Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

All CARDINAL applications were lodged with the ORG by the same applicants . They were initially registered under application no . CARDINAL/CARDINAL ( not communicated to the Government ) .

After a preliminary examination of the case file and taking account of the ORG additional clarifications as well as the conduct of the domestic proceedings , it was considered necessary to divide the case into CARDINAL applications , CARDINAL additional application numbers having been allocated ( nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) . These latter CARDINAL cases have been communicated to the Government .

The facts in respect of each application have been described below .

On DATE ORG ( “ the GPE ” ) recognised the applicants’ inherited property rights to a plot of land measuring CARDINAL sq . m , QUANTITY . m of which was restored . The applicants would have the right to first refusal ( e drejta e parablerjes ) of a further QUANTITY . m and they would be compensated in CARDINAL of the ways provided for by law for the remaining QUANTITY m ( “ the first Commission decision ” ) .

On DATE , ORG , consisting of the same composition , delivered another decision which bore the same number and ORG stamp ( “ the second Commission decision ” ) . According to the second decision , ORG recognised the ORG inherited property rights to a plot of land measuring QUANTITY m , CARDINAL sq . m of which was restored . The applicants would have the right to first refusal of QUANTITY . m , no other award having been made .

On DATE ORG recognised the existence of the applicants’ inherited property rights to a plot of land measuring QUANTITY . m situated in the city of GPE ( vendim për vërtetim fakti ) . This plot of land was made up of CARDINAL smaller plots : CARDINAL measuring QUANTITY m ( “ Plot A ” ) and the other measuring QUANTITY . m ( “ Plot B ” ) .

On an unspecified date the applicants made an application for the recognition of property rights to Plot B ( see paragraph CARDINAL above ) .

On DATE ORG for Compensation and ORG ( “ the ORG ” ) recognised the ORG inherited property rights to Plot B , QUANTITY . m of which was restored . The applicants would also be compensated in CARDINAL of the ways provided for by law in respect of a further CARDINAL sq . m , no decision having been taken in respect of the remaining QUANTITY m.

On DATE , following the applicants’ appeal , ORG in GPE ( “ the LOC ” ) quashed ORG decision of DATE and remitted the case for re - examination .

On DATE ORG recognised the applicants’ inherited property rights in respect of CARDINAL sq . m of Plot B , no decision having been taken in respect of the remaining QUANTITY . m. The applicants would be compensated in CARDINAL of the ways provided for by law in lieu of restitution of the area of Plot B measuring QUANTITY m.

On DATE ORG quashed ORG decision of DATE . The applicants were informed of their right to appeal , within DATE of notification , to ORG .

It would appear that , following the ORG appeal , the proceedings are currently pending before ORG .

On DATE ORG , having regard to ORG decision no . CARDINAL ( see paragraph CARDINAL below ) , decided that it was outside of its jurisdiction to examine a decision given in a separate set of proceedings which , in DATE , had recognised a third party ’s inherited property rights to the plot of land measuring QUANTITY . m which the applicants alleged belonged to them .

On an unspecified date , after ORG decision of DATE ( see paragraph CARDINAL above ) , the applicants applied for the recognition of property rights to a plot of land measuring CARDINAL sq . m. This plot of land , taken together with the plot of land measuring CARDINAL sq . m referred to in the second GPE decision ( see paragraph CARDINAL above ) , totalled Plot A.

On DATE ORG recognised the applicants’ inherited property rights to the plot of land measuring CARDINAL sq . m and further restored them a plot of land measuring QUANTITY m. CARDINAL sq . m of Plot A had already been restored by virtue of the second GPE decision ( see paragraph CARDINAL above ) . The applicants would be compensated in CARDINAL of the ways provided for by law for CARDINAL sq . m of ORG , no decision having been taken in respect of the remaining CARDINAL sq . m.

On DATE , following the applicants’ appeal , ORG quashed ORG decision DATE and remitted the case for re - examination .

On DATE ORG recognised the applicants’ inherited property rights to the plot of land measuring CARDINAL sq . m and further restored them a plot of land measuring CARDINAL,CARDINAL sq . QUANTITY . m of Plot A had already been restored by virtue of the second Commission decision . The applicants would be compensated in CARDINAL of the ways provided for by law for CARDINAL sq . m of Plot A.

On DATE , on his own motion , ORG director quashed ORG decision of DATE and sent the case back for re - examination .

On DATE ORG offices were abolished by law and ORG was entrusted with the examination of restitution and compensation claims . No further decision appears to have been taken to date .

On DATE ORG recognised the applicant ’s father ’s property rights to a plot of land measuring QUANTITY . m , CARDINAL sq . m of which was restored . The applicant would be compensated in CARDINAL of the ways provided for by law in respect of a plot measuring CARDINAL sq . m ( t’i kompesohet sipërfaqja prej CARDINAL MONEY mënyrat e parashikuara në [ këtë ] ligj ) . The ORG further recognised the applicant ’s right to first refusal of the remaining property .

On DATE the applicant registered her title to a plot of land measuring QUANTITY . m in her name . However , she was unable to use that land as it was occupied by ORG ( “ the ORG ” ) .

On DATE ORG ordered the registration of the immovable property of ORG . However , ORG was unable to register the immovable property as the property rights had been recognised and registered in favour of the applicant .

On DATE the applicant brought civil proceedings before ORG ( “ the ORG ” ) requesting ORG to vacate the plot of land measuring QUANTITY m.

On DATE ORG accepted the applicant ’s request . ORG appealed .

On DATE ORG quashed the lower court ’s decision on grounds of procedural irregularities and remitted the case for re - examination by a different bench .

On DATE the applicant appealed against the decision to ORG .

On DATE , following the applicant ’s request about the progress of her appeal , ORG informed her that the case was still pending for examination before that court .

On DATE ORG dismissed her appeal .

On DATE , in the rehearing proceedings , ORG discontinued the proceedings ( vendosi pushimin e çështjes ) for lack of appearance of the applicant despite notification of the date and time of the hearing .

On DATE ORG recognised the applicant ’s inherited property rights to some plots of land .

On DATE ORG ( “ ORG Office ” ) was informed of the above decision and , on DATE , appealed against it arguing that the decision had been taken in breach of the law .

On DATE ORG director stayed the proceedings until the adoption of a decision by ORG in a case concerning the constitutionality of certain provisions of LAW ( see paragraphs CARDINAL below ) .

On DATE ORG relied on , inter alia , ORG decision no . PERSON ( see paragraph CARDINAL below ) to declare the case outside of its jurisdiction .

The proceedings are currently pending before ORG following an appeal by ORG on an unspecified date in DATE .

NORP In DATE ORG bought a plot of land and a CARDINAL - bedroom house located thereon from the ORG . The property had been confiscated from NORP and expropriated by the ORG in DATE .

On DATE the applicant bought the property from PERSON and it was entered in the mortgage register .

On DATE , under LAW ( Law no . DATE ) , the financial unit of GPE allocated to NORP ’s heir , PERSON , the land and the house purchased by the applicant .

On DATE PERSON donated the property to her brother , H.

On an unspecified date in DATE lodged a civil action against the applicant for the vacation of the land and the house .

By a final decision of CARDINAL DATE ORG ruled in favour of H. , ordering the vacation of the land and the house . It upheld the lower court ’s decision which had recognised H. as the legal owner and had declared null and void the sale contract of CARDINAL DATE .

On DATE ORG recognised H. ’s title to the above properties .

On DATE the applicant ’s supervisory review request was rejected by ORG .

On an unspecified date , most likely in DATE , the applicant lodged a civil action seeking the nullity of a number of legal acts which had affected his property rights .

DATE . On DATE ORG found that the applicant had no locus standi to bring legal proceedings . According to the court , the sale contract of CARDINAL DATE was null and void on the following grounds . In the first place , by virtue of the Rehabilitation of Victims of Political Repression Act CARDINAL , PERSON was not allowed to transfer property rights to third parties . Secondly , the sale contract had not been concluded in accordance with the law ( before a notary public ) . Thirdly , ORG decision of DATE had ordered the vacation of the land and the house by the applicant . The applicant appealed to ORG within the DATE statutory time - limit ( see paragraph DATE below ) .

On DATE ORG , by way of a reasoned decision , upheld ORG decision .

On DATE ORG , sitting as a bench of CARDINAL judges , rejected the applicant ’s constitutional appeal , finding that the lower courts had correctly ruled that the applicant lacked locus standi .

Section CARDINAL of the DATE LAW , as amended by law no . CARDINAL of DATE , provided for the right of a claimant and of ORG to appeal against ORG decision recognising property rights and awarding compensation , as appropriate , within DATE of its notification , to ORG .

ORG director would decide on the appeal within DATE of its introduction ( jo më vonë se CARDINAL ditë nga regjistrimi i ankimit , Drejtori i GPE merr vendim për objektin e ankimit ) .

Under LAW ORG a claimant may seek the annulment of an administrative decision . A claimant may also challenge the authorities’ refusal to take an administrative decision within the prescribed time - limit .

Article CARDINAL of the ORG provides that the time - limit for lodging an appeal with ORG is DATE .

Section CARDINAL provides that “ the HCJ is ... responsible for the protection , appointment , transfer , dismissal , education , moral and professional appraisal , career and the assessment of performance of judges of first - instance courts and of courts of appeal . ”

Under LAW , the LAW is also empowered to take disciplinary measures against judges . In this connection , it is assisted by an ORG as provided for in section CARDINAL . Under section CARDINAL , ORG verifies complaints submitted by individuals to the LAW or to the Minister of Justice against judges’ actions . In the event of good cause for the institution of disciplinary proceedings , the ORG draws up a report and submits it to the Minister of ORG who decides on the start of disciplinary proceedings . The report is also submitted to the HCJ meetings .

On DATE and CARDINAL DATE ORG and the ORG requested ORG to examine the constitutionality of some provisions of the DATE LAW , as amended .

On DATE ORG declared unconstitutional some provisions of the DATE LAW , as amended , which had empowered ORG director to review prior decisions taken by former land ORG offices ( decision no . CARDINAL ) . It found that such powers were contrary to the principle of legal certainty .

On DATE ORG therefore enacted amendments to the DATE LAW which restored ORG director ’s powers to review prior decisions taken by land ORG offices .

On DATE and CARDINAL DATE the constitutionality of these amendments was challenged before ORG .

On DATE ORG annulled the provisions of the DATE LAW as introduced on DATE . It found that ORG did not have the characteristics of a judicial or quasi - judicial body , so that it could not be empowered to review decisions of former land ORG or regional Agency offices . It further found that such review powers were contrary to the principle of legal certainty and the protection of property ( decision no . PERSON ) .

On DATE ORG found that there had been a breach of the appellant ’s right to a fair hearing as regards the length of the criminal proceedings ( decision no . CARDINAL ) . No award was made to the appellant , nor was any other means of redress provided .

On DATE the Constitutional Court found that there had been a breach of the appellant ’s right to a fair hearing as regards the length of the civil proceedings ( decision no . CARDINAL ) : the civil action had been pending before ORG since DATE . No award was made to the appellant , nor was any other means of redress provided .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

NORP The applicants’ names , dates of birth and places of residence may be found in the FAC .

From DATE , the applicants in applications nos . CARDINAL/CARDINAL , CARDINAL , QUANTITY and CARDINAL were full - time employees at ORG ( the MDC ) , a state - owned enterprise ( DATE ) . The applicants in application no . CARDINAL/CARDINAL are the wife and children of Mr Attard , who also worked at GPE Drydocks during the same period ( having started in DATE ) but left in DATE to take up managerial duties with ORG , where he was no longer exposed to asbestos .

According to the applicants , the applicants in applications nos . CARDINAL , CARDINAL , QUANTITY and CARDINAL and Mr ORG had been constantly and intensively exposed to asbestos during their employment . Asbestos in its various forms was one of the substances kept in stock in GPE Drydocks’ storerooms and ships incorporating asbestos as part of their structure regularly entered the docks ( or ship repair yard ) and were repaired there by workers . Repairs included breaking apart the asbestos casing that was used for insulation purposes , thereby releasing the particles into the surrounding air . Once a machine was repaired , it had to be reinsulated using asbestos retrieved from the store - rooms . Such repairs were carried out both on the ships themselves and in the ORG ’s workshops .

The applicants contended that asbestos particles would settle on the workers’ clothing and be carried around in this way , with the result that it could also affect the lives of their family members , creating further anguish and affecting their private and family life .

In DATE , GPE became a member of ORG ( “ ORG ” ) ( see “ Relevant domestic law and international standards ” below ) and of ORG ( “ WHO ” ) , both organisations having been raising awareness regarding the dangers of asbestos since DATE . At the time , however , the employees of ORG had been neither informed about nor protected from the dangers of asbestos in any way . The Government disagreed with the ORG assertion that international organisations had raised awareness of the dangers of asbestos in DATE , noting that ORG had been concluded in DATE and that the ORG had issued its guidelines much DATE .

The first publicly available – though not publicly disseminated – information concerning the fatal consequences of asbestos at ORG appears to be the judicial acts and judgment relating to a lawsuit brought in the names of PERSON proprio et nomine vs PERSON nomine , concerning the deceased PERSON ( erroneously referred to by the parties as PERSON ) who died from asbestosis in DATE . In that case , in a judgment of CARDINAL DATE , the then ORG established ORG ’s responsibility for the death of PERSON and awarded ( in a separate decision of DATE ) damages under NORP law consisting of lucrum cessans and damnum emergens ( see also “ Relevant domestic law ” below ) .

No action was taken following that judgment save that employees were assured that adequate ventilation and the wearing of fabric masks would protect them from asbestos .

Mr Attard died in DATE , aged DATE , as a result of a malignant cancer linked to exposure to asbestos ( mesothelioma ) . Following the death of a number of their colleagues , the applicants in applications nos . CARDINAL , CARDINAL , GPE and CARDINAL underwent medical tests , which were performed again in DATE in the context of proceedings before the ORG . With the exception of the case of PERSON , most of the X - rays revealed bilateral pleural plaques ( extensive in some cases ) compatible with asbestos exposure . PERSON of some of the applicants also revealed pleural thickening , reticulo - nodular interstitial parenchymal texture in the lungs , and in some cases also pulmonary fibrosis , all of which are consistent with asbestosis . The results suggested that there was a strong probability of the presence of asbestos fibres in their stomach lining , as well as in other digestive organs . Moreover , apart from the physical difficulties such as exercise intolerance that were mainly related to respiratory problems , the presence of asbestos in their bodies made them prone to malignant mesothelioma , as was the case with Mr Attard , abovementioned . From the medical data it was also apparent that the applicants had no pleural effusions and that their lungs were clear , with no filtrates or nodules , and their hearts , hila and upper mediastina were also normal . Most of the applicants are nonsmokers .

NORP In particular , Mr PERSON has been confined to bed for DATE as a result of his acute respiratory problems and can only breathe via oxygen cylinders that further reduce his mobility . PERSON medical results did not show evidence of asbestos - related disease .

On DATE these applicants instituted separate constitutional redress proceedings , complaining of a violation of ORG , CARDINAL and DATE of the Convention in that the ORG had failed to protect them from unnecessary risks to their health , which also constituted inhuman treatment and an interference with their private and family life . They asked the court to quantify a fair amount of compensation for the breach of the aforementioned rights , to liquidate that amount , and to order that this pecuniary redress be paid individually to the applicants ( “ PERSON xieraq bħala rimedju għal ksur tad - drittijiet fuq indikati jew mil - liema minnhom , tillikwida PERSON , u tordna PERSON ir - rimedju pekunjarju jithallas individwalment lir - rikorenti ” ) .

NORP In reply to the Government ’s objection of non - exhaustion of ordinary domestic remedies in the domestic proceedings the applicants in question maintained that under NORP law the ordinary civil remedies available did not apply to non - pecuniary damage ( known in the domestic system as “ moral damage ” ) , but solely to pecuniary damage ; they claimed that these types of damage were independent of each other .

In CARDINAL separate but almost identical judgments of CARDINAL DATE the first - instance constitutional jurisdiction DATE namely , ORG ( FAC ) in its constitutional jurisdiction – declined to exercise its powers under LAW and under LAW and discharged the defendants ab observantia iudicii thereby in effect dismissing the applications on the grounds of non - exhaustion of ordinary domestic remedies . That court held that the applicants should have instituted a civil action for damages arising out of tort or contractual liability . It considered that according to the ORG ’s case - law , namely GPE v. GPE ( no . CARDINAL , § CARDINAL , DATE ) , there was no general or absolute obligation on ORG to pay compensation for non - pecuniary damage in such cases .

By CARDINAL judgments of DATE ORG upheld the first - instance decisions . It considered that the Government , as an employer , could be sued under civil law for their failings . It held in effect that the fact that such failings were also of a constitutional nature did not in itself mean that they could not be pursued through ordinary civil proceedings . It also held that a person could not allow the time within which to bring an ordinary civil action to expire and then resort to constitutional proceedings as a remedy in extremis . The court considered that constitutional redress proceedings could be instituted only after the applicants had instituted civil proceedings and if , after a final judgment , they still felt that the breaches of their rights had not been adequately redressed . It held that given that neither the ORG nor national law provided for compensation for non - pecuniary damage in such cases , the ordinary remedy would have been effective . In any event , according to the court , in their constitutional application , the applicants made no specific mention of non - pecuniary or moral damage , having claimed compensation for pecuniary damage only .

On DATE these applicants , who are the heirs of the deceased Mr Attard , also instituted proceedings , complaining of a violation of ORG , CARDINAL and DATE of the Convention .

NORP In reply to the Government ’s objection of non - exhaustion of ordinary domestic remedies in the domestic proceedings , the applicants submitted that under NORP law the ordinary civil remedies available did not provide for non - pecuniary damage but only for pecuniary damage ; they claimed that these types of damage were independent of each other .

By a judgment of DATE ORG ( FAC ) in its constitutional jurisdiction declined to exercise its powers under LAW and under LAW and discharged the defendants ab observantia iudicii , thereby in effect dismissing the claims of the applicants on the grounds of non - exhaustion of ordinary remedies . In its analysis of the principles governing the exercise of the above - mentioned powers under LAW and LAW , the court noted , inter alia , that the failure to pursue ordinary remedies by an applicant was not in itself a sufficient reason for a court of constitutional jurisdiction to decline to exercise its powers if it could be shown that the ordinary means could not provide a complete remedy . It also held that the decision to decline or otherwise to exercise such powers was to be exercised with prudence , so that where it appears that there is a serious violation of fundamental human rights or even where there is likely to be the violation of such rights , then the court should lean towards exercising its powers . Nevertheless , it considered that what the applicants were ultimately requesting was a sum of money by way of damages . Given that ordinary remedies under LAW could have resulted in an award of monetary compensation , the applicants should have pursued those remedies before instituting constitutional redress proceedings .

In a judgment of DATE ORG upheld the first - instance decision for substantially the same reason indicated in paragraph CARDINAL above .


André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

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

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

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

DATE the applicant and an acquaintance were consuming alcohol together when a fight broke out between them and the acquaintance died . The applicant , still under the influence of alcohol , asked the neighbours to call an ambulance or the police , who arrived at TIME on DATE . The applicant was placed under administrative arrest and admitted to a sobering - up facility at TIME

At TIME on DATE the applicant was placed under arrest on suspicion of having committed the offence proscribed by section CARDINAL(CARDINAL ) of LAW ( PERSON ) ( see paragraph CARDINAL below ) . The record of the arrest stated that the applicant had been sober and also contained his signature to confirm that he did not need a lawyer .

CARDINAL the police questioned the applicant as a suspect . The record of the interview indicated that the applicant was suspected of the offence under section CARDINAL(CARDINAL ) of the Criminal Law for having inflicted severe injury causing death . It further contained the applicant ’s signature to confirm that he had been informed of the right to ask for a lawyer . He also signed a note made in NORP stating that he wished to give evidence in NORP and that he did not need a lawyer . According to the applicant , this note was written in his handwriting . The applicant declared that the victim had started the fight and that he had acted in self - defence .

On DATE , CARDINAL , the police visited the crime scene together with the applicant to verify his statements . TIME the applicant was questioned . The record of the interview contained his signature to confirm that he had been informed of the right to have a lawyer present . It further stated that the applicant had wished to give evidence in the presence of a lawyer . The same day the applicant was provided with ORG - appointed lawyer PERSON

On DATE the police questioned the applicant in the presence of NORP The applicant gave further details concerning the incident . He confirmed that the victim had started the fight and that he had acted in self - defence .

On DATE the applicant was charged with murder under section CARDINAL of LAW . DATE he was questioned as an accused in the presence of I.C. The applicant stated that he was not guilty . He had hit the victim because the latter had attacked him .

On DATE the applicant again declared , in the presence of GPE , that he was not guilty . He did not wish to add anything to his previous statements . DATE the applicant and GPE familiarised themselves with the case file . The applicant stated that he had understood its content and did not wish to make any requests or remarks .

On DATE the applicant was committed for trial .

On DATE a hearing was held before the court in GPE . GPE was present . The applicant testified that he had caused the victim ’s death but it had not been his intention to kill him . The applicant expressed his remorse .

According to the transcript of the hearing , ORG asked CARDINAL questions , CARDINAL to the applicant and the other to his former wife . In her closing statement , ORG stated , inter alia , that the applicant had not started the fight . It had been the victim who had inflicted pain on him and this had prompted him to react . The applicant had been unable to understand the consequences of his actions because of the mental distress he had been caused . Following the incident he had actively sought assistance . The applicant had been the only witness to the incident and any doubts regarding the existence of facts relevant to the case had to be interpreted in his favour .

During the first - instance proceedings the applicant raised no complaints as regards his representation by ORG He stated that no lawyer had been present during the first “ investigation ” .

On DATE the first - instance court convicted the applicant of murder under section FAC of LAW and sentenced him to DATE imprisonment .

On DATE ORG lodged a CARDINAL - page appeal against the sentence imposed by the first - instance court . Referring to the circumstances of the incident , she submitted that the applicant had not acted intentionally .

On DATE the applicant lodged an appeal . He maintained that he had not intended to kill the victim . He raised no complaints as regards his representation by I.C. He stated that there had been several irregularities during the investigation , including the fact that he had not been provided with a lawyer .

On DATE the court in PERSON decided not to consider the applicant ’s appeal on the grounds that he had not made any requests in it .

On DATE the applicant lodged another appeal . He disagreed with the legal classification given to the facts . He had acted in self - defence and had not intended to kill the victim . He supported the appeal lodged by ORG and requested that a more lenient judgment be rendered .

On DATE another lawyer , ORG , undertook to represent the applicant in the criminal proceedings .

On DATE an appeal hearing was held before ORG ( PERSON apgabaltiesa ) . PERSON was present . The applicant maintained that he had not intended to kill the victim . PERSON stated , inter alia , that the first - instance court had failed to consider all the mitigating circumstances , namely , the fact that the victim had started the fight and had been the first to hit the applicant . The incident had been brought about by the victim’

During the appeal proceedings the applicant raised no complaints as regards his representation by ORG or I.C.

Following the appeal hearing , on DATE ORG dismissed the appeals by the applicant and his lawyer and upheld the lower court ’s judgment .

On DATE the applicant lodged an appeal on points of law against the aforementioned judgment . He disagreed with the legal classification given to the facts and argued that he had not intended to kill the victim . The applicant raised no complaints as regards his legal assistance or his representation by ORG or I.C.

On DATE ORG decided not to consider the applicant ’s appeal on the grounds that he had failed to substantiate it .

DATE the applicant supplemented his appeal on points of law . He disagreed with the legal classification given to the facts . He maintained that he had acted in self - defence and had not intended to kill the victim . He complained that initially he had been suspected of having inflicted severe injury resulting in death but subsequently had been charged with murder . When the offence had been reclassified PERSON had “ sat and remained silent ” .

By a final decision of CARDINAL DATE ORG of the ORG of ORG ( PERSON tiesas ORG departaments ) refused to examine the applicant ’s appeal on points of law .

On DATE the applicant filed a complaint with ORG regarding the quality of legal services provided by the first ORG - appointed lawyer during the preliminary investigation and the proceedings at first instance .

On DATE ORG replied that ORG had acted in accordance with domestic law . It could be seen from the case material that she had defended the applicant ’s interests .

On DATE the applicant lodged a complaint with the PERSON ( PERSON ) . He stated that his right to a fair trial had been breached because he had not received legal assistance during the preliminary investigation .

On DATE the PERSON replied that the applicant ’s right to a fair trial had not been breached . Following the preliminary investigation , ORG had been requested to assist the applicant , followed later by ORG According to the transcript of the hearings , both lawyers had defended the applicant .

Upon a further complaint by the applicant , on DATE ORG replied that ORG had attended all the procedural activities to which she had been asked . She had lodged an appeal against the firstinstance judgment . The applicant had not complained about her services or requested another lawyer during the preliminary investigation or the first - instance proceedings .

The relevant provision of the former Code of Criminal Procedure ( in force until DATE ) provided as follows :

Article DATE Mandatory defence

“ The defendant must have defence counsel during the first - instance proceedings :

CARDINAL ) in cases involving persons ( lietās par personām ) who do not understand the language of the proceedings .

In the [ aforementioned ] cases of mandatory defence the defendant must also have defence counsel during the preliminary investigation ...

In cases of mandatory defence , if the suspect [ or ] accused ... does not engage defence counsel and no one engages defence counsel on his or her behalf , an investigator , a prosecutor or a court shall ensure the participation of defence counsel in the proceedings . ”

Under LAW the suspect and the accused had the right to refuse defence counsel on his or her own initiative .

Under section CARDINAL(CARDINAL ) of the Criminal Law infliction of severe injury which caused death by negligence was punishable by imprisonment for a term of DATE with or without police control for DATE . Under section CARDINAL of the PERSON murder was punishable by imprisonment for a term of DATE with or without police control for DATE .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in DATE and lives in PERSON .

The applicant has CARDINAL children . Prior to his early retirement he had been employed and had paid his social security contributions to the ORG .

On DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called “ EWK ” pension .

Along with his application for a pension , the applicant submitted , among other documents concerning his daughter ’s health condition , a medical certificate issued by a specialist doctor on DATE . The certificate stated that the child ( born in DATE ) suffered from neurogenic bladder dysfunction and that she was in need of her parent ’s constant care .

On DATE the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension .

ORG initially suspended the payment of the pension until DATE due to the fact that the applicant was still working on the date of the decision .

On DATE the applicant ’s employment contract expired .

Consequently , on DATE the ORG started to pay the retirement pension in the net amount of MONEY ( PLN ) ( approx . EUR CARDINAL ) .

The applicant was issued with a pensioner ’s identity card marked “ valid indefinitely ” and he continued to receive his pension without interruption until the date of the revocation of the right .

On an unspecified date ORG asked ORG doctor ( PERSON ) to inform it whether the applicant ’s daughter required the permanent care of a parent . The doctor stated that , on the basis of the medical documents , the child could not be considered as ever having required such care .

On DATE ORG issued simultaneously CARDINAL decisions in respect of the applicant .

By virtue of CARDINAL decision , the payment of the applicant ’s pension was discontinued with immediate effect . By virtue of the other decision , ORG revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the DATE Ordinance .

The applicant appealed against the decision divesting him of the right to an early - retirement pension . He submitted that he should receive the benefit because his child required constant care , as confirmed by the medical certificate attached to the original application for a pension . Moreover , the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights .

On DATE the ORG dismissed the applicant ’s appeal .

The applicant appealed against the first - instance judgment .

On DATE the ORG dismissed the applicant ’s further appeal . The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the DATE Ordinance as he had not satisfied the requirement of necessary permanent care .

A professional lawyer prepared and lodged a cassation appeal against the second - instance judgment on the applicant ’s behalf .

On DATE ORG rejected the cassation appeal ( odrzucił ) on the ground that the lawyer had not indicated the grounds which would justify the examination of the cassation appeal ( okolicznośći uzasadniające rozpoznanie kasacji ) .

Following the social security proceedings the applicant was not ordered to return his early - retirement benefits paid by ORG , despite the revocation of his right to an early - retirement pension .

NORP Throughout the whole period of receiving the EWK pension the applicant did not work .

According to the ORG ’s submissions , on DATE , the applicant started working at his previous ORG . He continued his employment there until DATE . As of DATE he continued employment with another employer where he is still working on a permanent basis .

The Government also submitted that the applicant ’s gross DATE income amounted to CARDINAL . PERCENT of the average brut salary in GPE in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE and PERCENT in DATE .

The applicant submitted that on DATE he had started work as an auxiliary employee with the lowest remuneration and that his salary was lower than before the granting of the EWK pension . He produced a copy of his employment contract dated DATE from which it emerges that the contract had been concluded for DATE and that the applicant had been paid ORG CARDINAL ( approx . EUR CARDINAL ) . He also produced CARDINAL copies of his further employment contracts of CARDINAL DATE and DATE also concluded for DATE each with remuneration amounting to ORG CARDINAL .

According to the information available on the official website of ORG the average remuneration in GPE was ORG CARDINAL in DATE and ORG CARDINAL in DATE . It follows that the applicant ’s salary in DATE amounted to PERCENT of the average remuneration .

The Government also submitted that before being granted the ORG pension the applicant had been employed and his income had amounted to PERCENT of the average brut salary in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE and PERCENT in DATE .

The Government further submitted that the applicant ’s son had also worked as of CARDINAL DATE .


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

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently serving a prison sentence .


Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in LOC .

On DATE the applicant ’s DATE son , Erhan GPE , was found dead , together with his friend PERSON , who was around the same age , after falling into a water - filled hole on a construction site where they had apparently been playing . The cause of death was determined as drowning .

The hole on the construction site was covered by GPE ( “ the Municipality ” ) in the aftermath of this tragic incident .

Shortly after the incident , criminal proceedings were instigated against the owner of the construction site , GPE ( also referred to as “ the employer ” ) and CARDINAL officials from ORG for causing death by negligence and failing to comply with the regulations and orders , pursuant to LAW in force at the material time ( PERSON no . CARDINAL ) .

During the course of the criminal proceedings ORG obtained CARDINAL different expert reports with a view to determining liability for the death of the applicant ’s son .

The first report , dated DATE , was drawn up by CARDINAL civil engineers . The report noted at the outset that the hole in question , which measured QUANTITY with QUANTITY depth , had been dug in the side yard of the construction for use as a shelter and no safety measures had been taken to enclose it . The hole was located QUANTITY from the main avenue and QUANTITY from the closest apartment building . The witnesses interviewed at the scene of the incident , including CARDINAL construction workers , confirmed that no precautions had been taken to cover or otherwise enclose the hole . The CARDINAL workers indicated that they had initially placed wooden planks on the south side of the hole but had later removed them after discovering that children were throwing them into the hole . They further stated that the construction workers were aware that the hole in question regularly filled up with rainwater and CARDINAL of them said that they occasionally used the water that accumulated in the hole for construction work . The workers disagreed , however , as to when the hole had been dug : while CARDINAL of them claimed that it had been there since DATE or DATE , the other one said that it had been dug DATE prior to the incident .

On the basis of their observations and the witness statements , the committee of experts concluded that the deceased children had been partly at fault for the incident ( PERCENT ) , as the construction site where they had been playing was clearly not a play area . The experts noted that the LOC also bore PERCENT responsibility for the CARDINAL children ’s deaths , as ( i ) they had failed to duly inspect whether the construction , for which it had issued a permit , had complied with the rules on work safety , and to ensure that the construction site had been properly closed off with wooden panels as a safety measure , and ( ii ) it was not clear on what legal ground it had allowed the digging and the use of the hole in question as a shelter , as such shelters had to be built beneath buildings and not in open spaces . According to the experts , the remaining responsibility ( PERCENT ) lay with the owner , GPE , who had failed to put in place the necessary safety measures on the construction site , such as building a wooden fence around the hole , erecting warning signs or recruiting a security guard to control access to the construction site .

On DATE a second report was prepared by CARDINAL occupational safety experts . Reiterating the factual findings in the previous report of DATE , the experts identified CARDINAL main causes of the accident in question : ( i ) absence of wooden panels around the construction site , which was located in a residential area in close proximity to other houses and public roads ; ( ii ) absence of any railing around the hole ; ( iii ) absence of signs prohibiting entry into the construction site or warning against the water - filled hole on the site ; and ( iv ) lack of diligence of the deceased children . The experts indicated that responsibility for all of the causes identified , save for DATE , lay with the employer , in accordance with the relevant provisions of LAW ( Law no . CARDINAL ) and the Regulation on Workers’ Health and Occupational Safety in Construction Work ( PERSON ve İş PERSON ) in force at the material time . They noted that , according to the information provided to the investigation authorities by the applicant , the hole in question had been open for DATE , and a number of residents from the neighbourhood had warned GPE to take the necessary safety measures against the hazards on the construction site , particularly vis - à - vis children . However , GPE had disregarded all their warnings , saying that parents were responsible for attending to the safety of their children . They further noted that at the time of the incident the construction work had been suspended and the site had been unsupervised .

Relying on the information and evidence they had gathered , the experts concluded that GPE had principal liability for the incident ( PERCENT ) on account of his failure to take the necessary safety precautions in and around the construction site in compliance with the relevant laws and regulations . They stressed that the failure to install wooden panels around the construction site was one of the principal reasons for the accident . They further found that the remaining responsibility lay with the deceased children , as they should have been aware of the perils of entering a construction site and approaching a waterfilled hole , even at their young age . The experts considered , lastly , that while the Municipality had a general duty to inspect construction sites and impose penalties for breaches of the laws , they could not be held accountable for failing to conduct inspections , impose safety precautions or issue penalties unless it could be proven with conclusive evidence that the authorities had overlooked the deficiencies on the construction site despite having been aware of them , or had otherwise neglected their duties , which evidence was lacking in the instant case .

On DATE a third expert report was issued by a committee of experts from ORG . The report indicated that neither the construction site nor the hole in which the deceased children had drowned had been surrounded by panels or a wooden fence to prevent unauthorised access . Similarly , there had been no warning signs around the construction site or the hole . According to the expert report , GPE had made the following statements in the aftermath of the incident before the investigative authorities and the trial court :

“ ... [ After digging the hole on the construction site ] , I enclosed the hole with wooden planks . Children kept removing the planks . That is why the hole was not closed off . [ At the time of the incident ] the hole was filled with water following rainfall . On a previous occasion , we had pumped the rainwater out . I was in GPE at the time [ of the incident ] . I have no fault here ... . If I had not been out of town , I would have checked the hole and covered it .

In view of the size and depth of the hole , it was not possible to cover it . We had therefore put planks around it ... There were no warning signs around the hole . I was in GPE when the incident took place , and the construction had stopped while I was gone . The hole filled up with water whenever it rained ... It must have filled up again when I was away , there was no opportunity to remove the water . ”

Referring to the relevant provisions of LAW , the Regulation on Workers’ Health and Occupational Safety in Construction Work and LAW ( Law no . CARDINAL ) in force at the material time ( see “ Relevant domestic law ” , below , for further details ) , the experts from ORG found that GPE and GPE were PERCENT and PERCENT at fault respectively and that no liability could be attributed to the deceased children . They indicated that since the construction work had started , none of the safety measures required under the relevant legislation had been put in place . Moreover , no permission had been obtained for the digging of the hole or the “ shelter ” in question , which had claimed the CARDINAL children ’s lives ; nor had any safety measures been taken around it to prevent accidents . The experts stressed that the dangers posed by the hole had been aggravated when it rained , as the muddy surface made it easier for people to slip and fall in . The responsibility for failure to take any safety measures around the hole or to prevent access to the construction site , despite the knowledge that the site attracted children , fell firstly on the contractor and then on the GPE , which was required to inspect the construction site periodically in order to identify deficiencies and issue the necessary warnings ; the GPE authorities had clearly neglected that duty .

On DATE , relying on the third expert report , ORG held that ORG , who was the director of reconstruction at the GPE ( belediye imar müdürü ) , and the construction owner , GPE , were PERCENT responsible for the incident respectively . Accordingly , the court found the accused guilty as charged .

NORP However , on DATE ORG quashed that judgment , finding that the case should have been examined under PERSON no . DATE , which provided , inter alia , for the suspension of criminal proceedings in respect of certain offences committed before DATE .

Accordingly , on DATE the trial court decided , pursuant to section CARDINAL ) of PERSON no . DATE , that the criminal proceedings should be suspended and eventually discontinued if no offence of the same or of a more serious kind was committed by the defendants within DATE .

On DATE the family members of both deceased children , including the applicant , initiated compensation proceedings before ORG of First Instance against GPE , his construction company and ORG , arguing that they bore joint responsibility for their children ’s deaths . The applicant and his family claimed MONEY ( TRL ) in respect of pecuniary damage and CARDINAL in respect of non - pecuniary damage , together with interest accrued from the date of the incident .

On DATE an expert report was prepared by a mechanical engineer , who was also an expert on occupational safety , and an architect at the request of ORG . After setting out the circumstances in which the incident had occurred , much like in the previous reports submitted to the criminal court , and referring to the relevant provisions of LAW and the LAW on Workers’ ORG , the experts concluded that PERCENT of the responsibility for the incident on account of his failure to take the necessary safety measures on the construction site , such as erecting wooden panels or other fencing around the site , taking special precautions in those parts of the site that presented a danger of falling , placing warning signs as necessary , informing the construction workers of possible hazards at the construction site and employing a guard to control access to the site . They indicated in particular that the unenclosed hole , which had been opened in DATE , had presented a grave danger for the residents and the children in the neighbourhood , which risk increased when the hole filled with water and became slippery on the edges following rainfall . They also stressed that , according to the relevant Court of Cassation jurisprudence , the responsibility of the employer was not limited to putting the necessary safety measures in place to avert the existing and potential dangers on the construction site , but he or she was also required to supervise compliance with those measures .

Turning to the liability of the deceased children , the report held that while it was natural for the children to have been playing out on the street , they should not have entered the construction site and approached the water - filled hole , the dangers of which were obvious bearing in mind in particular that the ground had been slippery at the relevant time . It therefore found that the children bore the remainder of the liability for their own deaths on account of their failure to display the necessary care and diligence .

As for the alleged responsibility of the LOC , the experts stated that the latter had had no involvement in the construction , apart from issuing the necessary permits . Moreover , the accident had occurred within the boundaries of the construction site , and not in a public space or other area under the direct responsibility of the LOC . In such circumstances , the LOC could not be held responsible for the deficiencies on the construction site ; otherwise , the GPE would have to be held liable for all accidents occurring in any construction . They accordingly concluded that the owner of the construction site bore sole responsibility for the site .

On DATE ORG upheld the applicant ’s case in part . The court stated that , after examining the findings of ORG and the expert reports submitted to that court , it had requested a further expert report in order to clarify the conflicting aspects of the previous reports . On the basis of that final report , the court established that the responsibility of GPE and his construction company for the incident was PERCENT . It thus concluded that GPE and the construction company were to pay GPE CARDINAL in respect of pecuniary damage to the applicant and his wife and FAC in respect of non - pecuniary damage to the applicant , his wife and their CARDINAL surviving children as requested , with interest accrued from the date of the incident . The court dismissed the case concerning the LOC , as no fault could be attributed to it on the facts before it .

On DATE the applicant , along with the other claimants , appealed against the decision of the first - instance court . They mainly argued that , despite the GPE ’s liability for the incident having been established in the criminal proceedings , ORG had ordered a new expert report against their wishes , and moreover had disregarded their objections concerning the findings in the said report . The GPE was clearly responsible for the deaths of the CARDINAL children for having tolerated the presence of a large and uncovered water - filled hole in the very centre of the city for DATE on end , yet its responsibility had been disregarded by the first - instance court .

On DATE ORG quashed the judgment with regard to the part concerning the Municipality . It noted that the firstinstance court should have dismissed the case against the Municipality at the outset for procedural reasons , without examining its substance , as the complaints concerning the LOC ’s responsibility to inspect the construction site fell within the jurisdiction of the administrative courts . ORG upheld the rest of the judgment .

Accordingly , on DATE ORG Instance dismissed the case against the LOC . The court also noted that its previous judgment concerning GPE and his construction company had become final and that there was no need to render a new judgment in respect of that part of the case .

The applicant did not appeal against that judgment , which eventually became final on DATE .

On an unspecified date in DATE the applicant , together with other family members , brought compensation proceedings before ORG against the Municipality for the death of their son and brother PERSON due to the alleged negligence on the part of the GPE in the discharge of its inspection duties .

On DATE ORG requested a copy of the case file pertaining to the compensation proceedings initiated by the applicant and others from ORG . Subsequently , on DATE ORG requested the case file of the criminal proceedings against GPE and the municipality officials from ORG . On DATE ORG also requested the applicant ’s lawyer to submit the relevant criminal court decision along with the expert reports submitted to that court .

On DATE ORG Instance informed ORG that the relevant criminal case file could not be found . However , on DATE the applicant ’s lawyer submitted the requested documents to the administrative court . In the meantime , the case file pertaining to the compensation proceedings was also made available by ORG .

On DATE , relying solely on the expert report submitted to ORG on DATE , and without undertaking any analysis of its own as to the responsibilities of the GPE under the applicable legislation and whether it had fulfilled those responsibilities , ORG held that no fault was attributable to the Municipality on the facts of the instant case and thus dismissed the compensation claims of the applicant and his family . ORG emphasised in its judgment that the earlier ruling of ORG , which had apportioned liability for the incident between GPE and his company and the deceased children , had also been upheld by ORG .

On DATE ORG upheld the judgment of the first - instance court , and on DATE it rejected rectification requests lodged by the applicant and his family .

According to a declaration submitted to ORG on DATE by the lawyer who had represented the applicant in the proceedings before that court , the applicant and his family had not received any compensation from GPE and his company , nor had they commenced enforcement proceedings against the latter .


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants were prosecuted in GPE for various crimes . They were arrested and detained while the crimes were investigated and pending trial . Their detention was ordered and extended by the courts . The detention orders were essentially based on the gravity of the charges , the primary grounds being the risk of the applicants’ absconding and interfering with the course of justice . The detention and extension orders used stereotyped formulae , without addressing specific facts or considering alternative preventive measures .

The first applicant was born on DATE and lived , prior to his arrest , in GPE . He was arrested on DATE on suspicion of sexual assault and was placed in detention . He remained in custody while the crime was investigated and pending trial . On DATE the Poronayskiy Town Court of the Sakhalin Region convicted him of sexual assault and sentenced him to DATE and QUANTITY months’ imprisonment . On DATE ORG upheld his conviction on appeal .

The second applicant was born on CARDINAL DATE and lived , prior to his conviction , in PERSON . He was arrested on DATE on suspicion of bribery . On DATE he was released . On DATE he was arrested again and placed in custody . He was released on CARDINAL DATE . On DATE he was convicted of bribery and sentenced to DATE and CARDINAL months’ imprisonment .

The third applicant was born on DATE and lived , prior to his arrest , in GPE , GPE . He was arrested on DATE on suspicion of drug dealing . He remained in custody while the crime was investigated and pending trial . On DATE ORG convicted him of drug dealing and abuse of power , and sentenced him to DATE and CARDINAL months’ imprisonment . On DATE ORG of GPE upheld his conviction on appeal .

The fourth applicant was born on DATE and lived , prior to his conviction , in GPE , GPE Region . On DATE he was arrested on suspicion of murder . On DATE a court remanded him in custody . His detention was subsequently extended . On DATE he was convicted of aggravated murder and was sentenced to CARDINAL years’ imprisonment .


András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

A list of the applicants is set out in the appendix .

s , may be summarised as follows .

The applicants , permanently residing in GPE , are currently working or studying in other countries . In order to vote in the DATE NORP legislative elections , they were expected to appear in person at the NORP embassy or consulate in their country of temporary residence , or else in their constituencies in GPE . As a consequence , they could not exercise their voting rights or only with substantial material difficulties .

Other NORP citizens living abroad who do not have a permanent registered address in GPE were statutorily allowed to vote by post , as provided by section CARDINAL of Act no . ORG of DATE on Electoral Procedure . However , this option was not available under the law to citizens with a permanent address in GPE , such as the applicants .

Act no . PERSON of DATE on the Election of Members of ORG provides as follows :

“ ( CARDINAL ) Voters with residence in GPE may vote for :

a ) CARDINAL candidate in any single - member constituency and

b ) CARDINAL party list .

( CARDINAL ) Voters without residence in GPE may vote for CARDINAL party list . ”

Act no . ORG of DATE on ORG provides as follows :

“ Enrolment in the foreign representation electoral register may be requested by voters who are registered in the polling district electoral register and will be abroad on DATE of the voting . ”

“ The ORG shall enrol in the register of postal voters all voters with no NORP address who are listed in the central electoral register following a request submitted no later than the fifteenth day before the day of voting . The ORG shall indicate in the central electoral register that the voter has been entered into the register of postal voters . ”

“ Voters who vote at a foreign representation shall do so by using the ballot paper of the single - member constituency corresponding to their NORP address and the ballot paper of national party lists . ... ”

“ Voters listed in the register of postal voters cast their vote by post . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in DATE and lives in GPE .

The applicant served his prison sentence in the semi - open and closed sections of GPE prison in the period DATE and DATE . On DATE he was transferred to PERSON prison , where he stayed until his conditional release on DATE . The transfer was made on the basis of a decision issued by the director - general of ORG at the request of the governor of GPE prison . The decision cited overcrowding as the ground for the transfer .

The applicant ’s complaints relate to the conditions of detention in GPE prison only .

From DATE to CARDINAL DATE he was held in the semi - open section in cell CARDINAL ( third floor ) measuring QUANTITY ( including a separate QUANTITY sanitary facility ) . From DATE to CARDINAL DATE and from DATE to DATE he was held in the semi - open section in cell CARDINAL ( third floor ) measuring QUANTITY ( including a separate QUANTITY sanitary facility ) . Due to drug problems he was temporarily held from DATE to DATE in the closed section in cell CARDINAL ( third floor ) measuring QUANTITY ( including a separate QUANTITY sanitary facility ) . All the cells contained , apart from the furniture , CARDINAL sleeping places ( CARDINAL bunk beds and CARDINAL single bed ) . According to the applicant , CARDINAL prisoners were being held in each of the cells during his detention . The Government , however , submitted that the number varied CARDINAL . Each cell had CARDINAL x QUANTITY double casement window , which the prisoners could freely open or close .

During his imprisonment the applicant had CARDINAL consultations with a general practitioner and CARDINAL dental appointments . He attended several interviews and group sessions with a pedagogue .

As regards the general characteristics of the cells , material conditions inside the cells , sanitary conditions and health care , see the judgment in ORG and Others v. GPE , nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE , § § CARDINAL to CARDINAL , DATE .

As to the out - of - cell time in the closed section , the ORG found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities , most of which were to take place in the recreation room . There was , however , CARDINAL ORG - metre recreation room per floor , which was to be used by CARDINAL inmates at most ( NORP and Others § DATE ) .

As to the out - of - cell time in the semi - open section , the ORG submitted that the cell doors in the semi - open section of the prison were unlocked , except from TIME ( on DATE and DATE from TIME ) until TIME ( on DATE , DATE and during holidays until TIME ) . During this time prisoners could move freely in the corridor ( QUANTITY ) , living quarters of co - prisoners or in the indoor or outdoor exercise areas , in accordance with prison rules . The Government alleged that this regime had been in place for DATE .

As regards the cell temperature , the data provided by the Government showed that the average temperature in the cells in TIME ( CARDINAL- TIME ) in DATE and DATE had been approximately CARDINAL , exceeding CARDINAL on DATE .


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in PERSON .

DATE the applicant ’s family operated a grocery with the personal involvement of the applicant . They sold , initially under the excise licence of the applicant ’s mother , merchandise subject to excise tax , that is , alcohol and tobacco products . On average , the turnover of tobacco retail represented CARDINAL of the family ’s business .

The applicant himself obtained a shop - keeping licence in DATE ( see also paragraph CARDINAL below ) . In DATE he qualified as a trader and shop manager . In DATE , he was registered in his own right as a trader of excise goods .

On DATE Parliament enacted Act no . CXXXIV of DATE on ORG of the Youth and on ORG . The LAW was published on DATE . The LAW was subsequently amended on several occasions , and the final version was enacted on DATE . It entered into force on DATE .

According to the LAW , tobacco retail – previously exercised at CARDINAL retail points nationwide – was to become a ORG monopoly ( exercised through a ORG - owned company , ORG Dohány - kereskedelmi PERSON , “ PERSON ” ) , and tobacco retailers would become licensed through a concession tender , advertised on DATE , for CARDINAL retail points per tenderer . In applying for the new concessions , tenderers were required to produce business plans reflecting , inter alia , the new governmental policy to limit to the utmost the access of minors to tobacco products , notably by prohibiting the entry of those less than CARDINAL years of age into shops selling tobacco . Under the new licences , tobacco retail could take place only in shops with separate entrances , with dark shades in the shop windows preventing seeing through , and with only a limited selection of other goods on sale .

The final time - limit for applying was DATE . Entities previously engaged in tobacco retail had no privileges in the tender . The decision about the tenders was to be taken by PERSON .

In the tender , altogether CARDINAL licences were granted nationwide .

The applicant applied for a concession on DATE , for the would - be licence to be used in the family enterprise . The application was signed by the applicant , and witnessed by his wife and their son . The applicant then amended the application according to the upcoming new rules , on DATE . According to the Government , the application was very succinct and in no way developed ; in particular , it contained no appropriate business plan , which was part of the criteria for the tenders . The applicant submitted that no information was ever made available about the assessment of the tender .

On DATE the applicant was informed that he had not obtained a tobacco retail concession . The decision contained no reasons or any indication of the applicant ’s score on the CARDINAL-point tender adjudication score - sheet , and it was not subject to any legal remedy .

The enterprise run by the applicant ’s family was obliged to terminate the sale of tobacco products by the statutory deadline , that is , DATE . Tobacco wholesalers were under a legal obligation to re - buy any outstanding stocks from terminated retailers .

The remaining sales activities of the applicant ’s family enterprise were no longer profitable , entailing the winding - up of the business .

Under the law , no compensation is available for former holders of tobacco retail licences who , by not having been awarded a concession , lost part of their livelihood . The applicant submitted that this was the case of his family ; and that he had , after losing the retail licence , considerable difficulties in supporting his family including a minor son .

NORP The applicant further submitted that others in comparable situations – and in the case of those who had never been doing tobacco retail beforehand , in non - comparable situations – had been granted concessions , which difference in treatment could not be explained by any circumstance other than political adherence . In his view , this was corroborated by the fact that some successful tenderers had obtained CARDINAL concession for multiple selling points .

On DATE ORG declared admissible a number of complaints relating to the same matter .

In decision no . CARDINAL/CARDINAL ( VII.CARDINAL . ) it dismissed these motions on the merits ( see below in paragraph CARDINAL ) , noting in particular that the legislature had aimed to eliminate underage smoking and therefore restricted the accessibility of tobacco retail , measures reflecting GPE ’s obligations under LAW as well as the findings of ORG .

Act no . FAC of DATE on ORG of the Youth and on ORG provides as follows :

“ ( CARDINAL ) Tobacco retail in GPE is an activity falling under ORG monopoly , the exercise of which may be licensed through fix - term concession contracts concluded according to the provisions of this LAW , as well as of LAW no . ORG of DATE on Concessions . ”

“ ( CARDINAL ) If this LAW does not provide otherwise , tobacco retail may only be pursued in tobacco shops . ”

According to Act no . ORG of DATE on LAW and the Special Rules of Trading in Merchandise Subject to Excise Tax ( “ LAW ” ) , as in force until DATE , trading in excise goods was possible in CARDINAL manners : ( a ) subject to an excise licence , in which case the holder of such a licence could sell the products to non - end - consumers ; ( b ) the sale of excise goods to end - consumers was also possible without a specific excise licence , if the owner of the business had an appropriate shop - keeping licence , covering also the sale of the excise goods in question . The relevant provisions of the LAW provided as follows :

“ ( CARDINAL ) Non - excise - licensed free trade of excise goods ... is only allowed in possession of a shop - keeping licence , specified by the law on the operation of shops ... if

a ) the shop - keeping licence is issued for a scope of retail , catering or accommodation activities in the framework of which the law allows the sale of excise goods , and

b ) the non - excise - licensed dealer pursues his or her commercial activity ... in a shop . ”

In its relevant part , Act no . CLI of DATE on ORG ( “ LAW ” ) provides as follows :

“ ( CARDINAL ) In accordance with LAW ( c ) of LAW , any person or organisation affected by a concrete case may submit a constitutional complaint to ORG if due to the application of a legal regulation contrary to LAW in the judicial proceedings :

a ) their rights enshrined in LAW were [ allegedly ] violated , and

b ) the possibilities for legal remedy have already been exhausted or no possibility for legal remedy is available .

( CARDINAL ) By way of derogation from paragraph ( CARDINAL ) , ORG proceedings may also be initiated DATE by exception – relying on LAW ( c ) of LAW , if :

a ) due to the entry into force or the application of a legal provision contrary to LAW , the complainant ’s rights were [ allegedly ] violated directly , without a judicial decision , and

b ) there is no legal remedy capable of redressing the violation of rights , or the complainant has already exhausted the remedy . ”

“ ORG admits constitutional complaints if a conflict with LAW significantly affects the judicial decision [ in question ] or the case raises constitutional law issues of fundamental importance . ”

“ ( CARDINAL ) ORG decides on the admission of a constitutional complaint sitting as a panel ...

( CARDINAL ) The panel examines in its discretionary power the content - related requirements of the admissibility of a constitutional complaint .... ”

ORG analysed the motions mentioned in paragraph CARDINAL above from CARDINAL aspects : whether the impugned legislation infringed the ORG right to protection of their property and whether it breached their right to pursue an entrepreneurial activity .

As regards the property right , ORG held in essence that the ORG business activities in tobacco retail – however long - standing it may have been – did not constitute per se acquired possessions or constitutionally protected legitimate expectations . Prior to CARDINAL July DATE , they had not possessed specific licences for tobacco retail , this kind of licence having been instituted only by the impugned legislation as of that date . Therefore , the legislation did not deprive them of pre - existing , acquired possessions , nor did it annul their shop - keeping licences in general . Moreover , their licences to sell merchandise subject to excise tax ( a licence different from the CARDINAL instituted by the impugned legislation , issued by ORG as a pre - condition for engaging in tobacco retail ) were non - transferable and revocable permits , which did not constitute possessions . ORG emphasised that the legislation did not prevent the complainants from applying for tobacco retail concession under the new system and , if successfully licensed , from continuing their activities .

As regards the complaint concerning the right to pursue an entrepreneurial activity , the Constitutional Court agreed that the ORG activity fell within the scope of constitutional protection . Nevertheless , it underlined that this right did not give an unrestricted or inalienable entitlement to pursue an activity of one ’s choice . In ORG view , the impugned legislation did not prejudice the essence of the right to pursue an entrepreneurial activity , namely it did not permanently deprive the complainants of the possibility to continue their tobacco retail business , let alone to pursue entrepreneurial activities in general . It only subjected that activity to conditions , which they were not unable to meet . ORG found that limitation to be in the public interest and to be sufficiently proportionate to the underlying public health considerations , all the more so since the goods merchandised by the complainants represented well - known health risks and the treatment of smoking - related diseases put a considerable burden on DATE which , in ORG view , enjoyed a wide margin of appreciation in the regulation of the matter in question .

The standing case - law of ORG concerning the lawmaker ’s tort liability was recapitulated by ORG in leading case no . EBDCARDINAL.P.CARDINAL as follows :

“ [ T]he ORG held in leading case no . EBHCARDINAL.CARDINAL that rules of tort liability can not be applied to legislation , that is , to the activity aimed at adopting general and abstract legal rules of behaviour . In leading case no . BHCARDINAL.CARDINAL it also considered that the damage potentially resulting from the entry into force of a law laying down a general rule of normative force does not create a relationship of civil law liability between the lawmaker and the alleged victim of the legislation . ... Furthermore , leading case no . BHCARDINAL.CARDINAL also reflects the jurisprudence according to which the lawmaker can not be held liable for the adoption of normative rules , unless there are additional findings of fact ( többlettényállás ) . ”

In the leading case , such additional findings of fact were constituted by the underlying decision of ORG holding that the law - making process in question had been dysfunctional in that the resultant legal provision was nothing less than an individual decision to the detriment of the complainant , couched in terms of a legislative act .


CASE OF PADURET v. THE REPUBLIC OF MOLDOVA AND RUSSIA

No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Dmitry Dedov;Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Ksenija Turković

The applicant was born in DATE and lives in GPE .

The background to the case , including the NORP armed conflict of DATE and the subsequent events , is set out in ORG and Others v. GPE and GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL , ORG CARDINAL ) and ORG and Others v. GPE and GPE ( [ ORG ] , CARDINAL/CARDINAL and CARDINAL others , § § DATE , ORG DATE ( extracts ) ) .

On DATE the applicant , who is an entrepreneur , was transporting merchandise to an agricultural market in the town of NORP in the self - proclaimed “ GPE ” ( the “ FAC ) . He was stopped by CARDINAL persons presenting themselves as customs officers of the “ FAC who seized his van and the merchandise contained therein on account of his having allegedly failed to register the vehicle . On DATE the “ FAC ” customs authority issued a decision obliging the applicant to pay a fine of QUANTITY ( ORG ) in return for being able to recover his van and merchandise . The applicant paid the fine .

In the meantime the applicant complained to the authorities of GPE about the seizure of his van and merchandise . On DATE the Dubasari prosecutor ’s office initiated a criminal investigation into the facts of the case and several suspects were declared wanted . However , the investigation was suspended in DATE .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant , Mr PERSON , was born in DATE and lives in GPE , LOC .

In DATE the applicant lodged a civil claim seeking to recover excess service fees paid . On DATE ORG of the Volgograd Region heard the case in the applicant ’s presence and rejected his claim . The applicant appealed to ORG . The Government stated that on CARDINAL DATE a judicial summons was sent to the applicant by mail . The applicant did not receive it .

On DATE ORG upheld the judgment of ORG in the applicant ’s absence , without addressing the issue of whether he had been notified .

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

NORP In DATE the applicant brought a defamation action against a third party . On DATE ORG dismissed the applicant ’s claim . The applicant was present and pleaded her case in person . On DATE she lodged a statement of appeal , in which she indicated her post - office box number . The ORG stated that on DATE a judicial summons was sent to the applicant ’s postoffice box . She claimed she had not received it .

On DATE ORG examined and dismissed the applicant ’s appeal in her absence , without examining the issue of whether she had been notified .

NORP In DATE he lodged a civil claim against traffic police , seeking to obtain a copy of a vehicle registration certificate . On DATE the Neyskiy ORG of GPE examined the case in the applicant ’s presence and satisfied his claim in part . Both parties appealed against the judgment . The Government stated that on DATE ORG had sent a judicial summons to the applicant by regular mail and had also called the telephone number listed in his statement of claim . He claimed he had not received the summons or the telephone call .

On DATE the ORG quashed ORG judgment and dismissed the applicant ’s claim in his absence , without examining the issue of whether he had been notified .

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

The applicant brought a civil action against his employer for wrongful dismissal . On DATE the ORG of PERSON heard the case in the applicant ’s presence and refused his claim . On DATE the applicant lodged an appeal with ORG . The Government stated that on DATE ORG sent a judicial summons to the applicant by registered mail . CARDINAL postal notices were then sent to the applicant inviting him to pick up the letter from the post office : on CARDINAL and DATE and CARDINAL DATE . According to the applicant he received the postal notice only on DATE .

On DATE ORG rejected the applicant ’s appeal claim in his absence and did not examine the issue of whether he had been notified .


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

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

The applicant was born in DATE and lives in GPE . At the relevant time , he was a journalist for a local newspaper ORG ( hereafter “ the newspaper ” ) .

On DATE the applicant published an article under the title “ An inhabitant of ORG is wanted by police across the country , having been accused of breaking into the headquarters of the local branch of ORG ” ( “ the ORG ” ) .

The article , accompanied by a photograph of ORG , a suspect at the time , read as follows :

“ S.A , aged DATE , is accused of having stolen CARDINAL television sets and CARDINAL NORP lei ( ROL ) from the local headquarters of the ORG . As he has fled in order to avoid criminal investigation for the offence of aggravated theft , a general search has now been launched by the police ( a fost dat în urmărire generală ) and his photograph is now on the desk of the policemen of the judicial service [ FAC ] throughout the country .

An inhabitant of ORG is wanted by police officers throughout the country , as he is the main suspect in a case of breaking and entering at the headquarters of the ORG in GPE . GPE , aged DATE , is suspected of being one of the organisers of the burglary of the local headquarters of the governing party committed at DATE . TIME DATE was marked by bad luck for the ORG in GPE , as thieves visited their headquarters . On TIME some of the members of this party arrived at the headquarters located in the centre of GPE ... [ and ] noticed that the headquarters had been ravaged . After checking inside , they realised there had been a burglary and that the thieves had stolen CARDINAL televisions and approximately ROL CARDINAL,CARDINAL,CARDINAL . While searching for valuables , the thieves vandalised the offices , breaking all the doors , and yanking the televisions from the electric sockets . Following an investigation by the GPE police , the main suspect was identified as GPE , who has been missing from his place of residence since DATE . ORG see photo ) fled in order to avoid criminal investigation for the offence of aggravated theft and so a general search has been instituted and his photograph has been sent to judicial service police officers throughout the country . In a case where someone tries to avoid ‘ getting ORG [ pârnaie ] by fleeing , despite being sought by the police , a countywide search is launched . If the person is not found within DATE , the police launch a national search . In a case where there is information that the person has left the country , an international arrest warrant is issued , and the arrest of the fugitive is only a matter of time . ”

Following the publication of the article , the father of ORG sent a letter to the newspaper , which read as follows :

“ To the editor of ORG ,

The undersigned DATE found out from your newspaper that there was a national and local search order for my son , GPE , for the offence of aggravated theft . Regarding the [ content of the ] article , I can tell you that [ at the time ] my son was neither in the country nor in GPE as he was in GPE . The employees of ORG promptly informed me that there had been a mistake and that the general search for my son had been called off . The document confirming this information is available to the public from the GPE judicial service .

My wish would be to have the article retracted . ”

NORP This letter was published in the newspaper on DATE .

On DATE S.A. lodged with ORG a criminal complaint against the applicant for the offence of defamation , as prescribed at the time by LAW . After explaining that at the time of the theft he was in GPE and thus it was impossible for him to have participated in the alleged offence , he mentioned that once his father had found out about the article , he had written to the newspaper , asking that it be retracted . The letter was published unedited , but nothing else was done since then .

ORG considered that the article contained serious allegations which considerably affected his public image , causing him personal suffering .

He therefore requested that those responsible be convicted and ordered to pay him non - pecuniary damages in the amount of ROL CARDINAL,CARDINAL,CARDINAL .

In his defence the applicant submitted that the information concerning the general search for ORG , as well as the photograph of ORG , were given to him on DATE by the GPE judicial service and thus there had been no reason for him to doubt it . He contended that at the time of the publication , the general search order issued in respect of GPE was valid .

He further argued that he did publish a retraction in the newspaper , namely the letter of ORG father .

On DATE , the head of ORG informed the first - instance court that :

“ In response to your letter in which you enquire whether on DATE a general search order was outstanding against S.A. ... I wish to inform you that on DATE by Order no . DATE of ORG of ORG a general search order was issued in respect of this person as he was attempting to avoid criminal investigation while under suspicion of theft . The measure was revoked by Order no S/CARDINAL of ORG of the NORP Police on DATE , after clarification of ORG ’s situation ” .

On DATE the court acquitted the applicant of the charge of defamation ; however it ordered the applicant to pay , jointly with the newspaper , the sum of ROL CARDINAL,CARDINAL,CARDINAL to S.A. The relevant excerpts from the judgment read as follows :

“ Taking into account the fact that the applicant obtained information concerning the suspect from the judicial office within ORG , he can not be found to have deliberately ( mens rea ) defamed the plaintiff ...

Under the civil limb of the action , defamation concerns public communication of a distorted , negative image of a person , which is likely to cause him or her personal suffering and damage to reputation , leading to changes such as social embarrassment and injury to self - esteem . The first - instance court considers that publishing the article in the newspaper caused damage to the standing of the civil party ...

Moreover , it must be noted that although the civil party ’s father notified the newspaper that the facts published about his son were false , the newspaper did not publish a retraction of the article written by the defendant . ”

By a final judgment of DATE ORG rejected an appeal by the applicant and upheld the first - instance court ’s judgment .

The court stated in its reasoning the following :

“ Even though there is no mens rea as far as the offence of defamation provided for in LAW is concerned , given the source of information at the date of the publishing of the article , the defendant ’s obligation to pay compensation to the civil party can not be set aside . This is because following the discovery of the error he did not publish a retraction in order to try to rectify it . The article caused non - pecuniary damage to the civil party which can be repaired only in the manner established by the first - instance court ” .


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

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

NORP In DATE the applicant was charged with murder of PERSON was appointed to represent him during investigation and trial .

On DATE the ORG held a preliminary trial hearing . The applicant opted for a jury trial . In support of his request , PERSON . stated as follows :

“ [ The applicant ] has committed a particularly serious offence which might entail a lengthy custodial sentence . ... I support the [ applicant ’s ] request . ”

On DATE the court completed the examination of evidence . Both prosecution and defence made their closing arguments . In his statement , PERSON . called the applicant “ a robber and a drunkard ” . The presiding judge instructed the jury to disregard the counsel ’s statement as referring to the applicant ’s character .

On DATE the jury delivered a guilty verdict .

On DATE the applicant asked the court to replace counsel PERSON . alleging that the defence carried out by him had not been effective . The court dismissed the applicant ’s request .

On DATE ORG found the applicant guilty of murder and sentenced him to DATE imprisonment .

On DATE the applicant asked ORG to appoint legal counsel to represent him before the appeal court . On DATE the court refused to appoint a lawyer referring to the relevant legal provisions that did not provide for a right to have a state - appointed lawyer before the appeal court .

On DATE ORG of GPE upheld the judgment of CARDINAL DATE on appeal . According to the official documents , the applicant was not provided with legal assistance .

On DATE the ORG of ORG quashed the appeal judgment of DATE by way of supervisory review . The court noted that the applicant had not been provided with legal assistance in the appeal proceedings and remitted the matter for fresh consideration to the appeal court . The applicant did not attend the hearing . He was represented by counsel O.

On an unspecified date the applicant was transferred to GPE . Counsel PERSON was appointed to represent him . From CARDINAL to CARDINAL DATE NORP studied the case - file . On CARDINAL and DATE he met with the applicant at the remand prison .

On an unspecified date the applicant submitted a revised statement of appeal .

On DATE ORG held a new appeal hearing . According to the applicant , he participated in the hearing by means of a video link . NORP was present in the courtroom . He did not submit a statement of appeal and made oral submissions to the court . Having examined the applicant ’s appeal , the court upheld , in substance , his conviction . The court also dismissed as unsubstantiated the applicant ’s complaint about the alleged ineffectiveness of the legal assistance provided by counsel PERSON . In this connection , the court noted that the applicant had consented to be represented by PERSON . both during the investigation and trial . The court also concluded , on the basis of the trial record , that PERSON . had taken an active part in the trial . In his closing argument , PERSON . had supported the applicant ’s non - guilty plea and argued that the applicant had not been proved guilty . Lastly , the court took into account that , prior to the jury verdict , the applicant had not complained about the quality of the defence provided by PERSON .

On DATE ORG dismissed the applicant ’s supervisory review complaint against the judgment of CARDINAL DATE .