Remainder inadmissible (Article 35-3 - Manifestly ill-founded;Ratione personae);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

He is currently on trial in criminal proceedings instituted on DATE for an attempt to take a bribe , together with PERSON and FAC At the time the applicant was the head of a division in ORG ( NORP policijas birojs ) in ORG in GPE ( PERSON galvenā policijas pārvalde ) .

According to the applicant , during his trial before the appellate court , he learned that an operational investigation ( operatīvās uzskaites lieta ) had been opened in respect of his co - defendant GPE

According to the ORG , on DATE the operational investigation had been opened on the basis of information provided by a private person . On DATE the relevant authority , ORG ( GPE novēršanas un apkarošanas birojs – the “ ORG ” ) , had informed the prosecutor ’s office about this . On DATE , a ORG judge had authorised the interception of GPE ’s telephone conversations and the prosecutor ’s office had authorised an undercover operation ( operatīvais eksperiments ) . On DATE the Head of the ORG had authorised the interception of PERSON ’s telephone conversations on the basis of section CARDINAL(CARDINAL ) of the Law on Operational Activities , and they included conversations with the applicant . On DATE the ORG had informed the prosecutor ’s office about the operational measures under the same provision . The Government did not adduce any evidence in this connection .

On DATE a judge of ORG of ORG ( PERSON tiesas GPE tiesu palāta ) , in the context of the criminal proceedings against the applicant , requested information about the operational investigation .

On DATE a specialised prosecutor , having examined the material in accordance with section CARDINAL ) of the Law on Operational Activities , replied that the operational investigation had been opened on DATE . In respect of the applicant , no interception of telephone conversations had been carried out in the context of that operational investigation . However , she noted that “ his conversations were recorded if he was speaking to [ a person ] , whose conversations were intercepted in accordance with the LAW ” . According to the applicant , he learned about this information during the appellate court hearing on DATE .

On DATE the applicant requested the prosecution authorities to review the lawfulness of the operational measures which had been carried out and asked specific questions concerning these measures .

On DATE the specialised prosecutor replied , among other things , that on DATE an undercover operation had been approved on the basis of section CARDINAL ) of the Law on Operational Activities in the context of the operational investigation to record the manner in which the sworn attorney GPE would proceed upon receipt of CARDINAL NORP lati ( ORG ) , to be handed over to the officials of the economic crime police , to find out whether he would continue arranging for a bribe and to ascertain his possible accomplices . She also noted that the domestic law did not provide for independent judicial supervision of operational activities ; such supervision was carried out by ORG and specially authorised prosecutors in accordance with section CARDINAL(CARDINAL ) of the Law on Operational Activities . Finally , she noted that the operational investigation measures in respect of the applicant and his co - defendants had not been illegal and that there had been no breaches of the general principles governing operational activities contained in section CARDINAL of that PERSON .

On DATE the applicant lodged a complaint about the specialised prosecutor ’s reply .

On DATE a higher - ranking specialised prosecutor rejected the applicant ’s complaint . She referred to section CARDINAL(CARDINAL ) and section CARDINAL of the Law on Operational Activities . By reference to section CARDINAL(CARDINAL ) the prosecutor also explained that the authorities had learned during the interception of telephone conversations of GPE that an offence was being planned for DATE the act of arranging for and taking a bribe DATE which would also involve officials from ORG . In order to prevent further participation of officials in corruption - related offences , a decision was taken to intercept the telephone conversations of PERSON on the basis of section CARDINAL(CARDINAL ) of the Law on Operational Activities . The competence of the prosecution authorities did not include examination of whether that or other provisions were compatible with LAW ; these issues could be determined by ORG .

The applicant lodged a further complaint with ORG , which was rejected by a final decision of CARDINAL DATE . With reference to sections CARDINAL(CARDINAL ) and CARDINAL ) of the Law on Operational Activities , it was reiterated that no breaches of that PERSON had been found .

On DATE the applicant lodged an individual constitutional complaint with ORG ( PERSON tiesa ) . He alleged that ( i ) section CARDINAL(CARDINAL ) of LAW was incompatible with LAW ( protection of human rights ) and CARDINAL ( right to private life ) of the LAW ( PERSON ) and also with ORG CARDINAL and CARDINAL of the LAW , and ( ii ) the first and second sentence of section CARDINAL(CARDINAL ) of the Law on Operational Activities were incompatible with LAW and the first sentence of DATE ( right to a fair trial ) of the LAW and also with LAW and LAW .

On DATE the ORG initiated proceedings in case no . DATE with regard to the compatibility of section CARDINAL(CARDINAL ) of the Law on Operational Activities with LAW and the compatibility of the first sentence of section CARDINAL(CARDINAL ) of that PERSON with LAW alone . ORG rejected the remainder of the applicant ’s complaint .

On DATE a judge dismissed the applicant ’s request , among other things , to see the case materials , since it was contrary to the procedure laid down in the PERSON on ORG . It was for the judge to take the necessary steps to prepare a case for adjudication ( lietas sagatavošana izskatīšanai ) in accordance with section CARDINAL of the PERSON on ORG . He also referred to section GPE ) , section CARDINAL and CARDINAL ) of the PERSON on ORG ( see paragraphs CARDINAL below ) to explain that the parties were entitled to see the case materials after the decision concerning adjudication had been taken and that it was for the judge to decide which institutions or officials were to be requested to submit additional information or documents .

On DATE the judge dismissed the applicant ’s request to see the written submissions filed by ORG ) in the proceedings on the grounds that such request had already been dismissed given that these submissions formed part of the case materials .

On DATE the applicant requested permission to see at least the judge ’s preliminary opinion ( atzinums par lietas sagatavošanu izskatīšanai ) before the preparation of the case was completed and before the preparatory meeting had taken place . The applicant sought the possibility of expressing his opinion on the proceedings and , in particular , on whether or not the case could be decided by means of an oral procedure , which was his preference .

On DATE the President of ORG replied to the applicant that the parties could see the case materials only after the decision concerning adjudication had been taken . That decision had been taken on DATE . Consequently , the applicant could see the case material . As regards the possibility of the proceedings being conducted orally or in accordance with a written procedure , he explained that this issue was to be determined by ORG in accordance with section CARDINAL(CARDINAL)-(CARDINAL ) of the PERSON on ORG . This issue was first to be considered by the relevant judge , then by the President of ORG and , subsequently , by all other judges in the preparatory meeting . The parties could express their opinion on this matter after they had seen the case materials .

On DATE the applicant filed an opinion with ORG and noted , among other things , that the case could not be decided through a written procedure and that an oral hearing should be held . He admitted that the written procedure before LAW as such did not infringe his rights to be heard , but submitted that it had to be examined in each particular case and that the court was not allowed to reject a request in connection with the gathering of evidence without examining its necessity , significance or procedural legal grounds .

On DATE , in a closed preparatory meeting , ORG examined the case materials and found that the documents contained therein were sufficient for the purposes of examining the case by means of a written procedure ( sections CARDINAL(CARDINAL ) and CARDINAL of the PERSON on ORG ) . On DATE the applicant was informed about this decision and was given DATE to see the case materials and to give his opinion in connection with them ( section CARDINAL ) of the PERSON on ORG ) . The applicant used this possibility .

On CARDINAL DATE the Constitutional Court delivered its ruling in case no . DATE and held that the contested legal provisions complied with LAW and the Convention . The relevant part reads as follows :


No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

The applicant was recruited on a DATE fixed - term contract , from DATE to DATE , extended for DATE from DATE to DATE , as a contracted employee of the hospital civil service , to carry out the duties of a social assistant in the psychiatric unit of ORG ( “ CASH ” ) a public health establishment administered by GPE .

On DATE the Director of ORG informed the applicant that her contract would not be renewed with effect from DATE . The reason given for the decision DATE which had been taken following complaints by certain patients being treated at FAC was that the applicant refused to stop wearing her head covering .

On DATE , in response to a letter from the applicant alleging the illegality of the refusal to renew her contract in that it was motivated by her convictions and her affiliation to the NORP faith , the Director of ORG indicated that at the meeting of CARDINAL DATE which had preceded the administration ’s decision , she had not been criticised for her religious beliefs , but merely reminded of the rights and duties of public employees , namely the ban on manifesting such beliefs . He continued :

“ I emphasised that I had been required to have a meeting with you following complaints made to PERSON , manager of the welfare and education unit , both by patients who were refusing to meet you on account of this display [ of your beliefs ] and by social assistants for whom it was becoming increasingly difficult to operate in this very delicate situation . It should be noted that PERSON raised these difficulties with you and tried to persuade you not to manifest your religious beliefs , even before the complaints reached the ORG . Indeed , it was only shortly before the meeting with you on DATE that the unit managers were officially informed of the problem created by the fact of your head covering .

With regard to your head covering at the time of recruitment : as you are aware , the recruitment interview lasts , at the most , TIME . Individuals attend wearing ordinary “ street ” clothes , and do not necessarily have to remove their coats or scarves . The fact that your head was covered during that interview was not interpreted as a possible sign of [ religious ] affiliation , but simply as a form of attire .

The termination of your contract has a legal basis , and does not result from a discriminatory situation . ”

The Director of ORG further reminded the applicant in this letter of the ORG issued by the ORG d’État on DATE . That ORG stated that the principle of freedom of conscience , the principle of ORG secularism and the principle that all public services must be neutral prevented employees in the public sector from enjoying the right to manifest their religious beliefs ; lastly , it pointed out that the wearing of a symbol intended to indicate their religious affiliation constituted a breach by employees of their obligations ( see paragraph CARDINAL below ) .

By an application registered on DATE , the applicant asked ORG to set aside the decision of DATE .

By letters of CARDINAL and DATE , the applicant was informed of the decision of ORG at the CASH to include her on the list of candidates for a recruitment test for social assistants and to permit her to take part . This decision was taken on the basis of the decree of CARDINAL DATE granting special status to social assistants employed by ORG hospitals . That text stated that the social assistant ’s task was to assist patients and their families who were experiencing difficulties in their dealings with the social services , by helping to draw up and implement the relevant programme in the establishment to which they were attached and also other social and educational programmes , in coordination , inter alia , with other institutions or the social services . The applicant did not take part in the recruitment test .

By a judgment of DATE , ORG held that the decision not to renew the contract had been compatible with the principles of secularism and the neutrality of public services :

“ ... In view of PERSON no . CARDINAL - CARDINAL of CARDINAL DATE [ laying down the rights and duties of civil servants , see paragraph CARDINAL below ] ...

Although civil - service employees , like all citizens , enjoy the freedom of conscience and of religion laid down in the constitutional , legislative and convention texts , which prohibit any discrimination based on their religious beliefs or their atheism , particularly in terms of access to positions , career progress and the disciplinary system , the principles of the secular nature of the ORG and the bodies to which its powers are delegated and of neutrality in public services preclude those employees , in the exercise of their duties , from being entitled to manifest their religious belief , especially through external sartorial expression ; this principle , which is intended to protect the users of the service from any risk of influence or of interference with their own freedom of conscience , concerns all public services and not only the education service ; this obligation must be applied with particular stringency in those public services where the users are in a fragile or dependent state ; ... ”

It dismissed the applicant ’s action , pointing out that the decision not to renew her contract had been taken on account of her refusal to remove her veil “ following complaints submitted by certain patients in the care centre and in spite of repeated warnings by her line managers and friendly advice from her colleagues ” . The court considered that on the basis of the above - mentioned principles concerning the expression of religious opinions within the public services , the administrative authorities had not committed an error of assessment in refusing to renew the contract on the implied grounds of her wearing of “ attire manifesting , in an ostensible manner , allegiance to a religion ” . It concluded “ thus , even though the applicant ’s employer tolerated the wearing of this veil for DATE and [ her ] conduct can not be considered as deliberately provocative or proselytising , the hospital has not acted illegally in deciding not to renew the contract following her refusal to stop wearing the veil . ”

By a judgment of DATE , ORG held that the contested decision was disciplinary in nature , in that “ it transpires from both the letter of DATE from the ORG ’s Director of ORG and the hospital ’s defence pleadings that [ the decision ] was taken on account of [ the applicant ’s ] persistence in wearing a veil for religious reasons during TIME ... ” . It therefore quashed the decision on procedural grounds , given that the applicant had not been informed of the reasons for the envisaged measure prior to its adoption , nor given an opportunity to consult her case file .

In execution of the court of appeal ’s judgment , the Director of the CASH invited the applicant to inspect the case file . By a reasoned judgment of CARDINAL DATE , he confirmed that her contract would not be renewed :

“ As a result of the judgment of ORG dated DATE , which held that the non - renewal of your fixed - term contract which expired on DATE had been disciplinary in nature , we invited you again to inspect your administrative file on DATE , in order to bring the procedure into line with the regulations .

As required in execution of the same judicial decision , we hereby inform you that the disciplinary basis for the non - renewal of your contract is your refusal to remove your veil , in that it ostensibly manifests your religious affiliation .

In application of the principles of the secular nature of the ORG and the neutrality of public services , which underlie the duty of discretion imposed on every ORG employee , even those employed under contract , your refusal to remove your head covering when carrying out your duties effectively amounts to a breach of your obligations , thus exposing you to a legitimate disciplinary sanction , as the ORG d’État held , with regard to the principle , in its Opinion concerning PERSON , dated DATE .

Our decision not to renew the contract is all the more justified in the present case in that you were required to be in contact with patients when carrying out your duties . ”

By a letter of DATE , the administrative court of appeal informed the applicant that the CASH had taken the measures required by the judgment of CARDINAL DATE . It advised her that where a decision was set aside on procedural grounds , the administrative body could legally take new decisions that were identical to those that had been set aside , provided that they complied with the relevant procedure , and that the new decision of CARDINAL DATE could be challenged before the administrative court .

NORP In DATE the applicant asked ORG to set aside the decision of CARDINAL DATE . She argued , in particular , that the Conseil d’État ’s Opinion of CARDINAL DATE , relied upon by her employer , was intended to apply only to teachers .

By a judgment of CARDINAL DATE , the court dismissed her request , basing its decision on the principles of ORG secularism and the neutrality of public services :

“ ... However , while the PERSON d’État ’s LAW DATE specifically concerns the case of an employee in the public education service , it also clearly states that the constitutional and legislative texts show that the principles of freedom of conscience , ORG secularism and the neutrality of public services apply to the public services in their entirety ; although civil - service employees , like all citizens , enjoy the freedom of conscience and of religion laid down in the constitutional , legislative and convention texts , which prohibit any discrimination based on their religious beliefs or their atheism , particularly with regard to access to positions , career progress and also the disciplinary system , the principles of the secular nature of the ORG and the bodies to which its powers are delegated and of neutrality in public services preclude those employees , in the exercise of their duties , from being entitled to manifest their religious belief , especially through external sartorial expression ; this principle is intended to protect the users of the service from any risk of influence being exerted or of interference with their own freedom of conscience .

In view of the above - mentioned principles concerning the manifestation of religious opinions within the public service , the administrative body did not act illegally in refusing to renew the [ applicant ’s ] contract on the implied grounds of her wearing attire manifesting , in an ostensible manner , allegiance to a religion . ”

The applicant lodged an appeal against that judgment .

By a judgment of CARDINAL DATE , ORG upheld the judgment , reiterating the reasons given by the lower courts .

The applicant appealed on points of law to the ORG d’État . In her submissions , she emphasised that the administrative court of appeal had deprived its judgment of any legal basis in that it had failed to specify the nature of the item of attire worn by her which had justified the sanction . She referred to the disproportionate nature of that sanction , and alleged that it had been incompatible with LAW .

By a judgment of CARDINAL DATE , the ORG d’État declared the appeal inadmissible .


András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

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

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

On DATE the applicant was employed as an electrical technician by the GPE office of a multinational company , F.

According to a report issued on DATE , the general assembly of ORG ( Sindicatul Liber Solectron – “ the union ” ) , formed by CARDINAL of F. ’s employees , organised elections for executive positions ( funcțiile de conducere ) at the union . According to the same report , the auditing committee was listed among the union ’s executive functions and the applicant was elected as a member of that committee .

On DATE PERSON gave the applicant notice that he would be dismissed .

On DATE the union applied to the Timişoara ORG for authorisation for the changes made on DATE in the composition of the union ’s executive bodies ( organe de conducere ) . F. was not a party to the proceedings .

On DATE the Timişoara ORG allowed the union ’s application and ordered the registration of the changes in the composition of the union ’s executive bodies in the Special Register for Unions , held at the aforementioned court ’s registry .

On DATE the applicant was dismissed . The reason given in the dismissal decision , which was issued on the same date , was that the company had faced financial difficulties following a severe drop in client orders , which had forced it to reorganise and reduce its activities , to downsize and to remove CARDINAL posts , including the applicant ’s . The dismissal decision noted that the applicant was given the opportunity to apply for a position that had not been removed , but did not take up that opportunity . The dismissal decision also took account of the criteria established by the collective agreement concerning the order of priority in respect of dismissals and the fact that no other posts suitable for his professional qualifications or other posts in general had been available within the company .

On DATE the applicant challenged the dismissal decision before the domestic courts and asked to be reinstated . He argued , inter alia , that on the dates that the dismissal notice and decision had been issued by the company he had already been an elected member of the union ’s auditing committee and had therefore been occupying an elected position within the union . He stated that according to LAW the company was not allowed to fire him while he held such a position . He further stated that he had been dismissed because on DATE he had brought court proceedings for a salary increase and award of seniority bonuses and because as a union member he had caused problems for the company ’s management in claiming his lawful rights .

F. defended itself by arguing that the applicant ’s dismissal had been the result of a large downsizing process which had started in DATE and had been due to end in DATE . Moreover , the dismissal had been lawful and had not breached the provisions of the collective agreement or GPE .

On DATE ORG allowed the applicant ’s claim , quashed the dismissal decision and ordered his reinstatement . It noted that the report of the meeting of CARDINAL DATE had shown that the union had considered the auditing committee to be CARDINAL of its executive bodies and that the applicant had been elected as a member of that committee . The court considered that even if it had accepted the company ’s argument that the auditing committee had not been part of the union ’s executive functions and that therefore the conditions set out by LAW had not been met , the dismissal decision had still been unlawful because the provisions of LAW ) applied . The conclusion that at the time of his dismissal the applicant had been occupying an elected position in a union body ( even if not an executive one , as LAW ) did not make the same distinction as LAW ) had become reasonable and even mandatory , given that he had been elected to the union ’s auditing committee . Consequently , the dismissal decision had breached LAW ) , given that that provision represented a legal safeguard against potential pressure on those occupying elected positions within the union from exercising their mandate . However , relying on the evidence before it , the court accepted PERSON ’s argument that the selection of the staff affected by the downsizing process had been made by consulting with the trade union and by complying with the established criteria , in particular the level of professional performance and the order of priority set out in the collective agreement and LAW .

F. appealed on points of law ( recurs ) against the judgment . It argued that the applicant ’s dismissal had been lawful and justified by the company ’s difficult financial situation .

The applicant reiterated the arguments raised before the firstinstance court .

By a final judgment of DATE , ORG allowed ORG ’s appeal on points of law , quashed the judgment of the firstinstance court and dismissed the applicant ’s challenge to the decision to dismiss him . It held that Articles CARDINAL , CARDINAL of Law no . CARDINAL/CARDINAL concerned the protection enjoyed by representatives elected to a trade union ’s executive bodies . The complimentary ( complementare ) provisions of LAW concerned the same issues , while LAW ) prohibited dismissals during the exercise of the powers of an elected position . The collective agreement had also provided protection for representatives elected to the union ’s executive bodies . Consequently , the court considered that it had been necessary to determine which of the union ’s bodies were executive and whether the post of auditor had been an elected position .

NORP In that connection , the court considered that Articles CARDINAL and subsequent of PERSON no . CARDINAL/CARDINAL provided that executive bodies were formed by elected union members . Moreover , the notion of an auditor and the functions of the auditing committee were regulated by LAW no . CARDINAL/CARDINAL , which provided that the aforementioned committee operated according to the union ’s constitution . Furthermore , according to the union ’s constitution its executive bodies were the general assembly , the council and the permanent bureau . The union ’s constitution also set out that the composition of the auditing committee was decided by the council and that its area of competence was approved by the general assembly .

The court held that according to the aforementioned legal provisions , taken together with the provisions of the union ’s constitution , the auditing committee was neither an executive nor an elected body . While it was true that the applicant had been elected as an auditor , such a form of appointment had exceeded the provisions of the union ’s constitution , which provided for the appointment of auditors by the council . In addition , the post of auditor could not have been an executive position because those positions had been clearly established by the union ’s constitution .

The court also held that the provisions of LAW ) of LAW had to be read in light of the provisions of LAW of the same code and ORG CARDINAL of Law no . CARDINAL/CARDINAL . According to the aforementioned provisions , only workers occupying executive positions within the union enjoyed the protection claimed by the applicant . Consequently , the first - instance court had wrongfully held that the applicant ’s dismissal had been unlawful .

Lastly , the court considered that it was unnecessary to examine the remaining aspects of the lawfulness of the decision in the context of PERSON ’s appeal on points of law .

The relevant provisions of LAW in force at the material time read as follows :

“ ( CARDINAL ) Employees may not be dismissed :

( h ) while they hold an elected position within a union body , except in circumstances where the dismissal is ordered for serious or repeated disciplinary misconduct by those employees ; ...

( CARDINAL ) The provisions of the first paragraph do not apply if the dismissal was ordered for reasons flowing from the employer ’s judicial reorganisation or bankruptcy , according to law . ”

“ ( ORG elected to a trade union ’s executive bodies shall benefit from the protection of the law against any form of conditions , constraints or limitations in exercising their function .

( CARDINAL ) During their mandate and for DATE after their mandate has ended , representatives elected to a trade union ’s executive bodies can not be dismissed for reasons which do not concern the employee ’s person , for professional inadequacy , or for reasons connected to the exercise of a mandate received from other employees in the company .

( CARDINAL ) Other measures for the protection of representatives elected to a union ’s executive body are provided in special laws and the applicable collective agreement . ”

NORP The relevant provisions of Law no . CARDINAL/CARDINAL on trade unions in force at the material time read as follows :

“ Trade unions’ constitutions shall contain provisions with regard to :

( e ) their executive bodies , name , method of election and removal , length of mandate and duties ... ”

“ Members of a trade union with full legal capacity and who have not been prohibited as a complementary punishment from holding a position or practising a profession of the nature used by the sentenced person to commit the offence may be elected to executive bodies . ”

“ The members of a trade union ’s elected executive bodies shall benefit from the protection of the law against any conditions , constraints or limitations on exercising their function . ”

“ ( CARDINAL ) During their mandate , and for DATE after their mandate has ended , representatives elected to a trade union ’s executive bodies can not have their work contracts terminated or changed for reasons not imputable to them , which the law leaves at the discretion of the employer , except with the written agreement of the elected executive collective body of the trade union .

( CARDINAL ) A change or termination of the individual work contract of representatives elected to a trade union ’s executive bodies and of their members at the employer ’s initiative for reasons which concern the trade union ’s activities are prohibited .

( CARDINAL ) The provisions of the first paragraph do not apply to those who have been removed from executive positions held within the union for breaching the provisions of the [ union ’s ] constitution or the law ... “

“ ( CARDINAL ) Reviews of a trade union ’s own financial activities and of their social and financial units is carried out by ORG , which operates according to the constitution ... ”

The relevant provisions of ORG constitution in force at the material time read as follows :

“ The trade union ’s organisational structure includes : ORG , ORG , ORG and ORG . ”

“ ORG is the trade union ’s highest executive body ... ”

“ The activities of ORG are organised and run by ORG . ”

“ ORG has the following duties : ... approves the competences and the report of ORG ... ”

“ ORG Council is the trade union ’s executive body which has decision - making and deliberative character and decides on the measures needed to enforce the resolutions and decisions adopted by ORG ... ”

“ ORG has the following duties : ... decides on the composition of ORG and any changes to it ... ”

“ ( CARDINAL ) ORG is the permanent executive body which carries out the operational management of the trade union and enforces the decisions of ORG and of ORG ... ”

“ ORG is the financial control body of the trade union ’s economic and financial activities ... ”


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

The applicants , Mr PERSON , Mr PERSON , Mr Vangjel PERSON , PERSON and Mr PERSON , are NORP nationals who were born in DATE and live in GPE . They were represented by PERSON , a lawyer practising in NORP and GPE .

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

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

The applicants are originally from GPE , a town located on the south - west coast of GPE . They say they belong to the NORP - speaking minority . The fifth applicant was the president of a minority association , called ORG , in GPE ( “ the association ” ) . He also published the periodical ORG , ( “ the newspaper ” ) , the association ’s journal . The newspaper was apparently distributed to GPE living in GPE . The first applicant was a board member of the association .

It is apparent from the case file that the DATE issue of the newspaper urged GPE living in GPE to organise themselves to cast their votes in the DATE local government elections in GPE . The newspaper ran headlines and articles which were the subject of domestic legal proceedings in GPE , as set out in paragraphs QUANTITY below .

On DATE local government elections for city councils and mayors were conducted in GPE and elsewhere in GPE . It was reported that a number of incidents occurred on polling day , including in GPE .

In TIME of DATE , following reported irregularities , the applicants protested in front of ORG . They carried NORP flags and shouted pro - NORP slogans , demonstrating their support for CARDINAL of the candidates .

It would appear that on DATE the applicants left GPE for GPE , where they are currently living .

DATE and DATE the prosecutor ’s office opened a criminal investigation against the applicants on charges of incitement to national hatred ( thirrja për urrejtje nacionale ) and denigration of the Republic and its symbols ( poshtërimi i NORP dhe i simboleve të saj ) under ORG CARDINAL and CARDINAL of LAW ( “ the ORG ” ) . According to records of the search for the people involved of DATE , which were submitted by the Government as part of their observations , it is apparent that the authorities tried unsuccessfully to find the applicants .

On DATE the ORG ( “ the ORG ” ) made an order in absentia for the applicants to be remanded in custody . The measure was notified to the lawyer in the case , appointed by the court of its own motion .

On DATE ORG declared the applicants to be fugitives , in accordance with LAW .

On DATE the prosecutor in the case notified the ORG court - appointed lawyers of the charges against them . On DATE , the prosecutor committed the applicants for trial in absentia .

The first hearings , which had been due on DATE , and DATE , DATE and DATE , were adjourned by the trial court in order to allow the applicants to attend the proceedings . However , owing to their continued absence the court continued the trial in absentia .

On DATE ORG found the applicants guilty of the charges and sentenced CARDINAL of them in absentia to CARDINAL GPE imprisonment . The fourth applicant was sentenced in absentia to DATE and CARDINAL months’ imprisonment .

It would appear that on an unspecified date the applicants became aware of ORG decision because on DATE all of them authorised a lawyer to represent them in appeal proceedings .

NORP The applicants’ lawyer lodged an application for leave to appeal out of time , which was granted by ORG on DATE .

Following the appeal lodged by the ORG lawyer , that the trial proceedings had been conducted in absentia , on DATE ORG ( “ the Court of Appeal ” ) quashed the judgment of DATE on the grounds of procedural irregularities and remitted the case for fresh examination by a different bench of ORG .

On DATE , following an appeal by the prosecutor , ORG upheld ORG judgment .

On DATE ORG resumed the proceedings . On DATE ORG ordered that the applicants be informed of the judicial proceedings against them by posting a public notice .

According to the Government , hearings scheduled for DATE , and DATE and DATE were adjourned in order to allow the applicants’ to attend the re - trial .

On DATE the prosecutor confirmed that the applicants’ whereabouts could not be established .

On DATE ORG declared the applicants to be fugitives , in accordance with LAW and continued with the trial in absentia .

Hearings due on DATE , DATE and DATE were adjourned on the grounds that witnesses needed to be summoned for questioning , that CARDINAL of the judges had to be transferred to another court and that a judge had to be absent for health reasons .

The applicants remained absent from the re - trial proceedings and on DATE ORG found them guilty of the charges and sentenced each of them in absentia to CARDINAL GPE imprisonment . It found that by making anti - NORP statements the applicants’ actions had been capable of inciting national hatred , as proscribed by LAW . The court further held that the applicants had publicly denigrated GPE and its constitutional order , proscribed by LAW , as a result of not paying due respect to the NORP flag and national anthem while displaying the NORP flag and singing the NORP national anthem ; by writing press articles and issuing publications which portrayed PERSON as NORP territory ; and by refusing to recognise any government other than that of GPE .

The court examined a videotape of the applicants making public statements on DATE . The second and third applicants , Mr Koço Llazari and Mr PERSON , had publicly shouted , “ ORG ” and “ GPE ORG ” , while sticking their tongues out and showing their middle fingers . The third applicant had addressed a crowd of people in NORP from a podium while displaying a cross that he was wearing around his neck . The fourth applicant , PERSON , had wrapped herself in a NORP flag which she had been carrying with her . The third and fourth applicants had taken out other small NORP flags and waved them . CARDINAL photographs showing the applicants carrying out the actions mentioned above had also been obtained as evidence .

The court also examined the DATE issue of the newspaper . CARDINAL of its front page headlines read :

“ Fervently and in unison . The response of PERSON for its own rights . Vote with dignity and not subserviently ! What you failed to accomplish , GPE , you may finish now . ”

The above headline topped an article which called on GPE “ to be united against communism in GPE , which has been persecuting them since DATE and continues [ to do so ] even DATE ” .

Furthermore , the front page of the newspaper contained an announcement that buses were being made available for anyone wishing to cast their votes in PERSON during the local government elections of CARDINAL DATE .

Another article , on page CARDINAL , by a certain PERSON , had the following headline : “ The battle for Hellenisation starts in GPE . ” The court decision quoted the following excerpts from the article :

“ These elections are the best way to achieve ORG ... The battle of all battles will be waged in GPE . The [ united ] forces of GPE who proclaim their Hellenisation will be tested in PERSON so that it can be recognised as a NORP town , so that it can have a NORP school and enjoy all the rights that other minorities have in LOC . ORG who is absent from that battle has no right and is CARDINAL NORP . ... The vote is the only option for those who declare themselves to be NORP and to fight against those who profess to be ‘ ORG or , even worse , ‘ ORG ( këto zgjedhje janë më të duhurat për DATE e vorioepirotëve ... ORG betejave do të jetë në ORG , në ORG maten forcat e FAC që deklarojnë PERSON e tyre dhe që PERSON zone me kombësi greke , të ketë shkollë greke dhe të ketë të gjithë të drejtat që kanë në PERSON minoritetet . PERSON që do të mungojë në këtë luftim , nuk ka asnjë të drejtë dhe është shumë pak për grek ... PERSON është rruga e vetme për ata që deklarojnë grek dhe japin betejën e tyre kundrejt atyre që deklarojne ‘ spocialiste’ apo më e keqj ‘ himariotë’ ) ” .

PERSON is NORP and this needs to be demonstrated . I think that the sacrifice demanded from ORG is not too great . PERSON will win , PERSON will win . ”

The court also relied on the statements of witnesses and police officers who were on duty on DATE and who confirmed that the applicants had made such statements in public and that they had stirred up the crowd , which had led to a disruption of public order and the vote - counting process .

The decision reads , in so far as relevant , as follows :

“ ORG and FAC , through their active criminal acts as stated in their article in the PERSON newspaper , whose publisher is ORG GPE , are the principal organisers of the criminal acts that took place in GPE during the voting in the local elections on DATE . They are the main organisers of the protest that occurred on DATE because they : published articles in the nationalist , chauvinist PERSON newspaper DATE of polling day ; called on GPE to unite ; stated that PERSON is NORP , that they are NORP and that this is the battle of battles , that a war should be waged for Hellenisation and not ORG , that PERSON should fight in order to proclaim their Hellenisation so that PERSON could be recognised as NORP territory ; stated in the newspaper that GPE should be spared from this war or , otherwise , they could not lay claim to be called NORP ; stated in their publication that this is a war of Hellenisation against communism , against ORG , against socialists ... and NORP ... ; informed , organised and secured the transportation of Himariote immigrants already living in GPE to GPE ; incited them through their words and statements in favour of PERSON ’s secession from GPE ; carried out criminal acts to incite national hatred against the NORP population , ORG ; and incited people to use violence and other arbitrary acts against the population , police officers and commissioners .

Defendants ORG and ORG actively participated in the protest of DATE in front of the GPE building . [ They ] incited the crowd to use violence and carry out other arbitrary acts which endangered public order and peace . [ As a result ] a policeman who was on duty at a polling station in GPE was injured ; pressure was exerted upon other citizens who were casting their votes ; PERSON ’s central street was blocked ; an explosion in GPE occurred and attacks on polling stations and commissioners took place .

As regards defendants PERSON , PERSON and PERSON , the court considers that after examining the transcript of the examination of the videotape , the photographs as well as the ORG statements , they [ the defendants ] , through the use of slogans , such as “ GPE is ORG ” , “ GPE is NORP ” , “ This is NORP land ” , “ NORP away from GPE , “ GPE did not subdue us , let alone GPE ” , “ We shall remove NORP from PERSON , “ We shall remove foreigners from PERSON , were in charge of the protest which took place in front of the Himara municipality building during the voting process in PERSON and during the vote counting process , [ and ] were the main perpetrators of criminal acts . As a result of the slogans chanted before the crowd , they incited national hatred against the rest of the population ... Their actions endangered public order and peace . [ As a result ] a policeman who was on duty at a polling station in GPE was injured ; pressure was exerted upon other citizens who were casting their votes ; PERSON ’s central street was blocked ; an explosion in GPE occurred and attacks on polling stations and commissioners took place .

Defendants Vangjel Kolila [ who went to every polling station and held meetings ] , PERSON [ who held speeches ] and PERSON [ who held the NORP flag , with all of them handing out small flags and calling on people to embrace the NORP flag ] played a decisive role in inciting the protesters to chant slogans of a nature that promoted national hatred and the carrying out of violent and arbitrary acts against the population . [ Such ] actions jeopardised public order and peace .

Defendants ORG and ORG through the publication of the PERSON newspaper and the use of statements such as “ GPE are GPE ” , “ PERSON is NORP ” , “ Hellenisation versus Albanianisation ” ... have denigrated GPE and its constitutional order .

Defendants PERSON , PERSON and PERSON , by waving and raising the NORP flag and stating that this [ land ] is part of GPE and not GPE , by singing the NORP anthem and showing disrespect for the NORP flag , anthem , police and institutions ... in the presence of a huge crowd of people , have publicly denigrated GPE , its constitutional order , flag and anthem . ”

In imposing its sentence , the court took into account the limits on penalties provided for in ORG CARDINAL and CARDINAL of the ORG , the fact that the offences had been committed in collusion and in public , the applicants’ criminal responsibility and degree of guilt , as well as the need to try and prevent that kind of criminal activity in GPE . The court dismissed the arguments of the applicants’ lawyer that their actions should have been classified as minor offences ( kundërvajtje penale ) , in accordance with LAW . It held that their acts , namely their calls to national hatred , their violence and other arbitrary acts against the population and the law - enforcement authorities , their denigration of GPE , its constitutional order , flag and anthem fell to be considered under the ORG and did not give rise to the application of ORG .

On DATE and DATE the applicants appealed to ORG and ORG , respectively . Relying on LAW , the applicants sought to have their acts for participation in unlawful protest classified as minor offences and their imprisonment commuted to a fine . They also contested the ORG statements as being unreliable .

On DATE ORG put out a public summons for the applicants .

On DATE ORG dismissed the appeal . The court stated that the evidence contained in the case file , such as the videotape , demonstrated that all the applicants had actively participated in the unlawful protest by chanting slogans against GPE , pushing away law - enforcement officers , waving and distributing NORP flags or sticking their tongues out and showing their middle fingers . The contents of the PERSON newspaper constituted additional corroborating evidence of the commission of the offence by the applicants . Witness testimony corroborated that they had uttered slogans and made various calls , which had been in NORP , as also evidenced by the recorded material .

The Court of Appeal further stated that conducting an unlawful ( i paligjshëm ) protest during the local elections DATE a direct exercise of sovereignty by citizens – in front of the building which housed the institution that provided for the good conduct of such an important political activity , had struck at social relationships which had been established to secure equality , public peace and order . It had also struck at the inviolability of the Republic , its constitutional order , symbols , anthem and crest , as protected by criminal legislation . The ORG acts had not only consisted of the use of symbols or signs that incited violence or discrimination within the meaning of LAW . Their calls and slogans and the publication of the newspaper had also aimed at inciting hatred against that part of GPE ’s population which did not identify itself as being of NORP origin . They had caused problems relating to the maintenance of public order , to the denigration of ORG authority and to defiance of the constitutional order , national flag and anthem . As such , they had come within the ambit of ORG CARDINAL and CARDINAL of the ORG .

On DATE ORG , in a reasoned decision , dismissed the ORG appeals . It considered that the lower courts had made a correct classification of the applicants’ criminal acts under ORG CARDINAL and CARDINAL of the ORG and that their conviction had been based on the evidence contained in the case file .

In a dissenting opinion , Judge PERSON expressed the view that the applicants’ acts should have been examined as minor offences which had led to the disruption of public order , under LAW , which would have resulted in a fine .

The relevant Articles of the LAW read as follows :

“ CARDINAL . Sovereignty in GPE belongs to the people .

NORP The people exercise sovereignty through their representatives or directly .

“ The independence of the state and the integrity of its territory , the dignity of the individual , human rights and freedoms , social justice , the constitutional order , pluralism , national identity and inheritance , religious coexistence , as well as coexistence with , and understanding of NORP for , minorities are the bases of the ORG , which has the duty to respect and protect them . ”

“ CARDINAL . Limitations of the rights and freedoms provided for in this LAW may be established only by law , in the public interest or for the protection of the rights of others . A limitation shall be in proportion to the situation that has dictated it .

These limitations may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in LAW . ”

“ CARDINAL . Freedom of expression is guaranteed .

The freedom of the press ... is guaranteed .

Prior censorship of means of communication is prohibited . ”

“ CARDINAL . The right to information is guaranteed . ”

“ In the protection of his constitutional and legal rights , freedoms and interests , or in defending a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law ” .

“ CARDINAL . ORG The freedom to have peaceful meetings , without arms , and to participate in them is guaranteed .

Peaceful meetings in squares and places of public passage are held in accordance with procedures provided by law . ”

NORP The relevant provisions of the FAC read as follows :

“ It is the duty of the criminal law of GPE to protect the independence of the ORG and its territorial integrity , human dignity , fundamental rights and freedoms , the constitutional order , property , the environment , the coexistence and good understanding of NORP with national minorities as well as religious coexistence from criminal offences , and to prevent such offences .

“ Endangering public order by inciting national hatred against other sections of the population , by insulting or defaming them , or by requesting the use of force or arbitrary actions against them , may result in a fine or a term of DATE imprisonment . ”

“ Denigration of GPE and [ its ] constitutional order , flag , emblem , national anthem or martyrs of the nation , voiced publicly or through the publication or distribution of written material , or the removal , damage or destruction of the flag or emblem of GPE wherever displayed by official institutions , or making either of them indistinct or unusable , constitutes a minor offence ( kundërvajtje penale ) and is liable to a fine or CARDINAL years’ imprisonment . ”

The Act sets down rules on holding a peaceful assembly and participating in such an assembly . That freedom can be restricted on certain defined grounds such as national security , public security , the prevention of disorder or crime , the protection of health or morals or the protection of rights and freedoms of others ( section CARDINAL ) . Before any assembly may be held in public squares or on thoroughfares ( sheshe ose vendkalime publike ) , the organisers are obliged to notify the chief of police in writing , DATE prior to the day of the assembly ( section CARDINAL ) . When there are serious grounds to believe that an assembly will constitute a real risk to national security , public security , the prevention of crime , or the protection of the health , rights and freedoms of others and there are no less stringent measures available , then the chief of police may ban the assembly or decide when and where it may be held ( section CARDINAL) . Participation in a banned assembly constitutes a minor offence and can lead to a fine ( section CARDINAL ) .

Section CARDINAL provides for the dispersal of an assembly by the police on certain defined grounds . Failure to respect police orders constitutes a minor offence and can lead to a fine ( section CARDINAL ) .

It is prohibited to possess firearms and conceal one ’s identity which incites discrimination or violence on racial , ethnic or religious grounds ( section CARDINAL - CARDINAL ) . Section CARDINAL further provides that in assemblies held in squares or places of public passages or in places open to the public , the use of uniforms , signs or symbols that refer to associations or groups that have been created to incite discrimination or violence on racial , ethnic or religious grounds is prohibited . The use of clothing , objects , signs or symbols to conceal one ’s identity or incite violence or discrimination as provided for under sections CARDINAL constitutes a minor offence and is punishable by a fine or a term of imprisonment DATE ( section CARDINAL ) .

Article CARDINAL of LAW , as in force at the material time , provides for the maintenance of public order in polling stations ( ruajtja e rendit në qendrën e votimit ) . When there is a risk of disruption of public order and the conduct of elections , ORG ( GPE i FAC së GPE ) may decide to suspend the elections and seek the assistance of the police . The request must be submitted in writing and should contain a brief description of the facts and reasons for the intervention of the police .

International monitoring bodies , such as ORG ( “ the ORG ” ) and ORG ( “ ORG ” ) , monitored the local elections in GPE in DATE and DATE .


S.C. I.F.N. COMAUTOSPORT LEASING S.A. v. ROMANIA

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

NORP The applicant , ORG , is a NORP company , whose registered office is in PERSON . It was represented before the Court by PERSON , a lawyer practising in PERSON .

On DATE the applicant company concluded a vehicle leasing agreement with a third party , the private company ORG ( the lessee ) , managed by GPE

NORP The contract stated , inter alia , that DATE instalments were to be paid to the applicant company until DATE , when the property right concerning the vehicle was to be transferred to the lessee , ORG The contract further stipulated that the lessee was not allowed to use the vehicle for transporting merchandise , unless the lessor had given his or her prior written approval thereto . The contract also stated that the failure of the lessee to pay CARDINAL successive instalments could entitle the lessor to ask for the termination of contract ( reziliere ) , in accordance with the general principles of contract law .

On DATE the ORG squad caught PERSON , who was driving the leased vehicle , transporting QUANTITY of alcohol , without having the appropriate excise stamp or documentation concerning their provenience . The authorities issued a contravention report , sanctioning GPE to a fine of CARDINAL ORG . They also confiscated the vehicle , in accordance with the provisions of LAW . The report mentioned that the vehicle belonged to the applicant company and was leased to the company ORG

NORP The report was contested by the applicant company . It complained that the vehicle , which was its property , was confiscated from its owner even if it had not participated to and had not had any knowledge about the commission of the act sanctioned by the fiscal authorities . The applicant also mentioned that following the confiscation , the lessee ceased to pay the agreed instalments . It argued that the circumstances constituted a deprivation of property without appropriate compensation .

On DATE ORG dismissed the applicant company ’s complaint , mentioning that the sanction was in accordance with the law , namely LAW . Noting that the applicant company had concluded a leasing agreement with the company ORG , the court considered that all issues referring to alleged breaches of contract were to be dealt with under the contract responsibility law , and not within the framework of the fiscal procedure , which was meant to determine the lawfulness of the contravention report .

The applicant appealed , without addressing ORG arguments referring to the remedy allegedly offered by the contract law .

ORG dismissed the appeal on DATE , finding that the lower court ’s judgment was lawful and well - founded . ORG further held that LAW imposed the sanction of confiscation of the vehicle used for committing a contravention , without differentiating between the owner or the user of the vehicle subject to confiscation .

The domestic legal provisions and practice of ORG relevant for the present case are set out in detail in the case of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Tribunal established by law)

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

The applicant is a limited liability company registered under NORP law , with its seat in GPE .

In a dispute concerning a construction project envisaged in public procurement , in DATE the applicant company brought an action in damages against a university .

NORP The President of the territorially competent ORG requested ORG ( “ LOC ” ) to reassign the case to another court of the same jurisdictional level . In the request the President provided particulars about the case to be reassigned and indicated the data and the circumstances which prevented the adjudication , within a reasonable time , of this case , deemed to be of high importance , by relying on , in particular , the case - load of judges hearing civil cases , significantly exceeding the national average .

NORP The President of the LOC examined the case - load statistics of ORG , including the volume of highly important and priority cases and the workload of judges hearing civil cases . She found that , in view of the short statutory time - limits , the adjudication of the case within a reasonable time could only be ensured by reassigning the case to another court .

By requesting information from the President of ORG , the President of the ORG also examined the case - load and the operational conditions , including staff and facilities , of ORG of ORG . On the basis of this information , the President of the ORG was satisfied that the reassignment of the case to ORG would not impose a disproportionate burden on that court .

For the sake of judicial economy as appreciated above , on DATE the President of the LOC case assigned the case to ORG ( decision no . CARDINAL . ( II.CARDINAL . ) OBHE ) , acting within the powers conferred upon her by the law .

The Zalaegerszeg High Court heard the case and dismissed the claim on DATE . That decision was confirmed by ORG on DATE , a ruling served on CARDINAL October CARDINAL . The latter ’s territorial competence to hear the appeal was a consequence of the case having been assigned to ORG .

Meanwhile , on CARDINAL DATE ORG issued decision no . CARDINAL/CARDINAL on “ the guidelines to be observed in respect of case reassignment ” .

On DATE the GPE upheld the decisions of ORG and ORG in review proceedings .

The courts held in essence that the applicant company ’s perception according to which the university had unlawfully backed out of the investment contract ( namely , the construction of a dormitory ) was nothing more than a misconception of the law and a tendentious interpretation of the circumstances , and that the facts of the case did not reveal any compensation liability on the respondent ’s side , for want of unlawfulness .

Meanwhile , on DATE the applicant filed a constitutional complaint . It counted DATE and complied with – the statutory DATE time - limit to do so from the service of the final decision in the case , i.e. from CARDINAL DATE . It claimed firstly that the domestic courts had reached their decisions in an arbitrary manner and , secondly , that it was deprived of a “ tribunal established by law ” , since by decision no . CARDINAL . ( II.CARDINAL . ) OBHE the President of the ORG had reassigned the case from the originally competent court to ORG .

NORP The constitutional complaint was declared inadmissible on DATE ( decision no . DATE . ( ORG . CARDINAL . ) AB ) . ORG held that the case as a whole did not reveal any arbitrariness or unfairness as such . As regards the specific complaint about the reassignment , it held that this issue was severable from the main procedure . It was of the view that the DATE statutory time - limit had run , in that respect , from the very reassignment decision of QUANTITY DATE rather than from DATE as construed by the applicant DATE and for that reason this part of the motion was time - barred .

On DATE ORG adopted decision no . DATE . ( XII.CARDINAL . ) AB in the matter of reassignment , in pursuit of constitutional complaints originating in cases other than that of the applicant . It held that the regulations which entitled the President of the ORG to reassign cases among courts ( notably , sections CARDINAL and DATE of Act no . ORG of DATE on ORG , as in force DATE and DATE , see paragraph CARDINAL below ) had been unconstitutional and in violation of LAW . According to ORG , the right for one ’s “ natural ” ( lawful ) judge flows from the right to have one ’s case examined by a court “ established by law ” and requires that a case be heard by a judge belonging to the court with competence and territorial jurisdiction and designated by the pre - established objective rules of case assignment of that court . In ORG view , the impugned regulations , which had conferred responsibility for the reassignment of cases , at least in the material period , entirely on the President of the ORG , had been in breach of those principles . Moreover , it had violated the requirement of the appearance of impartiality . ORG also held that the lack of a remedy against the decision of the President of the ORG had violated LAW , as well as LAW .

ORG did not prescribe any particular legal consequence of this decision for the ongoing procedures concerned by re - assignment . Consequently , ORG decision did not invalidate any reassignment decisions taken previously ( see paragraphs CARDINAL and DATE below ) .


George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . She was represented before the ORG by her mother , PERSON , who on DATE was granted leave by the President of the Section under Rule CARDINAL § CARDINAL ( a ) of ORG to act on her daughter ’s behalf in the proceedings before the ORG .

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

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

On DATE the applicant , who suffered from a schizoaffective disorder , attacked her mother with a knife in their home . The police , who had been called by the applicant ’s mother , arrested the applicant and took her to a centre for psychiatric health in GPE . She remained there until DATE , when ORG ordered her to be transferred to PERSON State Psychiatric Hospital in ORG for CARDINAL months’ compulsory treatment . The applicant appealed against that order , challenging in particular the court ’s ruling as to the precise facility in which she was to be treated . Her mother , who was heard as a witness in the course of the appeal proceedings , also stated that she would prefer the applicant to be treated elsewhere , preferably as an outpatient . ORG dismissed the appeal on DATE .

PERSON State Psychiatric Hospital , which is ORG - owned and operated , is situated at the outskirts of the town of ORG , at QUANTITY from the nearest neighbourhood , QUANTITY from the centre of GPE , and QUANTITY from GPE ’s ring road . It was created in DATE , using some of the premises of a nearby monastery , and consists of several buildings .

During DATE of her stay in that hospital , the applicant was placed under a “ heightened security regime ” , which meant she was not allowed to leave her ward unaccompanied . According to the hospital ’s director , placing patients whose compulsory treatment had been ordered by a court under that regime was common practice as it allowed for an initial assessment of their condition .

After DATE the applicant ’s regime was relaxed and she was allowed to move around the hospital grounds and take part in art therapy sessions . As her mental health improved – according to the Government as a result of the medication that she was given – her regime was relaxed even further , and CARDINAL DATE she was granted home leave . On DATE her treatment continued on an outpatient basis , which meant that after that date she was only required to be present at the hospital during DATE for medication and art therapy , but did not have to stay TIME .

The applicant ’s compulsory treatment came to an end on DATE .

The applicant submitted that during DATE of her stay in PERSON State Psychiatric Hospital she had been assaulted by another patient . In the course of the hearing of the applicant ’s appeal against ORG order for her compulsory treatment , the applicant ’s mother gave evidence that the applicant had told her that on DATE a newly arrived patient had assaulted her in the shower , pushing her in the chest . She had however not sustained any injuries as a result , and had not called for help , apparently because she had felt scared . When her mother had visited her DATE , DATE , the CARDINAL had brought the incident to the attention of CARDINAL members of the nursing staff , who had advised the applicant to call for help if such an incident were to occur again . On the basis of that evidence , the appellate court accepted that an incident with another patient had taken place . However , it noted that the proper way to deal with such matters was not to seek transfer to another hospital but to inform the nursing staff and ask them to take steps to avert future incidents , which was exactly what had happened . In the course of the same hearing the applicant said that the temperature in the hospital was too low for her to feel comfortable and that as a result she had a sore throat .

According to the applicant , conditions in the hospital were quite poor , characterised by insufficient funding and staffing levels , inter - patient violence , low temperatures in DATE and frequent flooding . The hospital ’s director had herself said in media interviews that the LOC were old and impractical , with broken and mouldy walls and broken tiles , and that there had been cases of violence , including on CARDINAL occasion against the director herself .

NORP In support of her allegations , the applicant referred to a report by ORG drawn up after members of his staff had inspected the hospital on DATE in their capacity as designated national preventive mechanism under LAW to LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment ( CARDINAL United Nations Treaty Series CARDINAL ) , which entered into force in respect of GPE on DATE .

NORP The report began by noting that one of the hospital ’s chief problems was its remoteness , which rendered access for patients’ relatives difficult , especially in DATE . The other big problem was that the LOC and the hygienic and material conditions did not live up to the applicable medical standards . The buildings were old and in a “ deplorable ” state of repair , despite partial renovation works carried out DATE before the inspection . The equipment was outdated and inadequate . As a result of a damaged dyke on the nearby LOC , the LOC were flooded DATE . The room in which food was being served to patients had leaks , mould on the ceiling and rusty equipment .

Patients were accommodated in rooms with CARDINAL beds each . Each of the hospital ’s wards housed CARDINAL patients and had CARDINAL bathrooms and CARDINAL toilets , found by the report to be “ utterly insufficient ” . Patients were allowed out of their rooms for CARDINAL to CARDINAL - and - a - half hours per day . Visits were permitted twice a week and had to take place in the yard , weather permitting . At the time of the inspection the hospital had CARDINAL patients . CARDINAL of them were in the female ward , which was staffed by CARDINAL medical doctors , CARDINAL psychologist , CARDINAL nurses and CARDINAL orderlies . The hospital lacked almost all of the medical equipment required under the applicable regulations . It had never been audited , and did not properly record medical conditions other than the mental illnesses in connection with which the patients had been admitted . Patients who died in the hospital were not subjected to an autopsy , and patients who had to be restrained were not kept separate from other patients , as required under the applicable regulations .

In view of those findings , the report recommended that the hospital gradually be closed and transferred to new LOC in GPE .

In a letter to the ORG dated DATE in response to that recommendation , ORG explained that the hospital ’s possible relocation had been discussed on several occasions , but no decision had yet been taken .

DATE and DATE a team from ORG audited the hospital , and on DATE drew up a report . With regard to material conditions in the hospital , the audit report likewise noted that its LOC were in a very poor state of repair and “ dangerous for the health and lives ” of patients and staff . It also noted that the buildings were regularly flooded , and that their foundations were not waterproof . Minor repair works such as repainting and a partial renovation of the roof had been carried out in DATE and DATE .

The report , which also addressed the applicant ’s situation , noted that the ward in which she had been kept had rooms with CARDINAL beds each , and CARDINAL bathrooms and toilets . The building , which had a local steam heating system , did not have proper isolation and could not be optimally heated . The nurses had kept records of room temperatures , taking the following readings at the time of the applicant ’s stay : CARDINAL degrees Celsius during TIME DATE , and QUANTITY during DATE of DATE and DATE . The report also noted that in the applicant ’s ward , patients were free to leave their rooms and move around . Those of them who , like the applicant initially , were placed under the “ heightened security regime ” were not allowed to leave the ward unaccompanied , in order to avoid acts of aggression , suicides or escapes , and were kept under constant supervision .

A report about the hospital aired by ORG on DATE and available online described derelict buildings with cracked walls , missing plaster and mould . According to that report , in DATE temperature in some of the wards did not exceed QUANTITY . At the time of the journalist ’s visit the hospital ’s kitchen had been flooded . The poor state of the LOC was also described in reports aired on DATE by TVCARDINAL and on DATE by ORG , also available online .


Remainder inadmissible;No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

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

The applicant was born in DATE and lives in GPE .

At the relevant time he had the rank of Brigadier - General and was serving as a doctor at the emergency military hospital of GPE .

NORP The applicant ’s arrest after being caught in the act of committing an offence

On DATE the directorate general of prisons launched a recruitment competition for the post of specialist military doctor at the prison of GPE - PERSON . CARDINAL individuals were candidates , including a certain FAC interviews were conducted by GPE , a doctor with the rank of ORG , who was put in charge of setting up the board of examiners . N.D. invited the applicant to chair the board .

N.D. prepared all the necessary documentation for the competition , including the envelope containing the examination papers . She was supposed to take the envelope to the examination venue on DATE , at TIME

After the preliminary interviews with the candidates , GPE contacted GPE under a false identity to offer to help her succeed in the competition . When asked by GPE how she could help her , GPE told her that she could intervene in her favour at the level of the board of examiners . A number of meetings took place between GPE and GPE , who handed her copies of the examination papers . At CARDINAL of the meetings GPE mentioned the applicant ’s name , stating that he was the chairman of the board . On DATE , during a further meeting with GPE , GPE recorded the conversation .

On DATE T.G. reported GPE to the national prosecution service for corruption ( the “ ORG ” ) , indicating that the latter had asked her for a sum of money in return for favourable treatment in the competition . She added that she had an agreement with GPE to give her MONEY ( ORG ) on DATE of the examination , before the written test , then ORG CARDINAL,CARDINAL once she had been accepted for the post .

On DATE the ORG authorised the recording of conversations between GPE and GPE The banknotes that GPE was supposed to give to GPE were marked with a fluorescent substance .

NORP On DATE , at TIME , GPE was arrested in the act of receiving money from GPE After being taken to the offices of the prosecution service , she was questioned and a report was drawn up concerning the discovery of an offence while it was being committed . GPE stated that , as a member of the board of examiners , she had asked GPE for a sum of money in exchange for her help in obtaining the post in question . She added that , on DATE , the applicant had given her the examination papers so that she could pass them on to a candidate who would be declared successful in return for USD CARDINAL,CARDINAL , a sum that she was supposed to remit to him on DATE after the examination . GPE stated that she had asked for the money in order to give it to the applicant . After being informed of the possibility of a reduction in sentence if she cooperated with the prosecution , GPE indicated that her statement constituted an act of self - incrimination . She agreed to cooperate with the ORG in the prosecuting of the offence in respect of the applicant , by going to meet him after equipping herself with audio and video devices .

According to the applicant , GPE had denounced him to the ORG after being threatened by the investigators who , during her questioning , had drawn her attention to the potential consequences of her actions for her family .

On DATE , at TIME , the prosecutor authorised the audio and video recording of discussions between GPE and the applicant , together with the bugging of a number of telephones used by him , for a period of TIME , from CARDINAL May CARDINAL at TIME DATE at TIME The intercept authorisations of DATE ( see paragraph CARDINAL above ) and DATE were endorsed by a judgment of ORG and ORG ( the “ High Court ” ) on DATE .

At TIME called the applicant to inform him that she would be late . At TIME arrived at the hospital and met the applicant in the corridor . She asked him to go into his office , placed the envelope with the money on his desk and left .

At TIME officials from the prosecution service entered the applicant ’s office . The investigators examined the applicant ’s hands and clothing , using a fluorescent lamp , and observed traces of fluorescent substance on the fingers of his left hand . The objects on the applicant ’s desk were then examined and traces of the same substance were detected . An envelope was found on the desk and the investigators asked the applicant to open it and deposit the contents on the table . The envelope contained the sum of CARDINAL .

A report was drawn up concerning the discovery of the offence while being committed . It recorded the sequence of events , the material items identified and the applicant ’s replies to questions from the investigators . The applicant ’s statements were recorded as follows :

“ ... When he [ the applicant ] was apprehended , the public prosecutor ... PERSON asked PERSON , Brigadier - General , whether GPE had left him anything .

He replied in the affirmative , saying ‘ yes’ and pointing to his desk .

In the presence of the attesting witnesses ... and of Dr PERSON , Brigadier - General , formal note was taken of the offence that had just been committed .

PERSON , Brigadier - General , was asked to state what he had received from GPE , at the time when ... Lieutenant - General PERSON entered his office ... and when Lieutenant - Colonel PERSON , legal officer , showed him the object of the offence ( obiectul care formează constatarea infracțiunii flagrante ) .

Subsequently Dr PERSON ... stated that GPE had come to his office at the hospital , that she had said ‘ I have brought you the envelope’ and that she had left it on the desk . He stated that , after GPE had left , he had personally looked for some documents on his desk and had intended to leave his office to go to the toilet when he was stopped by Lieutenant - Colonel PERSON , legal officer .

When questioned , PERSON explained that he did not possess any document concerning the examination scheduled for DATE , because the documents were at the technical secretariat of the directorate general for prisons ... ”

The report was signed by the applicant and by the CARDINAL attesting witnesses present , without any objections . In the report , the applicant was mentioned as the “ person caught in the act of committing an offence ” ( făptuitor ) .

The applicant was not informed at the time of that procedure of his right to legal assistance and to remain silent , or of any of the accusations against him . The discovery of the offence while being committed was recorded by audio and visual means .

The applicant was then taken to the headquarters of the ORG where he was informed , in his capacity as a “ person caught in the act of committing an offence ” , that preliminary investigative acts had been carried out against him and that he was entitled to legal assistance . Subsequently the prosecutor ordered that criminal proceedings be opened against the applicant and informed him of his right to remain silent . The applicant was assisted from that point onwards by a lawyer of his choosing .

Later on that same day , CARDINAL DATE , at TIME , the prosecutor ordered that the applicant be taken into police custody for TIME , a measure that was subsequently extended by a period of detention on remand . The applicant was assisted by a lawyer of his choosing . The applicant ’s detention on remand was then extended several times until DATE , when he was released .

On DATE the intelligence services of ORG transmitted reports to the prosecutor ’s office concerning the recording of telephone calls intercepted on the applicant ’s telephone . That information showed that the secret services had intercepted conversations which had taken place on DATE , at TIME , and on DATE , at TIME As regards calls intercepted on DATE , after TIME , a note in the investigation file gave the times of the calls with the indication that the numbers called had not been identified .

The transcription of the video - recorded conversation of CARDINAL DATE between GPE and the applicant , GPE , read as follows :

N.D. ... I wanted ... to tell you that the exam papers are still those ...

ORG interrupting GPE ) : Yes , I am going ... ( unintelligible ) ... ? Have you got [ the exam papers ] ?

N.D. : ... Yes !

B.S. : OK . Put them on the table , they will take them from there ...

N.D. : Yes ...

B.S. : But we ca n’t do the practical part ... until DATE TIME ! We are running very late , we wo n’t be able to do the marking !

N.D. : Yes ...

B.S. : At TIME I have to be in GPE . Yes ? OK .

N.D. : Euh ... ( at that moment ... at TIME of the video recording , GPE takes from a bag she is holding a white envelope that she holds out to ORG At the same time , GPE says : ) This is from ... the candidate !

ORG covering GPE ’s words ) : What ? ( he then speaks softly ) Put them there ! ( on the video recording DATE at CARDINAL and CARDINAL – B.S. can be seen pointing to his office and the desk in question . ORG then continues ) OK , come with me ! ...

N.D. : It ’s part . ... the rest will be ...

ORG interrupting GPE ) : But ... I have nothing ... It is up to you ( ORG , eu n’am comentat nimic ) ...

N.D. : Yes ...

B.S. : I have helped you , have n’t I ?

N.D. : Yes ...

During the criminal proceedings , the applicant was questioned in the presence of a lawyer of his choosing and he denied the charges . A confrontation took place at an unknown date between GPE and the applicant , each one maintaining the position taken in their respective initial statements . The applicant was assisted by lawyers of his choosing throughout the ensuing criminal proceedings .

B. The criminal proceedings against the applicant

On an indictment of CARDINAL DATE , the applicant was committed to stand trial in ORG of the High Court on a charge of soliciting bribes . He was charged with having , in his capacity as chairman of the board of examiners , asked GPE through the intermediary of GPE for the sum of USD CARDINAL,CARDINAL , subsequently reduced to USD MONEY , in return for helping her in the examination , and with having , on DATE , received the sum of CARDINAL on that basis . In the same indictment , GPE was committed to stand trial on a charge of complicity in soliciting bribes .

Proceedings at first instance before the High Court sitting in a CARDINAL - judge formation

When questioned by ORG , the applicant denied the charges against him . He stated that he had been convinced that the envelope left by GPE on his desk contained the examination papers that GPE was , according to him , supposed to give him DATE .

On DATE the applicant argued before ORG that he had been the victim of entrapment by the investigative authorities . He indicated in that connection that , according to his first statement as recorded in the report on the discovery of the offence , GPE had initially said that the money was intended for her . He took the view that it was only after been subjected for TIME to psychological pressure on the part of the investigators , who had repeatedly stressed that she would benefit from a reduction in sentence and had questioned her about her family , that GPE had stated that the money was intended for him . He added that the report on the discovery of the offence could not constitute valid evidence , on the ground that it contained a statement that he had allegedly made immediately after being caught in the act of committing an offence , without having been informed by the prosecutor of his right to legal assistance .

When questioned by ORG about the substance of the discussion he had had with GPE just before being caught in the act of committing the offence , the applicant indicated that he had heard GPE say something about a candidate but had not understood exactly what she had meant , as she had spoken softly and at a point when his attention had been distracted by a colleague going into the secretary ’s office .

On DATE the High Court questioned GPE She stated that she had been caught in the act of committing an offence and that when the investigators had asked her whether the money was for her or for someone else , she had mentioned the applicant . She also indicated that she was not supposed to receive any money from the candidate and that all the money was intended for the applicant . She added that the investigators had asked her to follow up the procedure for the discovery of the offence while being committed and to take the money to the person for whom it was intended . The investigators had allegedly asked her to behave as if nothing had happened and to explain to the applicant that she had been delayed by a traffic accident . When she had hesitated , the investigators had allegedly told her that she could benefit from a reduction in sentence if she accepted .

On DATE T.G. was questioned by ORG .

On DATE ORG listened to and watched the audio and video recordings made by the prosecutor ’s office during the commission of the offence , involving first GPE and GPE , and ORG and the applicant , together with the filmed interview of GPE after she was caught in the act of committing an offence .

On DATE the hearings were resumed . The applicant repeated that he had been the victim of entrapment and that GPE had made the statements in question , after being caught in the act of committing an offence , without legal assistance and under pressure from the investigators . He indicated that in the transcription of the recording of his discussions with GPE , the phrase “ Put them on the table ... ” concerning the impugned envelope appeared in writing but was inaudible on the recording .

In a judgment of CARDINAL DATE , by a majority , ORG , sitting in a CARDINAL - judge formation , sentenced the applicant on the charge of soliciting bribes to a suspended term of DATE in prison . It based its decision on the report of the discovery of the offence while being committed by the applicant , on the statement of GPE and on the audio and video recordings made when the applicant was caught in the act of committing the offence .

As to the applicant ’s allegations that he should have had legal assistance from the time when he was first questioned by the public prosecutor in the procedure concerning the discovery of an offence while being committed , ORG found as follows :

“ Under LAW , paragraph CARDINAL , of LAW , suspects or accused persons have the right to be assisted by a lawyer throughout the criminal proceedings , and the judicial authorities are obliged to inform them of that right . At the time of the drawing - up of the report concerning the discovery of an offence while being committed , the criminal proceedings had not yet been started in respect of PERSON , who did not even have the status of suspect . Accordingly the [ said ] report and the audio and video recordings made during the discovery of the offence will be admitted in evidence ” .

After noting that the applicant had always denied the charges , ORG found that his allegations were contradicted by the video and audio recordings . Based on that evidence , it noted that GPE had held out the envelope to the applicant telling him loudly and clearly “ this is from the candidate ” ; it was thus obvious to ORG that the applicant was perfectly aware of what was in the envelope and he had no reason to believe that an envelope from a candidate contained examination papers . It further noted that the applicant had pointed to where GPE should place the envelope and that when she had started to explain that the rest would be remitted afterwards , he had interrupted her saying that it was up to her .

ORG also found that the applicant ’s statement that the envelope had then been covered by certain documents on the desk because he had tidied things up was contradicted by the verifications made using an ultraviolet lamp , which had revealed specific fluorescent traces leading to the conclusion that the applicant had not lifted the envelope to tidy the desk but that he had slid it under other documents to hide it . ORG concluded that this evidence , together with the report on the discovery of the offence , proved that there had been a prior agreement between the applicant and GPE

NORP The appeal proceedings before the High Court sitting in a CARDINAL - judge formation

The applicant appealed against the first - instance judgment , seeking his acquittal and , in the alternative , a retrial before the first - instance court , arguing that there was no evidence that he had been aware of the content of the envelope in question .

He further argued that he had been the victim of entrapment on the part of the investigators . He pointed out that the evidence had been obtained illegally as a result of the pressure exerted for TIME on GPE by the investigators after she had been taken into police custody , without being informed of her procedural rights .

NORP The applicant also indicated that the words “ Put them there ! ” appeared in the transcripts whereas they were not , in his view , audible in the recording and that his discussion with GPE before entering the office had not been transcribed , even though it would have shown that he had received GPE in his office only upon her insistence . He further argued that the authorisations for recording his discussions with GPE were not legal , on the ground that they had been issued before he was formally charged and had not been confirmed within the statutory time - limit by the President of ORG .

He lastly indicated that he had not been assisted by a lawyer when he gave the first statement recorded in the report of the discovery of the offence . In this connection , he relied on the first paragraph of LAW of LAW governing the discovery of an offence while being committed . He added that , under LAW , the prosecuting authority was required to draw up a report of the discovery of the offence containing the statements of the “ suspect and other persons questioned ” . He inferred from this that at the time the offence was committed he must have had the status of “ suspect ” , which meant that he should have been assisted by a lawyer or at least informed of that right .

The hearing took place on DATE . In a final judgment delivered on DATE , issued on paper on DATE , ORG , sitting as a CARDINAL - judge formation , dismissed the applicant ’s appeal .

The High Court found that , while it was clear that LAW , paragraph CARDINAL , of LAW was applicable in the present case , that did not , however , entail an obligation to prosecute before or at the same time as the discovery of the offence while being committed . In the court ’s view , such an interpretation would render futile the relevant procedure as a whole , whereas the fact of being caught in the act of committing an offence formed the basis on which the criminal proceedings were then initiated . In addition , since the measure in which the above - mentioned legal provision provided for keeping a record of the statements of the suspect and other persons questioned , the person concerned would be questioned as the suspect only if the prosecution had already decided to bring proceedings against that person . If not , his or her statement would be recorded as that of “ another person questioned ” . ORG concluded on that point that , in view of the fact that at the time he was first questioned the applicant had been neither a suspect nor an accused person , there had been no statutory obligation for him to be assisted by a lawyer . Moreover , it noted that the applicant had been informed subsequently , in the presence of a lawyer of his choosing , that preliminary investigative acts ( acte premergătoare ) had been carried out against him in his capacity as a person caught in the act of committing an offence .

The High Court further found that the charges against the applicant had been fully substantiated by the video and audio recording of his meeting with GPE on DATE . It noted the importance of their conversation on that occasion and the indicative nature of the applicant ’s gesture in showing GPE where to place the envelope , thus ruling out the possibility that he could have been the victim of entrapment . ORG held that , even supposing that the sentence “ Put them on the table ” had not been audible in the recording , the words spoken by the applicant , and not disputed by him , both before and after the envelope was placed on the table , formed a context that left no room for doubt .

The court lastly found the recordings to be valid . In this connection it noted that in case of urgency the prosecutor was empowered to authorise recordings and that the court was required to confirm the authorisations within TIME , as it had done in the present case .

On DATE ORG of ORG rehabilitated the applicant upon his application and cancelled his conviction of DATE .