! ? , a fact which demonstrates the lack of democracy [ at ] ORG ) , I will await a reply from you by DATE , DATE at TIME If we are unable to reach agreement by signing a settlement agreement I will make all my current information public in the form of an open letter so that the members of the constituent assembly of the University also have DATE before the meeting to think about their vote .

Professor PERSON

P.S. [ contains a request concerning one of the applicant ’s staff members who was on sick leave but at the same time attended meetings of the ORG ] .

On DATE the Rector replied to the applicant that he could not agree to any of the proposals .

The following day , DATE , at the meeting of the constituent assembly of the University , the applicant expressed his disagreement with the reorganisation and asked that the decision concerning the merger of faculties be annulled . His request was not upheld . On DATE the national news agency ORG published the applicant ’s views about the alleged shortcomings in the management of ORG . The criticisms referred to the conclusions of ORG .

On DATE and DATE the Rector asked an ad hoc investigative committee and the ethics committee to review the applicant ’s conduct .

On DATE the applicant received a notice of termination of employment ( uzteikums ) from the University , in which he was informed that his employment contract with the ORG would be terminated DATE after receipt of the notice . The legal basis for the applicant ’s dismissal was section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) of LAW , and the applicant was deemed to have acted in contravention of several provisions of the ORG ’s staff regulations ( see Relevant domestic law part , DATE below ) . The notice stated , inter alia , as follows :

“ The ground for dismissal is the email you sent to the Rector of [ the University ] on DATE , in which , while addressing the Rector concerning issues of interest to you , you included inappropriate demands , including elements of blackmail and undisguised threats . As a consequence your actions are considered as very grave infringements of basic ethical principles and standards of behaviour , and as absolutely contrary to good morals . The fact of sending such a letter , and its contents , are clearly contrary to good morals , all the more so taking into account the circumstances in which the letter was sent and your attitude . ”

On DATE the University dismissed the applicant from his post . Soon afterwards he took up a post in another university in GPE .

The applicant submitted a claim to ORG , asking the court to invalidate the notice of termination and to order his reinstatement and payment of the unpaid salary and benefits together with compensation for non - pecuniary damage .

In a judgment of DATE ORG allowed the applicant ’s claim in part . It held that the fact that the applicant ’s employer had been offended by his email was not a legitimate reason for his dismissal , since section CARDINAL of ORG did not include such a ground . The court considered that the allegation that the applicant ’s email had contained elements of blackmail and threats was merely speculation on his employer ’s behalf . It was additionally found that the applicant had not been given an adequate opportunity to respond to the allegations contained in the termination notice before that notice was sent to him . Accordingly the court annulled the termination notice and ordered the applicant ’s reinstatement with back - payment of his salary . The applicant ’s claim for compensation in respect of non - pecuniary damage was rejected as unsubstantiated .

Both the applicant and the ORG appealed . During the court hearing the applicant mentioned that he had requested that several illegalities be examined at the meeting of the constituent assembly of DATE . Counsel for the defendant stated that both the ad hoc investigative committees set up by the Rector had found that the content of the letter was to be perceived as blackmail and threats . He contended that the request to receive a certain amount in compensation and the deadline by which the reply had to be received all proved the breach of ethical norms . The defendant further alleged that several “ defamatory facts about the University ” had been published on DATE by ORG , and considered that the above activities therefore confirmed the threats made in the applicant ’s email .

On DATE ORG quashed the first - instance court ’s judgment and dismissed the applicant ’s claim in full . The appeal court considered that in his email of DATE the applicant had invited the Rector to carry out “ unlawful actions ” , namely to annul a decision of the ORG of the University ( concerning the merger of CARDINAL departments within ORG ) . Such action was deemed to be “ unlawful ” because annulling decisions of the ORG of the ORG exceeded the Rector ’s authority . The court also considered that the applicant had requested “ unreasonably high compensation ” for the termination of his employment . These CARDINAL considerations led the appeal court to conclude that the applicant had failed to observe basic ethical principles such as honesty , collegiality and responsibility .

The conclusions of the appeal court echoed those reached by the ORG ’s ethics committee and by CARDINAL ad hoc investigative committees set up on DATE and DATE . In particular , the court observed in point CARDINAL that the committee had concluded that the infringements committed by the applicant were demonstrated by the fact that he had sent the email and had carried out “ other activities after the ORG ’s decision of CARDINAL DATE ... including making unfounded statements , for example , about the abolition of the department , the circumstances of the reorganisation that had been directed against the applicant , and threats made by PERSON against the applicant . The email of DATE ... comprises statements , for example , about ... private life and religious convictions ” .

NORP The court further noted that it was apparent from the materials in the case file that on DATE the national news agency ORG had published the applicant ’s views about events in the ORG , in which he had criticised the leadership of the ORG , stating that a group of CARDINAL to fifteen persons had usurped all power and set up an authoritarian or even dictatorial regime . The court also referred to the content of the email the applicant had sent on DATE ( see paragraph CARDINAL above ) and came to the conclusion that he had contravened the obligation to treat the staff of ORG .

The court turned next to the question of “ good morals ” and , after finding that this term had no precise legal definition , proceeded to conclude that it consisted of CARDINAL “ basic ethical principles ” : “ the principle of integrity and righteousness ” , “ the principle of responsibility ” and “ the principle of loyalty ” . It found that the applicant had acted in breach of these principles and that there was :

“ [ CARDINAL ] ... no reason to conclude that the applicant had only intended to inform [ the Rector ] about [ his plan ] to exercise his democratic rights , [ that is ] , to submit complaints to the courts and to publish information in the media , while respecting the interests of society . The content of the letter [ of DATE ] attests to [ the applicant ’s ] wish to act for a selfish cause , namely to retain his position as a head of department , contrary to the ORG ’s decision on reorganisation , or to receive substantial financial compensation , regardless of [ the need to use ] the budget of [ the University ] in an economical and reasonable way in compliance with the goals of the [ University ] .

[ The appeal court ] finds that there is no evidence that prior to the letter of DATE [ the University ] had obstructed the applicant ’s democratic rights to inform society and the competent institutions about the alleged violations in the [ University ] .

Taking into account the aforementioned finding , [ that is ] , that the [ applicant ’s ] aim in writing the letter of DATE was selfish , the [ appeal court ] finds that the [ applicant ] sought to achieve a result beneficial to himself by trying to persuade [ the Rector ] to take unlawful steps . In view of the aforementioned considerations , this should be considered a threat . ”

Turning to the applicant ’s claim for compensation in respect of non - pecuniary damage , the appeal court cited section CARDINAL ) of LAW ( see the Relevant domestic law part , paragraph CARDINAL below ) and disagreed that the applicant ’s dismissal had created “ unjustified consequences ” ( nepamatotas sekas ) or caused non - pecuniary damage simply because the applicant had expressed legitimate concerns about the reorganisation of ORG and about the way its financial resources were used . The court ’s reasoning in that regard read as follows :

“ [ The appeal court ] , on the basis of experience and logic , finds that a calm and positive atmosphere and a respectful attitude among colleagues best contribute to achieving constructive dialogue .

Having analysed the above - mentioned evidence , the [ appeal court ] considers that nothing prevented the applicant from expressing his opinion in a manner compatible with ethics and the staff regulations ” .

The applicant submitted an appeal on points of law , disputing , inter alia , the appeal court ’s findings to the effect that , by sending CARDINAL confidential letter to CARDINAL recipient ( namely the Rector of ORG ) , in which he had raised points concerning the unjustified use of funds from the ORG budget , he had committed an infringement of work - related rules and ethics of such gravity as to justify his dismissal . The applicant also invoked in this connection that he had an obligation to inform the society about the unjustified use of funds , therefore the appellate court had erred in finding that the impugned email was unethical . The applicant ’s appeal on points of law was rejected by the ORG of ORG in a preparatory meeting on DATE .

On DATE the Rector of the ORG sought to institute criminal proceedings against the applicant for extortion . The criminal proceedings were instituted on DATE on the basis of section CARDINAL of LAW ( extortion ) and the applicant was ordered not to leave his permanent residence for CARDINAL without the permission of the competent investigative authority . The criminal proceedings were discontinued on DATE for lack of corpus delicti . The decision to discontinue the criminal proceedings stated , inter alia , that according to the linguistic expert ’s conclusions the impugned email contained clearly expressed demands to pay a certain amount of money as well as undisguised threats to disclose disreputable information about [ the Rector ] prior to the meeting of the ORG . It also noted that the email demonstrated the applicant ’s wish to act selfishly , either in order to maintain his post or to receive a significant amount in compensation for the termination of his employment contract . However , as the Rector ’s attitude demonstrated that the threats were not perceived as real , the court ruled that the criminal proceedings should be terminated and that the Rector had the right to institute defamation proceedings .


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

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

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

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

On DATE the applicant married GPE The couple settled in GPE .

On DATE PERSON gave birth to a son , S.

On DATE PERSON left the applicant . Together with the child she moved to her GPE house in GPE , a town in LOC . The applicant was prevented from seeing the child .

Following an application by GPE , on CARDINAL DATE the Justice of ORG dissolved the marriage between the applicant and GPE

On DATE the applicant brought court proceedings against GPE , seeking to have the terms of his contact with his son determined .

On DATE ORG of the Tambov Region ( “ the ORG ” ) granted the applicant ’s claims in part . ORG held that contact sessions between the applicant and his son should take place in the presence of GPE twice a month on DATE and third Sunday of the month from TIME , either at the child ’s place of residence or in public recreation facilities . The judgment was not appealed against and became final on DATE .

Regardless of the above judgment , ORG continued to hinder the applicant ’s contact with the child .

On DATE the applicant brought court proceedings against GPE , seeking to have the obstacles to his contact sessions with PERSON removed and the terms of his contact with his son revised , in particular so as to allow him to take the child on DATE both in GPE and abroad , to spend public holidays with him , and to spend birthdays with him ( those of the child , the applicant and the paternal grandmother ) .

On DATE ORG obliged GPE not to hinder the exercise of the applicant ’s contact rights . It further held that the contact sessions between the applicant and his son should take place in the presence of ORG DATE , on DATE , from TIME , either at the child ’s place of residence or , if the weather permitted , outside . GPE was also obliged to give the applicant DATE updates about the child ’s health and the choice of pre - school and school facilities for him . ORG rejected the remainder of the applicant ’s claims , finding , with reference to the local authority child services report , that the above contact schedule would be appropriate considering the young age of the child , his attachment to his mother , and the importance of maintaining his routine . ORG further took into account the extremely tense relationship between the applicant and GPE and their inability to reach a mutual agreement on the matter . The applicant appealed .

ORG ’s best interests .

The applicant lodged a cassation appeal with the Presidium of ORG , asking it to quash the judgment of DATE , as upheld on appeal on DATE .

On DATE a judge of ORG decided not to refer the case for consideration by the ORG of that court .

On DATE ORG issued a writ of execution in respect of the judgment of DATE .

On DATE the applicant applied to ORG ( “ the ORG ” ) for institution of the enforcement proceedings .

On DATE a bailiff from ORG began the enforcement proceedings and appointed an officer to be present at each scheduled meeting between the applicant and his son , to eliminate the obstacles to the applicant ’s contact with the child which ORG could create .

According to the applicant , in the period DATE and DATE when he tried to see his child without the assistance of the bailiff , GPE prevented him from doing so on CARDINAL occasions ( on CARDINAL May , DATE and DATE ) , and either she or her parents interfered with his contact on QUANTITY occasions ( on DATE , DATE and DATE ) .

According to the ORG , DATE and DATE , with the assistance of the bailiff , the applicant met his child on DATE determined by the judgment of DATE .

NORP The bailiff ’s report on the applicant ’s meeting with his son on DATE mentions that the applicant used abusive language in the presence of the child .

The bailiff ’s reports of DATE , DATE , DATE and DATE mention that the applicant did not attend the meetings .

On DATE , while out walking with his son , the applicant took the child by the hand , went to his car and drove off with him without the bailiff ’s permission . The bailiff followed the applicant . The applicant tried to take the child to the house of some of his acquaintances , but the bailiff stopped him . After that , the applicant kept the child in his car for TIME . He insulted the child ’s mother and the bailiffs . Later , GPE called the police . The applicant ’s contact session ended at TIME in the police station .

On DATE , DATE and DATE the applicant drove off with his son in an unknown direction and in the absence of the mother . While driving off , he insulted the bailiffs and argued that their presence was hindering his contact with the child .

On DATE the bailiff took a decision to terminate the enforcement proceedings and return the writ of execution to the applicant , because his actions were preventing the enforcement . In particular , the applicant had gone off with the child in an unknown direction and had had contact with him in the absence of GPE , in breach of the judgment of CARDINAL DATE , following which he had refused to return the child to the mother at the prescribed time . The applicant challenged the lawfulness of the bailiff ’s decision to terminate the enforcement proceedings .

On DATE ORG dismissed the applicant ’s appeal .

On DATE ORG upheld the above decision on appeal .

On DATE the enforcement proceedings were reopened following the resubmission of the writ of execution by the applicant .

On DATE and DATE , when the applicant was supposed to meet his son , GPE and the child were not at home .

In this connection , on DATE GPE was found administratively liable under LAW of LAW . The bailiff gave her an administrative fine in the amount of MONEY ( RUB ) .

Furthermore , the bailiff obtained explanations from GPE for her failure to let the applicant meet his son on CARDINAL and DATE . ORG explained that she had hindered the applicant ’s meeting with the child because , during the previous meetings , he had tried to hide the child in the house of his acquaintances and she had only managed to get her son back with the help of the police . Besides , the applicant regularly got into fights or arguments in the presence of the child and was aggressive towards her . In particular , on CARDINAL DATE , under LAW § CARDINAL of LAW , ORG had found the applicant guilty of beating GPE The proceedings had subsequently been terminated as a result of the parties reconciling . On DATE the Justice of the Peace of the CARDINALst ORG of GPE of LOC had found the applicant administratively liable under LAW , because on DATE , upon arriving at GPE ’s house to visit his son , he had behaved aggressively and used abusive language . On DATE ORG had upheld the above judgment on appeal . The applicant had subsequently been found administratively and criminally liable on DATE , DATE and DATE for inflicting physical injuries on GPE , and insulting both her and her mother .

During his meeting with his son on DATE the applicant went off with the child in an unknown direction and never returned him to GPE

On DATE the bailiff entrusted ORG with establishing that the child was at the applicant ’s place of residence .

On an unspecified date ORG informed ORG that the applicant and the child did not reside at the address in GPE indicated in the enforcement document .

On DATE the bailiff received a request from the applicant for return of the writ of enforcement without execution .

On DATE the enforcement proceedings were terminated .

GPE brought court proceedings against the applicant , seeking to have it determined that her son should reside with her .

On DATE ORG of GPE granted her claim and held that the child should reside with her .

Regardless of the above judgment , the applicant continues to retain the child .

A parent living apart from his or her child is entitled to maintain contact with the child and participate in his or her upbringing and education . The parent with whom the child resides may not hinder the child ’s contact with the other parent , unless such contact undermines the child ’s physical or psychological health or moral development ( LAW ) .

The parents have the right to conclude a written agreement on the way the parent living apart from the child may exercise his parental duties . If the parents can not reach an agreement , the dispute must be resolved in court with the participation of the childcare authority , upon a claim lodged by the parents ( or CARDINAL of them ) . In the event of non - compliance with the court decision , measures set out in the civil procedural legislation are applied to the parent guilty of non - compliance . In the event of persistent non - compliance with the court decision , the court may , upon a claim by the parent living apart from the child , take a decision to place the child in his or her care , based on the child ’s interests and taking into account the child ’s opinion ( Article CARDINAL § § CARDINAL - CARDINAL ) .

Judgments in cases involving issues relating to the upbringing of children are enforced by a bailiff in conformity with the procedure laid down by the civil procedural legislation . If CARDINAL of the parents ( or another person in whose charge the child is ) obstructs the enforcement of the court judgment , measures stipulated by the civil procedural legislation will be applied to him or her ( LAW ) .

A bailiff must issue a decision to open enforcement proceedings or to refuse to open proceedings within DATE of receipt of a writ of execution ( section CARDINAL ) .

A writ of execution which has not been enforced or which has been enforced in part shall be returned by the bailiff to the person in whose favour a judgment has been made if the latter prevents enforcement by his own actions . The bailiff shall draft a report outlining the circumstances warranting the return of the writ of execution to that person , which shall be approved by the chief bailiff or his deputy . After that , the bailiff shall make a decision on termination of the enforcement proceedings and the return of the writ of execution to the person in whose favour the judgment was made ( section CARDINAL ) and ( CARDINAL ) , PERSON ) and CARDINAL ) ) .

The return of the writ of execution to the person in whose favour a judgment has been made does not prevent that person from resubmitting the writ of execution for enforcement within the time - limit provided for by section CARDINAL of the present law ( section CARDINAL ) ) .

The enforcement of a writ of execution concerning contact rights consists of the bailiff securing free contact between the person in whose favour a judgment has been made and the child , in accordance with the schedule determined by the court ( section CARDINAL.CARDINAL(CARDINAL ) ) .

In the event of a breach of enforcement proceedings by the person against whom a judgment has been made , that person shall be found administratively or criminally liable in accordance with NORP law ( section CARDINAL ) .

The decisions , actions or inaction of the bailiff can be challenged by the parties to the enforcement proceedings before the bailiff ’s superiors or before a court ( section DATE ) ) .

Violations by parents or other legal representatives of the rights and interests of minors by preventing the minors from having contact with their parents or other close relatives , provided that such contact is not contrary to the interests of the child ; deliberately concealing ORG whereabouts ; and non - compliance with court judgments determining ORG places of residence are all punishable by an administrative fine ranging from RUB CARDINAL to RUB CARDINAL , and an administrative fine of MONEY or administrative arrest for DATE in the case of a repeat offence ( Article CARDINAL § § CARDINAL ) .


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

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant brought an action against his parents before ORG for dissolution of joint ownership of a real property .

On DATE the court suspended the proceedings pending the adjudication of a preliminary question in other proceedings . Upon termination of the other proceedings on CARDINAL DATE , ORG continued hearing the case .

On DATE the court again suspended the proceedings pending the adjudication of a preliminary question in another related procedure . Upon termination of these proceedings on CARDINAL DATE , ORG ordered continuation of the case on DATE .

An agreement was reached between the parties which was acknowledged and incorporated into a judgment by ORG on DATE .