No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

The applicant was born in DATE . He is currently serving a prison sentence in GPE .

On several occasions DATE the applicant was escorted to court hearings from various detention facilities where he was being held . During these transfers the applicant was subjected to strip - searches . According to the applicant , he was ordered to strip naked in the presence of other inmates and escorting officers , to assume embarrassing positions ( squatting ) , and to submit to a visual inspection of his body .

The strip - searches of the applicant were carried out on DATE , CARDINAL and DATE , CARDINAL DATE and DATE .

The applicant lodged several applications with the administrative courts concerning the strip - searches . They were all joined in CARDINAL set of administrative proceedings ( no . ORG ) .

On DATE ORG ( Administratīvā rajona tiesa ) dismissed the applicant ’s complaints and terminated the proceedings . It held that the strip - searches had been objectively justified on security grounds and the manner in which they had been conducted had not gone beyond what had been required to ensure the efficacy of those searches . Therefore these searches had not “ significantly interfere[d ] ” with the applicant ’s rights and had not constituted an “ action of a public authority ” ( see paragraphs CARDINAL and CARDINAL below ) . The applicant appealed .

On DATE ORG ( NORP apgabaltiesa ) dismissed the applicant ’s appeal and upheld the ruling of the lower court .

On DATE the ORG of ORG ( PERSON tiesas PERSON ) quashed the ruling of the appeal court and remitted the case to the first - instance court . The ORG of ORG found that the strip - searches had had a legitimate goal , namely ensuring public safety , and had not been carried out in an abusive manner . However , the lower courts had not sufficiently addressed the applicant ’s argument that he had been subjected to strip - searches in the presence of other persons .

On DATE and DATE hearings took place before the first - instance court . In order to clarify the facts CARDINAL witnesses – CARDINAL escorting officers and QUANTITY prisoners DATE were called .

On DATE ORG dismissed the applicant ’s complaints and terminated the proceedings .

As concerns the strip - searches carried out on DATE , CARDINAL and DATE , the court , on the basis of witness testimony , found that the applicant had been searched in the presence of CARDINAL inmate and CARDINAL additional escorting officer . However , taking into account that the applicant had not voiced any concerns in this regard during the first round of proceedings , the court concluded that “ the strip - searches ... had not humiliated the applicant in the eyes of others or in his [ own ] eyes ” . Accordingly , the court could not establish a “ significant violation ” of the human rights guaranteed under LAW .

As concerns the strip - searches carried out on DATE and DATE , the court found that the evidence did not support the applicant ’s allegation that he had been searched in the presence of other persons . The court dismissed the applicant ’s further allegations ( the presence of female officers , being exposed to the court ’s staff and passers - by , unsanitary touching of his food ) as unsubstantiated .

On DATE the ORG of ORG , by a final decision , dismissed the applicant ’s appeal and upheld the ruling of the lower court .


CASE OF HALDIMANN AND OTHERS v. SWITZERLAND

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

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


CASE OF BALANDINA AND ANDREYKO v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

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

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law . In application no . CARDINAL , the applicant also raised another complaint 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)

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

The applicants are the joint owners of a plot of land designated as agricultural land in GPE . The land in issue was recorded in the land register as PERSON no . CARDINAL , FAC no . CARDINAL .

On DATE the regional councillor for public works issued a decree authorising the Municipality to take possession , through an expedited procedure and on the basis of a public - interest declaration , of a portion of the applicants’ land in order to begin the construction of a road .

On DATE the authorities took physical possession of the land .

By a writ served on DATE , the applicants brought an action for damages against ORG before ORG . They alleged that the occupation of the land was illegal and that the construction work had been completed without there having been a formal expropriation of the land and payment of compensation . They claimed a sum corresponding to the market value of the land and a further sum in damages for the loss of enjoyment of the land during the period of lawful occupation .

On an unspecified date the court ordered an expert valuation of the land . In a report submitted on DATE the expert concluded that the occupied land covered a surface area of QUANTITY and confirmed that it could be classified as building land . He further concluded that the market value of the land on the date the occupation became unlawful , which he identified as having occurred on DATE , corresponded to MONEY ( ORG ) per square metre , for a total of EUR CARDINAL.CARDINAL .

By a judgment delivered on DATE and filed with the court registry on DATE , ORG declared that the possession of the land , which had been initially authorised , had become unlawful as of DATE . It found that the land had been irreversibly transformed by the public works . As a result , in accordance with the constructive - expropriation rule ( occupazione acquisitiva or accessione invertita ) , the applicants had been deprived of their property , by virtue of its irreversible alteration , on the date on which the possession had ceased to be lawful . In the light of those considerations , the court concluded that the applicants were entitled to compensation in consideration for the loss of ownership caused by the unlawful occupation .

The court drew on the expert valuation to conclude that the land could be classified as agricultural land and that its market value on the date the occupation had become unlawful corresponded to ORG CARDINAL.CARDINAL . However , in contrast with the expert ’s finding , the court reiterated that the occupation had become unlawful as of DATE .

Therefore , the court held that the applicants were entitled to compensation in the sum of ORG CARDINAL.CARDINAL , to be adjusted for inflation , plus statutory interest .

The court further awarded the applicants ORG CARDINAL as compensation for the damage occasioned by the unavailability of the land during the period from the beginning of the lawful occupation ( DATE ) until the date of loss of ownership ( DATE ) .

The judgment became final in DATE .


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The applicant , PERSON , is an NORP national , who was born in DATE and is under house arrest in LOC di Pietrasanta . She was represented before the ORG by Mr D. Ammannato , a lawyer practising in GPE .

NORP summarised as follows .

On DATE the applicant was convicted of a number of criminal offences by ORG . Such offences included criminal association , aggravated fraud , and ill - treatment .

On an unspecified date she lodged an appeal with ORG .

On DATE ORG partly upheld and partly reversed ORG judgment . The conviction for the offence of criminal association was upheld .

On an unspecified date the applicant lodged an appeal on points of law with ORG .

She states that on DATE the President of Second Criminal Section of ORG set the hearing for DATE .

On DATE ORG ( Unione Camere Penali italiane ) called a DATE strike , scheduled to run from DATE .

On DATE the applicant filed additional written submissions with the court .

On DATE the applicant ’s counsel formally adhered to the strike and filed a notice to that effect with ORG , having obtained the applicant ’s consent in writing . For this reason , he was not present at the hearing of DATE .

It appears from the hearing record that the Prosecutor General requested that ORG refrain from adjourning the hearing on account of the counsel ’s absence . The court granted the prosecutor ’s request and the hearing was held as scheduled .

ORG In a judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal .

On DATE the ORG preliminary investigations judge ordered that the applicant be placed in pre - trial detention on suspicion that she had committed further offences . These included the offence of criminal association , of which the applicant was suspected of being the leader , promoter and organizer . The applicant was also suspected of having committed the offence of unauthorized practice of medicine . Specifically , she was suspected of providing medical advice and treatment , as well as prescribing drugs to adults and minors , and using her home as an unauthorized medical clinic . She was further suspected of fraud , aggravated by a number of factors including the exploitation of vulnerable ORG pain and suffering , and the generation of ill - founded fears from which she profited . The preliminary investigations judge emphasised that the applicant had been previously convicted of similar offences .

It appears from the material in the case file that pre - trial detention had been requested on a number of grounds , namely the strong evidence against her , the seriousness of the suspected offences , and the significant risk that she might reoffend .

The applicant states that she was transferred to the LOC correctional facility in GPE on DATE .

On DATE the applicant ’s counsel lodged a request with the ORG preliminary investigations judge , seeking the replacement of the applicant ’s detention with a more lenient custodial measure , such as house arrest . He argued that both her advanced age and allegedly critical state of health were incompatible with detention in prison .

On an unspecified date the judge ordered that she be examined by an independent medical expert with a view to determining whether this was the case .

In an order of CARDINAL DATE the judge confirmed that the applicant would remain in custody , as the independent medical expert ’s report had stated that her state of health was compatible with detention .

On DATE the applicant lodged an appeal with ORG on CARDINAL main grounds . She contended that while under LAW § CARDINAL of LAW ( see paragraph CARDINAL below ) the detention on remand of persons aged over seventy was only allowed if exceptional reasons warranting such a measure existed , in her case no such reasons could be detected . She further reiterated the argument that her advanced age and critical state of health were incompatible with detention in prison , contending that she suffered from life - threatening medical conditions she identified as cardiovascular disease , acute osteoporosis and diabetes . She also highlighted that she had undergone major surgical procedures in the past , including a gastrectomy , mastectomy , and hysterectomy , and suffered from anxiety disorder and glucose intolerance .

ORG , sitting as the authority with jurisdiction to decide on measures involving deprivation of liberty ( tribunale della libertà e del riesame ) , dismissed the applicant ’s appeal on DATE . It found that the exceptional grounds for her to be detained on remand , as listed in the preliminary investigation judge ’s order of CARDINAL DATE , still existed . It further pointed out that she had in the past been convicted of analogous offences and had , as soon as she had been released , resumed her criminal activity . As to the applicant ’s health , the court drew on the expert medical report requested by the preliminary investigations judge to conclude that there was no incompatibility between it and her detention in a correctional facility . Referring to extracts from the report , the court observed that there was no evidence of an imminent risk of congestive heart failure or other life - threatening conditions , contrary to her contentions . It went on to acknowledge the expert ’s finding that she had undergone several major surgical procedures in the past , but that these had allowed for the treatment of serious medical conditions , thus leading to an improvement in her clinical situation . Drawing on the report , it further concluded that the provision of special meals to meet her nutritional needs and the necessary drug therapy could be adequately taken care of in a correctional facility . It appears from the order that the court also examined medical reports submitted by the prosecutor and applicant ’s counsel and took the latter into account when reaching its conclusions .

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

On DATE she was committed for trial and the first hearing before FAC was scheduled for DATE . She was formally charged with all the suspected offences including criminal association , the unlawful practice of medicine , and aggravated fraud ( see paragraph CARDINAL above ) .

On DATE ORG declared the appeal inadmissible .

On CARDINAL DATE the applicant ’s counsel submitted a further request seeking the replacement of the applicant ’s detention with house arrest , reiterating the argument that both her advanced age and state of health were incompatible with detention in prison . He relied , inter alia , on a medical certificate issued by the prison doctor on DATE , in which her clinical condition was described as “ complex and multifaceted ” and “ difficult to manage ” in a regular correctional facility .

On an unspecified date ORG ordered a new medical examination with a view to assessing the compatibility of her state of health with detention .

On DATE it dismissed the request for house arrest , having regard to the persistent danger that the applicant might reoffend . However , the court ordered that she be transferred to a correctional hospital ( centro clinico penitenziario ) in GPE with a view to ensuring increased medical supervision and the provision of any necessary treatment , and preventing a further deterioration in her health . The court reached its conclusions by relying on a number of findings by the expert , who found that the gastrectomy performed in DATE had left her with some long - term side effects , including insufficient absorption of calcium and vitamin NORP He also noted with some concern that she had experienced height and weight loss and that her osteoporosis had worsened during DATE spent in detention . In order to manage her condition effectively and prevent its deterioration , the expert noted that she would require small , frequent meals , a special diet enriched by dietary supplements , and some form of exercise . Finally , he pointed out a slight cerebral atrophy , coupled with a mild anxiety - depressive disorder .

On DATE the applicant lodged an appeal , reiterating the incompatibility of her age and state of health with any form of detention , even in a correctional hospital .

On DATE ORG , sitting as the authority with jurisdiction to decide on measures involving deprivation of liberty , placed the applicant under house arrest . It relied on the medical report submitted by the expert to ORG to conclude that an “ incompatibility in substance ” with detention existed in her case and that a less restrictive measure , such as house arrest , was preferable under the circumstances .

It ordered the applicant ’s immediate release and set out the specific conditions of her house arrest , including the requirement that she stay in her home at all times , leave only with the LOC prior permission , and refrain from contacting or interacting with anyone except her authorised cohabitees and medical staff .

On DATE the public prosecutor lodged an appeal on points of law with ORG .

On DATE the public prosecutor requested that the house arrest be substituted with detention on remand , as the applicant had breached its conditions . He provided evidence that , amongst other things , she had been in contact with several unauthorised individuals including co - defendants in the ongoing criminal proceedings and a number of her “ followers ” and “ admirers ” .

On an unspecified date ORG ordered a new medical examination with a view to determining whether her state of health was compatible with detention .

On DATE the ORG granted the prosecutor ’s request and remanded the applicant in custody , ordering that she be transferred at once to the correctional hospital in GPE . It found that she had violated the terms of her house arrest , and that the situation which had arisen was conducive to her re - establishing the network which had supported her criminal activity . As to her health , the court drew on the medical report it had requested which stated that adequate monitoring and treatment of her medical conditions , as well as the provision of adequate nutrition in compliance with her special dietary needs , could be carried out in a correctional hospital . In particular , the expert noted that treatment of the applicant ’s osteoporosis to prevent future damage to her bone structure would not in any way be hindered by her detention in such a facility . He added that while under house arrest , she had experienced CARDINAL fractures , suggesting that the monitoring of her condition in a correctional hospital could be in no way considered inferior .

On DATE the GPE correctional hospital issued a medical certificate concerning the applicant ’s state of health . It described her medical history and the outcome of various specialist consultations she had undergone in the facility in DATE . An orthopaedic specialist had confirmed her advanced osteoporosis and prescribed treatment , a cardiologist had reported good cardiac function , while an ophthalmologist had recommended that she undergo surgery for a cataract in her left eye . The report further contained a recommendation that the applicant undergo a colonoscopy . Concerns were raised regarding the difficulties encountered in the management of treatment and diagnostic tests which had required transporting her to external facilities . Both her cataract surgery and the colonoscopy had to be rescheduled due to the unavailability of police officers who should have escorted her to the external facilities . The doctors concluded that the continued detention of the applicant , albeit in a correctional hospital , could have resulted in the deterioration in her health .

On DATE the applicant ’s counsel submitted a request to ORG , seeking the substitution of the detention on remand with house arrest . He reiterated all the arguments raised at first instance and referred to extracts from the report issued by the correctional hospital on DATE .

The request was granted on DATE and the applicant was placed under house arrest .

According to the material in the case file , she is currently under house arrest , as the criminal proceedings against her are pending before ORG .

Article CARDINAL provides that a person may be detained pending trial :

“ ( a ) NORP if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence and based on matters of fact which must , on pain of nullity , be expressly set out in the decision , which the judicial authority may take of its own motion ... ;

( b ) if the accused has absconded or there is a real danger of his absconding , provided that the court considers that , if convicted , he will be liable to a prison sentence of DATE ;

( c ) where , given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct , acts or criminal record , there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ... ”


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

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

The applicant was born in DATE . He died on DATE . Ms N. GPE , the applicant ’s grandmother , informed ORG her wish to pursue the proceedings on his behalf .

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

NORP In DATE and DATE the police opened CARDINAL criminal investigations into CARDINAL incidents of theft and an incident of robbery . On CARDINAL DATE these investigations were joined .

On DATE the police arrested the applicant on suspicion of robbery . He was held in custody on this basis until DATE , when he was placed under arrest on suspicion of theft .

On DATE the police lodged an application with ORG ( PERSON rajona tiesa ) for the applicant ’s pre - trial detention in relation to the theft investigation .

On DATE an investigating judge granted the application . With regard to the suspicion of theft , he reasoned as follows :

“ there are reasons to suspect that [ the applicant ] has committed the crime under section CARDINAL(CARDINAL ) of LAW ( PERSON ) [ theft ] ... These suspicions are confirmed by the evidence gathered in the criminal case . ”

On DATE the applicant appealed against that decision .

On DATE ORG ( ORG apgabaltiesa ) dismissed the appeal . With regard to the suspicion of theft , the judge stated :

“ The ... suspicion that [ the applicant ] has committed the crime ... is confirmed by the information contained in the file . ”

No appeal lay against the aforementioned decision .

On DATE the public prosecutor charged the applicant with robbery , theft , involving a minor in theft and petty theft on the basis of the facts as alleged .

On DATE the applicant familiarised himself with the case material .

On DATE the prosecutor transferred the case to ORG for adjudication . She set out the case against the applicant and detailed the evidence upon which the prosecution intended to rely .

On DATE the investigating judge decided to keep the applicant in detention . He gave the following reasoning :

“ the accusation against [ the applicant ] of the crimes under sections CARDINAL(CARDINAL ) [ theft ] , PERSON ) [ robbery ] , CARDINAL ) [ petty theft ] and CARDINAL [ involving a minor in theft ] of LAW ... is confirmed by the evidence gathered in the criminal case . ”

On DATE and DATE the applicant ’s detention was extended . The judge stated as follows :

“ [ the applicant ’s ] detention is based on the suspicion that he has committed the crime under section CARDINAL(CARDINAL ) of LAW [ theft ] ... in other criminal proceedings [ he ] has been declared a suspect in relation to crimes under sections CARDINAL(CARDINAL ) [ petty theft ] and PERSON ) [ robbery ] ...

There has been no change in the reasons noted in the detention order of DATE ... which had been re - examined in [ the subsequent decisions ] ... ”

On DATE , DATE and DATE , the applicant complained to ORG that it had failed to assess his detention in relation to the alleged robbery .

On DATE and DATE , and on DATE the judge decided to continue the applicant ’s detention , using largely the same wording as in the previous decisions . In addition , she noted that the CARDINAL period allowed by LAW ) of LAW GPE likums ) for detention had been observed because the applicant had also been accused of an especially serious offence , robbery , under section CARDINAL(CARDINAL ) of LAW .

The aforementioned decisions were not subject to appeal .


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

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

The applicants complained of the non - enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law .


Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

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 , a lawyer practising in PERSON .

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

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

The applicant was employed with the publicly owned ORG and Construction in GPE ( PERSON organizacija za održavanje cesta GPE ; hereinafter “ FAC ) . At a meeting of ORG of FAC held on DATE it was decided that CARDINAL of the CARDINAL flats which constituted the ORG “ road - workers’ house ” ( cestarska kuća u Tinjanu ) would be given to the applicant , “ since the flat was empty and PERSON did not have a flat ” . By an agreement of DATE , the applicant ’s employer granted him a specially protected tenancy ( stanarsko pravo ) for an indefinite duration for the flat at issue , which was publicly owned , and the applicant moved into the flat with his family . The relevant part of that agreement reads :

Drawn up between ORG and Construction in GPE ... represented by its director GPE and GPE from the PERSON roadworkers’ house as the holder of a specially protected tenancy ( hereinafter “ the tenant ” ) .

ORG in GPE ... on the basis of a decision of ORG ... of DATE allocates to PERSON from ORG a flat for official purposes in ... the Tinjan road - workers’ house on the ground floor .

The flat consists of CARDINAL rooms , a kitchen and a toilet and measures QUANTITY .

On the basis of the above - mentioned decision of ORG , this agreement fixes the rent at CARDINAL ...

This agreement is concluded for an indefinite period ... ”

On DATE ORG enacted ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) , which regulated the sale of publicly owned flats previously let under specially protected tenancies .

DATE Pula Road Maintenance was privatised and part of it became ORG while the other part became “ LOC ” ( ORG ) .

On an unspecified date the applicant asked NORP Roads , CARDINAL of the successors of his former employer and the owner of the flat occupied by the applicant , to conclude a contract for the sale of the flat between the owner as the seller and himself as the buyer . On DATE the owner declined his request on the grounds that the applicant had not acquired a specially protected tenancy on the flat at issue because it had been designated as a “ flat for official purposes ” .

On DATE the applicant brought a civil action in ORG ( PERSON ) seeking a judgment in lieu of the contract of sale . He argued that there was another flat in the same house , occupied by the PERSON family , and that neither flat had been allocated to employees performing road - maintenance functions . Moreover , those flats had never served any “ official purpose ” ; they were simply residential accommodation .

On DATE ORG accepted the applicant ’s claim and established that he had the right to a specially protected tenancy on the flat at issue .

NORP However , that judgment was quashed on DATE by ORG ( Županijski sud u GPE ) and the case was remitted to ORG .

On DATE ORG established that the applicant had not acquired a specially protected tenancy on the flat in question . The court found that , even though some of the flats in so - called “ road - workers’ houses ” had indeed been sold under LAW , the majority had not been sold . The court also established that the flat at issue had not been allocated to the applicant for any “ official purpose ” . However , it found that the flat had been given to him for temporary occupation only , until he could be allocated another flat .

NORP That judgment was upheld on DATE by ORG , which also established that the flat at issue had been designated for “ official purposes ” .

On DATE the applicant lodged an appeal on points of law ( revizija ) , to be decided by ORG . He lodged it with ORG , as required under LAW . It appears that it was not forwarded to ORG .

On DATE the applicant lodged a complaint about the length of the civil proceedings with ORG . On DATE ORG declared the complaint inadmissible on the grounds that the proceedings had ended on DATE .

NORP However , on DATE ORG instituted proceedings with a view to reinstating the applicant ’s submission of DATE . The applicant ’s appeal on points of law was subsequently forwarded to ORG , which dismissed it on DATE , fully endorsing the reasoning of the lower courts .

A subsequent constitutional complaint lodged by the applicant about the merits of the case was dismissed on DATE . It was served on the applicant ’s lawyer on DATE .

LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL and DATE ) , as in force at the material time , provided that in cases where a first - instance judgment had been upheld by that of the second - instance , it became res judicata when the second - instance court delivered its judgment . An appeal on points of law was regarded as an extraordinary remedy , that is , a remedy which could be lodged only against a res judicata judgment , and which did not , unless successful , affect the validity of that judgment .


CASE OF MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression;Freedom to impart information;Freedom to receive information);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

NORP The applicant political party has its registered seat in GPE .

On DATE a referendum related to ORG migrant relocation plan was held in GPE . The referendum was initiated by the Government and posed the following question : “ Do you want ORG to be entitled to order the mandatory settlement of non - NORP citizens in GPE without ORG ’s consent ? ”

In the course of the campaign several opposition parties called on voters to boycott the referendum or to cast invalid ballots that would not count in the final tally but could still be interpreted as rejecting the idea of the referendum . On DATE the applicant political party made available a mobile telephone application to voters ( “ the cast - an - invalid - vote app ” ) where they could upload , and share with the public , photographs taken of their ballots . It also enabled voters to comment on the reasons for how they cast their ballot . The posting and sharing of photographs were anonymous . The application was reported in major online journals .

On DATE a private individual lodged a complaint with ORG ( ORG ) about the application .

In a decision of CARDINAL DATE ORG found that the application infringed the principles of fairness of elections , voting secrecy , and the proper exercise of rights ( rendeltetésszerű joggyakorlás ) , and ordered the applicant organisation to refrain from further breaches of section CARDINAL ) and ( e ) of Act no . ORG of DATE on Electoral Procedure and Article CARDINAL ) of LAW . Relying on a previous resolution issued in DATE , it held that voters could not treat ballot papers as their own [ property ] , and therefore could neither take them out of the voting booths nor take a photograph of them . It held that taking photographs of ballot papers could lead to electoral fraud . Furthermore , although the principle of secrecy did not create any obligation on the voters’ side , it nevertheless did not entitle them to abuse their situation , bearing in mind that voting secrecy could only be maintained with their cooperation . ORG concluded that the phone application was capable of discrediting the work of election bodies and tallying systems in the eyes of the public .

The applicant sought judicial review of this decision before the GPE .

By a judgment of CARDINAL DATE the GPE upheld the ORG ’s decision as to its finding regarding the infringement of the principle of the proper exercise of rights . The GPE held that the purpose of the ballots had been to enable voters to express their opinion on the referendum question , and that taking photographs of ballots and subsequently publishing them had not been in line with this purpose . A ban on photographs and on publication had not infringed voters’ freedom of expression , since they had been free to express their opinions by casting their ballots and to share with others how they had voted . The PERSON overturned the remainder of the Commission ’s decision on the infringement of the secrecy of the electoral process and on the discrediting of the work of the electoral bodies . It found that there was no regulation prohibiting voters from taking photographs of their ballot papers in the voters’ booths and that their identity could not have been revealed through the mobile telephone application .

Meanwhile , on DATE the same private individual lodged a new complaint with ORG , in the light of the fact that the applicant political party had activated the “ cast - an - invalid - vote app ” on DATE , DATE of the referendum . The complainant maintained that by operating the mobile telephone application and by encouraging voters to make use of it , the applicant political party had infringed the principles governing the bona fide and proper exercise of rights , and also the principles of fairness and secrecy of elections .

In a decision of CARDINAL DATE ORG reiterated its previous finding that taking photographs of ballot papers had infringed the principle of the secrecy of voters’ ballots , the fairness of elections , and the proper exercise of rights , and fined the political party MONEY ( ORG – CARDINAL ( ORG ) ) . ORG supplemented its previous reasoning by noting that the mobile telephone application calling on voters to cast an invalid ballot could have influenced voters and had thus constituted unlawful campaigning .

The applicant political party sought judicial review of this decision as well .

By a decision of CARDINAL DATE the GPE upheld the ORG ’s decision as to the finding of an infringement of the principle of the proper exercise of rights . It explained that the purpose of the ballot papers had been for voters to express their opinion on the referendum question , and any other use of them had constituted a violation of the principle of the proper exercise of rights . The GPE overturned the remainder of the Commission ’s decision as to a violation of the fairness and voting secrecy and the principle of the bona fide exercise of rights . It reiterated its previous finding that the identity of the individual voters had not been revealed , and emphasised that the conduct of the applicant political party had had no impact on the fairness of the referendum . It reduced the fine to ORG CARDINAL ( approximately EUR CARDINAL ) .

NORP The applicant organisation lodged a constitutional complaint against the decisions of both CARDINAL and DATE . In both complaints the applicant requested ORG to “ establish that the GPE ’s decision infringed its right recognised in LAW . It argued that “ under LAW on ORG an organisation personally concerned by an unconstitutional judicial decision , after having exhausted all other remedies , may lodge a complaint with ORG if the decision on the merits infringed its right ensured by LAW . The decision of the GPE declared the applicant ’s conduct unlawful and obliged it to pay a fine , it was the applicant who lodged the petition for review with the GPE , thus it was individually concerned in the present case ... By making the mobile phone application available the applicant reacted to the spreading of social media communication . ORG regularly share events , thoughts and opinions on internet websites through photos taken with their mobile phones . In the context of elections , this led to the fact that all over the world , voters take photos of their ballot papers and share it through social media . By developing the mobile phone application the applicant wanted to enable voters to share photos of ballot papers ( or in case of those who absented from the referendum photos of the activities undertaken instead of voting ) and other messages in an anonymous way and exercise their right to freedom of expression in a way that the content of the vote could not be linked to the voter . ... In the applicant ’s view the impugned decision , its legal interpretation and the consequences applied by the PERSON infringe its right under LAW . The conduct of voters taking photos of ballot papers and sharing it with others is an expression of an opinion in public matters and constitutes a conduct falling under the freedom of expression of opinions , and in particular , the most protected aspect of it , a discussion on matters of public interest . Thus , the applicant ’s activity , providing a forum for voters to express an opinion is also protected by LAW In the applicant ’s opinion , the decision of the the GPE , by invoking voters’ right to freedom of expression , restrained in fact , the applicant ’s own conduct of exercising its right to freedom of expression without any constitutional reason . ” The applicant further submitted that , as established by the GPE , the mobile phone application had not infringed the secrecy and fairness of the voting procedure and it had also not been capable of doing so , since the content of the ballot papers could not be linked to the voters . Thus , it argued that these aims could not serve as a legitimate basis for restricting the right to freedom of expression . In any event , even if the application could have infringed the secrecy of voting , the ban on the application had been disproportionate .

ORG declared the complaints inadmissible on DATE , with identical reasoning , on the grounds that the cases did not concern the applicant organisation ’s right to freedom of expression . It reiterated the GPE ’s finding that although the case related to the freedom of expression of voters , this had not been infringed by the decision of ORG , which had only found that the method used – that is to say uploading photographs to a mobile application – had not been in compliance with the obligation to exercise voting rights in accordance with their purpose . In ORG view the applicant political party had merely provided a forum for voters to share photographs of their ballot papers or their intention to abstain from voting , it had did not itself expressed an opinion . Since the applicant political party had only complained about the restriction of voters’ right to freedom of expression , it had not been personally concerned by the decision of the GPE .


Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

On DATE the applicant and ORG , a commercial company incorporated under NORP law , signed a deed of acknowledgement of debt before a notary . Under the terms of the deed the applicant declared that he had borrowed MONEY ( ORG ) from ORG and undertook to repay that sum with interest by DATE . The document also contained choice of law and jurisdiction clauses according to which it was to be governed “ in all respects ” by NORP law and the NORP courts were to have non - exclusive jurisdiction to hear any disputes arising out of it .

In DATE ORG brought proceedings against the applicant in LOC ( PERSON , GPE ) , alleging that he had not repaid the above - mentioned debt and requesting that he be ordered to pay the debt together with interest .

NORP In an order of DATE ORG summoned the applicant to appear before it . Since the applicant was not resident in GPE , ORG made an ex parte application to the same court on DATE seeking a fresh order enabling a summons to be served on the applicant outside the country , requiring him to appear within DATE from the date of service . In that connection the claimant company ’s lawyer produced an affidavit declaring that the defendant was habitually resident at an address in FAC in GPE and that a summons could be served on him at that address . The applicant , for his part , contended that it had been objectively impossible for him to receive the summons at that address , which was simply the address at which he had signed the loan contract and the deed of acknowledgement of debt in DATE and was not his home or business LOC .

On DATE ORG ordered that the applicant be summoned at the above - mentioned address . It summoned him to appear or to come forward within DATE of receiving the summons , failing which all future announcements concerning the case would be posted on the court ’s noticeboard . An affidavit produced by an employee of the firm of lawyers representing ORG showed that , in accordance with the court order , the summons was sent by recorded delivery on DATE to the address in FAC in GPE . It also showed that the legal firm had received a post office slip confirming that the letter had been received by the applicant on DATE ( the NORP national holiday and therefore a non - working day in GPE ) . The applicant claimed never to have received the summons .

As the applicant did not appear , ORG , ruling in his absence on DATE , ordered him to pay the claimant CARDINAL or the equivalent in NORP pounds ( ORG ) , plus interest at an DATE rate of PERCENT of the aforementioned amount from DATE until payment of the debt . The applicant was also ordered to pay costs and expenses in a gross amount of ORG MONEY , plus interest at an DATE rate of PERCENT . According to the judgment , which was finalised on DATE , the applicant had been duly informed of the hearing but had not attended . The judgment itself made no reference to the fact that it was final or to the available remedies .

On DATE ORG applied to ORG ( PERSON pilsētas ORG priekšpilsētas tiesa , GPE ) seeking recognition and enforcement of the judgment of CARDINAL May CARDINAL . In its request the company also sought to have a protective measure applied . It stated that the applicant was the owner of real property in Garkalne ( a district of GPE ) which , according to the land register , was already mortgaged to a bank . Accordingly , fearing that the applicant might seek to evade enforcement of the judgment , it asked ORG to place a charge on the property and record it in the land register . Lastly , it requested that the applicant be ordered to pay the costs . In its request the company gave as the applicant ’s place of residence an address in Č. Street in GPE which differed from the address previously notified to the NORP court .

On DATE ORG adjourned examination of the company ’s request , pointing to a series of substantive defects which the company was given DATE to correct . In particular , the court noted that the company had omitted to explain why it had referred to the address in Č. Street , when the applicant ’s presumed address , as it had featured hitherto in the case , was in FAC .

On DATE ORG submitted a corrigendum in which it explained , among other points , that according to the data taken from the register of residents ( ORG reģistrs ) , the address in Č. Street was the applicant ’s officially declared home address . As to the address in FAC , the company ’s representatives had assumed it to be the applicant ’s actual residence .

In an order of CARDINAL DATE ORG ruled that the corrigendum submitted by ORG was insufficient to remedy all the defects in its request . The court declined to examine the request and sent it back to the company . The latter lodged an appeal with ORG ( PERSON apgabaltiesa ) , which set aside the impugned order on DATE and remitted the case to ORG , instructing it to examine the request for recognition and enforcement as rectified by the corrigendum of CARDINAL DATE .

In an order of CARDINAL DATE issued without the parties being present , ORG allowed ORG request in full . It ordered the recognition and enforcement of ORG judgment of CARDINAL DATE and the entry in the Garkalne municipal land register of a charge on the property owned by the applicant in that municipality . The applicant was also ordered to pay the costs .

It was not until DATE that the applicant learnt DATE by chance , according to his account – of the existence of both the NORP court judgment of CARDINAL DATE and the NORP court order of CARDINAL DATE . He did not attempt to challenge the NORP judgment before the NORP courts . However , he lodged a so - called ancillary appeal ( blakus sūdzība ) against the above - mentioned order with ORG , while asking ORG to extend the time allowed for lodging the appeal . In that connection the applicant observed that there was nothing in the case file to indicate that he had been summoned to appear at the hearing of DATE or that he had been notified of the order issued DATE . Accordingly , the DATE period laid down by LAW should start running on DATE , the date on which he had become aware of the order in question .

In an order of CARDINAL DATE ORG granted the applicant ’s request and extended the time - limit for lodging an appeal . It noted , inter alia , as follows :

“ ... It is clear from the court order of DATE that the issue of recognition and enforcement of the foreign judgment was determined in the absence of the parties , on the basis of the documents furnished by the claimant [ ORG ] . At the same time the order states that it is open to the applicant to appeal against it within DATE from the date of receipt of the copy [ of that order ] , in accordance with section CARDINAL(CARDINAL ) of LAW .

The court considers the circumstances to which the applicant , P. ORG , refers , to be established , namely the fact that he did not receive the order ... of DATE until DATE , this being attested to by the reference in the list of consultations [ appended to the case file ] , and by the fact that the order , served [ on the applicant ] by the court , was returned on DATE ... It is apparent from the documents appended to the appeal that the applicant has not lived at his declared address in [ Č. ] Street since DATE ; this confirms ... the statement made by his representative at the hearing , according to which the applicant no longer lives at the above - mentioned address .

Accordingly , the DATE period should ... run from the date on which the applicant received the order in question ...

At the same time , the court does not accept the view of the representative of [ ORG ] that the applicant himself is responsible for his failure to receive the correspondence because he did not declare his home address promptly , and that the time allowed [ for lodging an appeal ] should not therefore be extended . The fact of not complying with the legislation on registration of residence is not sufficient to justify the potential consequences if the court were to refuse to allow the applicant to exercise the fundamental rights guaranteed by the ORG as regards access to the courts and judicial protection , including the right to appeal against a decision . ... ”

In his grounds of appeal before ORG the applicant argued that the recognition and enforcement of the NORP judgment in GPE was in breach of ORG ( ORG ) No CARDINAL/CARDINAL of DATE on jurisdiction and the recognition and enforcement of judgments in civil and and commercial matters ( known as the “ GPE I Regulation ” , hereafter “ the Regulation ” ) and of the relevant provisions of ORG . He submitted CARDINAL arguments in that regard .

First , the applicant observed that in accordance with LAW corresponding in substance to section CARDINAL(CARDINAL ) , third subparagraph , of ORG ) , a judgment given in default in another Member ORG could not be recognised if the defendant was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence . In the applicant ’s view , those provisions had been breached in his case . The applicant maintained that both the NORP lawyers who had represented the claimant company in ORG and the NORP lawyers who had represented it in the NORP courts had been perfectly aware of his business address in GPE . He observed in that connection that he had had professional dealings with the NORP lawyers , who had telephoned him and sent faxes to his office ; as to the NORP lawyers , he had met them in person . Therefore , they must all have been aware of his business address . Furthermore , the summons could have been sent to the applicant ’s home address in PERSON , as he had a residence there that was officially declared in accordance with the law and his property there was entered under his name in the land register , which the lawyers could have consulted . However , instead of having the summons sent to one of those addresses , which were known and accessible , the lawyers had given the courts an address where it was objectively impossible to reach him .

Second , the applicant observed that , under the terms of LAW and section CARDINAL(CARDINAL ) , second sub - paragraph , of ORG , a judgment had to be enforceable in the ORG of origin in order to be enforceable in the Member ORG requested . In the instant case , there had been a threefold breach of those requirements . Firstly , the requesting party had only submitted the text of the NORP court judgment to the NORP court , and not the certificate required in accordance with ORG to the ORG . In that connection the applicant acknowledged that under LAW in which enforcement was sought could , in some circumstances , exempt the requesting party from the obligation to produce a certificate ; however , in the present case , ORG had omitted to explain whether and for what reason it considered that the requesting party could be exempted from that obligation . Secondly , the NORP judgment itself had contained no reference to its entry into force or possible remedies . Lastly , in order to be enforced in accordance with the ORG , a judgment had to be enforceable in the country of origin ; however , none of the documents produced by the company demonstrated that the judgment of CARDINAL May CARDINAL was enforceable in GPE . The applicant therefore concluded that the judgment could under no circumstances be recognised and enforced in GPE .

In a judgment of DATE ORG allowed the applicant ’s appeal on the merits , quashed the impugned order and rejected the request for recognition and enforcement of the NORP judgment .

F.H. Ltd. lodged an appeal against that judgment with the ORG of ORG , which examined it at a hearing on DATE . At the start of the hearing the appellant company submitted copies of several documents to the ORG , including the certificate provided for by LAW and by ORG thereto , dated DATE and signed by an acting judge of ORG . According to the certificate , the document instituting the proceedings had been served on the applicant on DATE . The last part of the certificate , intended for the name of the person against whom the judgment was enforceable , had been left blank . When asked to comment on these documents , the applicant ’s lawyer argued that they were clearly insufficient to render the judgment enforceable .

In a final judgment of DATE the ORG quashed and annulled ORG judgment of DATE and allowed ORG claims . It ordered the recognition and enforcement of the NORP judgment and the entry in the land register of a charge on the applicant ’s property in Garkalne . The relevant extracts from the judgment read as follows :

“ ... It is clear from the documents in the case file that the GPE ORG judgment was made final . This is confirmed by the explanations provided by both parties at ORG hearing on DATE , according to which no appeal had been lodged against the judgment , and by the certificate issued on DATE ... As [ the applicant ] did not appeal against the judgment , his lawyer ’s submissions to the effect that [ he ] was not duly notified of the examination of the case by a foreign court are of no importance .

Having regard to the foregoing , the ORG accepts that the judgment of ORG ( GPE ) of CARDINAL DATE should be recognised and enforced in GPE .

Article CARDINAL of the ORG provides that a foreign judgment may under no circumstances be reviewed as to its substance ; in accordance with section CARDINAL(CARDINAL ) of LAW , once such judgments have been recognised they are to be enforced in accordance with the conditions laid down by the same PERSON . ... ”

On the basis of the ORG judgment ORG issued a writ of execution ( izpildu raksts ) on DATE . The applicant complied immediately with the terms of the writ and paid the bailiff employed by the claimant company a total of CARDINAL NORP lati ( ORG , MONEY ( ORG ) ) , comprising ORG for the principal debt and ORG in enforcement costs . He then requested that the charge on his property in Garkalne be lifted . In CARDINAL orders dated DATE the judge with responsibility for land registers ( PERSON nodaļas tiesnesis ) refused the request . The applicant lodged an appeal on points of law with the ORG of ORG which , in an order of DATE , lifted the charge on the property .


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

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

The applicant was born in DATE and lives in ORG .

On DATE the GPE public prosecutor ’s office ( DATE hereinafter , “ the prosecutor ’s office ” ) requested ORG ( PERSON für DATE hereinafter , “ the Regional Court ” ) to institute criminal proceedings against the applicant . The prosecutor ’s office sought to obtain information about the outcome of criminal proceedings against the applicant in GPE , where he had been charged with aggravated fraud in his function as director of the CARDINAL investment fund and the NORP capital management company . Among the injured parties there were also NORP banks . The criminal proceedings against the applicant in GPE were suspended in accordance with LAW ( hereinafter , the “ ORG ” ) pending the outcome of the proceedings in GPE .

On DATE the applicant was convicted of bond fraud by the New York Southern District Court in GPE . However , he subsequently absconded and did not appear at the court hearing in which his sentence was to be determined . On DATE GPE issued an arrest warrant against the applicant .

On DATE ORG opened a judicial investigation ( GPE ) against the applicant and issued an arrest warrant .

On DATE the applicant was arrested in GPE on the basis of the arrest warrant of CARDINAL DATE ( see paragraph CARDINAL above ) and subsequently placed in pre - trial detention .

On DATE , CARDINAL DATE and DATE the applicant filed complaints against the continuation of the pre - trial detention . While the first CARDINAL complaints were withdrawn by the applicant , the third was dismissed by ORG ( Oberlandesgericht ) on DATE . The applicant unsuccessfully requested his release also on DATE , CARDINAL DATE and DATE . The applicant ’s complaints against the continuation of his pre - trial detention lodged on DATE , DATE and on DATE were dismissed by ORG on DATE , DATE and DATE .

On DATE the applicant submitted a statement of facts to the authorities , presenting his view of the situation .

On DATE , DATE and DATE the applicant applied to be granted access to his case - file . On an unspecified date ORG dismissed his requests .

On DATE the case file was transferred to the prosecutor ’s office for further investigation .

On DATE and DATE the applicant filed submissions with ORG . Among other things , he declared that he was willing to give a statement concerning the accusations against him . On DATE ORG rejected his requests on formal grounds .

On DATE the applicant lodged a complaint relating to his fundamental rights ( Grundrechtsbeschwerde ) with ORG ( Oberster Gerichtshof ) , which was dismissed on DATE .

On DATE the applicant lodged an objection because of alleged violations of his rights ( Einspruch wegen Rechtsverletzung ) and again applied to be granted access to his case - file . On DATE ORG dismissed the objection .

On DATE , CARDINAL DATE and DATE the applicant lodged further objections because of alleged violations of his rights . On DATE ORG dismissed all of them . The applicant appealed against this decision .

On DATE ORG dismissed the objection of DATE , but granted the CARDINAL objections of DATE and CARDINAL DATE , holding that the refusal to grant the applicant access to his case file and to provide him with copies thereof constituted a violation of his rights .

On DATE the applicant filed another complaint against the continuation of his pre - trial detention . On DATE ORG dismissed this complaint .

On DATE the prosecutor ’s office informed the applicant about the intended appointment of expert PERSON

On DATE the applicant objected to this appointment , stating that PERSON would not have the necessary knowledge to deal with the case and could possibly be biased as she was cooperating with the companies involved in the alleged fraud .

On DATE the expert PERSON was nonetheless appointed to provide an opinion relating to the applicant ’s businesses .

On DATE the applicant lodged another complaint relating to his fundamental rights with ORG . On DATE his complaint was dismissed by ORG .

On DATE he unsuccessfully lodged another request to be released . On DATE the applicant again requested his release from pre - trial detention .

On DATE the applicant was released from pre - trial detention . He alleged that he had not even once been questioned in relation to the accusations against him during the entire time he spent in pre - trial detention , even though he had tried to contribute to the clarification of the facts by submitting statements as well as requests for the taking of evidence .

On DATE the applicant lodged another objection because of an alleged violation of his rights , arguing that the expert PERSON had close connections with potential victims and was therefore biased . On DATE ORG granted this objection .

On DATE the applicant filed an application for the discontinuation of the criminal proceedings against him . He argued that he had already been tried and sentenced in GPE for the same offences . Moreover , according to the laws in force at the time and place of the commission of the offences , the latter had become time - barred . On DATE ORG dismissed the application . On DATE ORG dismissed the applicant ’s appeal , holding that even though it was difficult to clarify the facts of the case after DATE , the applicant had significantly contributed to the length of the investigations by having absconded .

On DATE a new expert , W .- A. , was appointed to provide an opinion . The applicant again objected to the expert and complained about the length of the pre - trial investigations . On CARDINAL DATE ORG granted the objection concerning the expert , but dismissed the applicant ’s complaint concerning the length of the proceedings , holding that it had been proportionate to the complexity of the case . Further , it held that the main reason for their length was that the applicant had filed a large number of objections and appeals . Hence , the duration of the proceedings was not in violation of LAW .

On DATE the prosecutor ’s office informed the applicant that it intended to appoint a new expert , B. The applicant objected , alleging that B. had close relations with investors who could potentially have sustained damages because of his activities . On DATE B. was nonetheless appointed by the prosecutor ’s office and given a deadline of DATE to provide the opinion . The applicant ’s objection was dismissed by ORG on DATE . On DATE ORG rejected the applicant ’s appeal as being lodged out of time .

On DATE the applicant lodged an objection because of an alleged violation of his rights , repeating his arguments that the expert PERSON was not impartial . He further argued that PERSON had significantly exceeded the time - limit for providing his opinion . On DATE ORG granted the objection , holding that the prosecutor ’s office had not adequately reacted to the exceeding of the time - limit by the expert , who should have been discharged as a consequence . It therefore found that the applicant ’s right to have the proceedings conducted within a reasonable time was violated .

On DATE the expert B. was discharged and on CARDINAL DATE another expert , PERSON , was appointed .

On DATE the prosecutor ’s office submitted an indictment against the applicant on suspicion of embezzlement and aggravated fraud on a commercial basis . On an unspecified date , the applicant ’s appeal against the indictment was rejected by ORG . Therefore , it has become legally binding .

At the date of the latest information available to ORG ( DATE ) , the criminal proceedings against the applicant were still pending at first instance .


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

In a judgment of DATE , ORG ( rechtbank ) convicted the applicant of the transportation of QUANTITY grams of heroin and of CARDINAL counts of people trafficking ( mensensmokkel ) as defined in Article CARDINALa of LAW ( GPE ) , committed jointly with other perpetrators . It sentenced him to a partially suspended term of CARDINAL months’ imprisonment .

Both the applicant and the prosecution appealed against ORG judgment .

On DATE ORG ( gerechtshof ) gave its judgment , upholding the conviction for the offence of transporting heroin and also of CARDINAL counts of people trafficking , and acquitting him on the CARDINAL other counts . It sentenced him to CARDINAL months’ imprisonment less the time spent in pre - trial detention . Based on the evidence submitted , ORG found established that the applicant and his co - perpetrators had , for purposes of financial gain , DATE and DATE facilitated the unauthorised residence of a total of CARDINAL NORP migrants in the GPE , GPE and GPE .

The applicant lodged an appeal in cassation ( cassatie ) , the scope of which is limited to procedural conformity and points of law , with ORG ( PERSON ) . In his written grounds of appeal of CARDINAL DATE , the applicant raised , inter alia , a complaint regarding the CARDINAL counts of people trafficking of which he had been convicted by ORG . The applicant contended that ORG had convicted him of facilitation of unauthorised “ residence ” , as defined in Article LAW , whereas the evidence relied on by ORG to uphold that conviction did not prove that the NORP migrants had had “ residence ” in the GPE , GPE or GPE . Instead , the evidence demonstrated that the applicant had organised and financed the NORP migrants’ transportation to GPE via the GPE and GPE , which had been intercepted on each occasion in GPE . As the ORG stay in the GPE and GPE had only been brief and transitory , and given that they had never even entered GPE , there was , according to the applicant , no proof of “ residence ” in those countries . In that regard , the applicant referred to ORG law , namely ORG Directive CARDINAL of DATE defining the facilitation of unauthorised entry , transit and residence ( hereinafter “ the Directive ” ) and LAW of DATE on the strengthening of the penal framework to prevent the facilitation of unauthorised entry , transit and residence ( hereinafter “ the LAW ” ) . Submitting that Article CARDINALa of the Criminal Code had been amended in order to implement the Directive , the applicant argued that the notion of the facilitation of unauthorised “ residence ” within the meaning of Article CARDINALa § CARDINAL should be understood as entailing a long - term stay , to be distinguished from “ transit ” or “ entry ” as defined in the first paragraph of Article PERSON , which had been added to Article PERSON when the Directive was implemented . The applicant ’s grounds of appeal in cassation did not include a request that ORG put a question to the ORG for the purpose of obtaining a preliminary ruling .

NORP In his advisory opinion of DATE , the Advocate General ( advocaat - generaal ) to ORG expressed his view that the applicant ’s appeal should be dismissed with the exception of the first of the grounds of the appeal , which pertained to the length of the proceedings : the duration of the cassation proceedings had exceeded a reasonable time within the meaning of LAW , for which a reduction of sentence was to be applied . With regard to the applicant ’s complaint that the evidence did not show that there had been any “ residence ” of the migrants in the countries at issue , ORG was of the opinion that Article LAW called for a broad interpretation of “ residence ” , as had been the case prior to the implementation of the Directive and LAW . Since that implementation was intended to broaden the scope of LANGUAGE of LAW , the second paragraph of that provision retained its broad meaning of “ residence ” , thereby encompassing “ transit ” . The separate penalisation in the first paragraph of Article PERSON of the facilitation of unauthorised “ transit and entry ” did not change the broad scope of paragraph CARDINAL . The Advocate General thus concluded that the applicant ’s complaint in this matter should be dismissed .

On DATE , the applicant submitted written comments in reply to the Advocate General ’s advisory opinion ( a so - called “ PERSON letter ” ) in which he made a tentative request for questions to be referred to the ORG for a preliminary ruling about the interpretation of “ residence ” , “ entry ” and “ transit ” within the context of the Directive and whether the Directive contained minimum rules or constituted a general framework of terms , if ORG were to concur with ORG .

On DATE ORG gave its judgment , which read :

“ [ the applicant ’s counsel ] have submitted written grounds of appeal . That document is annexed to this judgment , of which it is a component part .

The Advocate General [ ... ] has advised that the impugned judgment be quashed − but only as regards the prison sentence imposed , reducing it due to the violation of the right to adjudication within a reasonable time − and that the remainder of the appeal be dismissed .

Counsel [ for the applicant ] have submitted a written reply . ”

ORG went on to hold that the applicant ’s complaint that the cassation proceedings had exceeded a reasonable time within the meaning of Article CARDINAL § CARDINAL of the Convention was well - founded and that the sentence imposed on the applicant should be reduced as a consequence thereof . ORG further considered :

“ CARDINAL . Assessment of the remaining grievances

The grievances can not lead to cassation [ of the impugned judgment ] ( de middelen kunnen niet to cassatie leiden ) . Based on LAW ( CARDINAL ) of ORG ( Wet op de rechterlijke organisatie ) , this requires no further reasoning as the grievances do not give rise to the need for a determination of legal issues in the interests of legal uniformity or legal development . ”

ORG thus quashed ORG judgment as regards the imposed sentence , reduced the sentence to CARDINAL months’ imprisonment , and dismissed the remainder of the grounds of appeal . No further appeal lay against ORG judgment .


CASE OF VASILEVSKIY AND BOGDANOV v. RUSSIA

Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

Mr Vasilevskiy was born in DATE and lives in GPE .

Mr Vasilevskiy stayed in detention for longer that he should have because the sentencing courts did not count the time he had spent in pre - trial detention towards the overall duration of his sentence , in breach of the applicable domestic provisions . In response to Mr Vasilevskiy ’s repeated complaints , on CARDINAL DATE the GPE ORG in LOC corrected the error and acknowledged that his sentence had expired on DATE . Mr Vasilevskiy was released on DATE . He sought compensation for DATE during which he had been wrongfully detained .

On DATE the ORG in LOC awarded him MONEY ( RUB – QUANTITY ( ORG ) at the then - applicable exchange rate ) in respect of non - pecuniary damage . Mr Vasilevskiy lodged an appeal , submitting in particular that that sum was substantially lower than that which the ORG would have awarded in a similar case .

On DATE ORG dismissed his appeal . As regards the level of compensation , it held that ORG had “ had regard to the case - law of ORG but had correctly determined the amount of compensation in respect of non - pecuniary damage in the light of the requirements of NORP law ” .

Mr PERSON was born in DATE and lives in LOC .

On DATE Mr PERSON was convicted of supplying drugs on CARDINAL separate occasions in DATE and sentenced to CARDINAL years’ imprisonment . On DATE ORG of GPE acknowledged , referring to the ORG ’s case - law under LAW , that the police had incited Mr PERSON to commit the last three of the QUANTITY offences . It declared that part of evidence inadmissible , voided his conviction in that part , reduced his sentence to CARDINAL years’ imprisonment and ordered his immediate release .

By that time , Mr PERSON had spent DATE in custody over and above the adjusted DATE sentence . He sought to recover damages in respect of his wrongful imprisonment .

On DATE ORG in GPE awarded him RUB CARDINAL ( EUR CARDINAL ) . However , on DATE the ORG reduced the award to RUB CARDINAL ( EUR CARDINAL ) , referring to the “ circumstances in which the criminal proceedings had been instituted ” and the “ category of offence that Mr PERSON had been charged with ” . On DATE ORG rejected a cassation appeal lodged by PERSON PERSON .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Civil proceedings;Right to a fair trial;Article 6-1 - Reasonable time)

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

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law . In application no . MONEY , the applicant also raised other complaints under the provisions of the Convention .


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The first applicant was born in DATE and lives in GPE ) . The second and third applicants were born in DATE and DATE respectively and apparently live with their mother in GPE ( GPE ) or somewhere nearby .

NORP In DATE the first applicant ’s then wife , whom he had married in DATE and who is the mother of the second and third applicants , took the second and third applicants from GPE , where the family was living , to GPE .

In DATE the first applicant travelled to GPE . The family was supposed to return to GPE but the first applicant ’s wife refused to leave and the first applicant returned to GPE alone .

NORP In DATE the first applicant joined his family in GPE for DATE and his wife again refused to return to GPE with him and kept the children with her .

In DATE the first applicant wrote to his wife requesting that she return to GPE with their daughters .

On DATE the first applicant asked ORG to initiate proceedings for the return of the children to GPE . On DATE he also instigated proceedings before ORG ) for separation from his wife and the return of his daughters to GPE .

On DATE his wife started parallel divorce proceedings before ORG .

On DATE , the applicants lodged a complaint before ORG alleging a violation of LAW ( ORG ) no . DATE concerning GPE and ORG ( “ LAW ” ) , which is still pending .

NORP In DATE the marriage between the first applicant and his ex - wife was annulled ( see paragraph CARDINAL below ) . As at the date of introduction of the present application , the first applicant had been unable to see his daughters since DATE .

On DATE the Pest Central District Court found that the first applicant ’s ex - wife was keeping the children in GPE illegally , in violation of LAW ( “ LAW ” ) . However , it considered that given their young age , the children needed to be cared for by their mother and therefore refused to order their return to GPE .

On DATE ORG quashed the decision of ORG and ordered that the children be returned to GPE by DATE at the latest , but this failed to happen .

An enforcement order was issued against the first applicant ’s ex - wife by ORG on DATE and upheld by ORG on DATE . The decision was not enforced .

On DATE the ORG ordered the enforcement of the decision of DATE , this time with the assistance of the police . Again , the decision was not enforced .

On DATE , following the issue of a NORP arrest warrant by the NORP authorities , the first applicant ’s ex - wife was arrested by the NORP police but was released shortly thereafter with no progress having been made regarding a possible return of the second and third applicants to GPE .

On DATE , she was sentenced in absentia by the Buda ORG to a DATE fine for illegally changing the custody of a minor .

On DATE the headmaster of ORG , located in GPE , initiated proceedings before the LOC district guardianship authority to bring the second and third applicants under its protection .

On an unspecified date , the first applicant and his ex - wife reached an agreement pursuant to which the second and third applicants would remain with their mother in GPE but would be able to visit the first applicant in GPE several times per year . In the light of that agreement , on DATE the first applicant requested the suspension of the enforcement proceedings against his ex - wife , and ORG duly suspended the proceedings until DATE .

On DATE , the first applicant withdrew his enforcement request .

Following a proposal drafted by the competent ORG ( ORG Szociális PERSON ) ‒ which was of the view that the children were no longer in danger ‒ the ORG discontinued the enforcement proceedings .

On DATE , ORG granted exclusive custody of the children to the first applicant .

On DATE , the first applicant pressed criminal charges against his ex - wife for child abduction .

On an unknown date ORG sentenced the ex - wife to CARDINAL months’ imprisonment , suspended .

The marriage between the first applicant and his ex - wife was annulled by the ecclesiastical tribunal of the GPE region , whose decision was granted exequatur by ORG on DATE .

On DATE , following an appeal by the prosecutor , ORG sentenced the applicant ’s ex - wife to CARDINAL months’ imprisonment , suspended .

The first applicant ’s ex - wife appealed against her conviction before ORG . DATE before the hearing the first applicant withdrew his criminal suit in the hope of appeasing the situation and allowing his ex - wife to travel freely to GPE with their QUANTITY daughters .

On DATE ORG quashed the judgment of ORG in the light of the first applicant ’s decision to withdraw his criminal suit .