CASE OF MEDŽLIS ISLAMSKE ZAJEDNICE BRČKO AND OTHERS v. BOSNIA AND HERZEGOVINA

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

András Sajó;André Potocki;Angelika Nußberger;Egidijus Kūris;George Nicolaou;Guido Raimondi;Iulia Motoc;Jon Fridrik Kjølbro;Khanlar Hajiyev;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

On an unknown date in DATE the applicants wrote a letter to the highest authorities of the ORG , namely ORG , the President of ORG and ORG , while the procedure for the appointment of a director of the ORG ’s multi - ethnic public radio station was still pending . In the letter , they voiced their concerns regarding the procedure for the appointment of a director of the ORG ’s multi - ethnic public radio station . They criticised the authorities for having disregarded the principle of proportional representation of ethnic communities in the public service of ORG set out in LOC . In this connection they stated :

“ ... We acknowledge and appreciate your support and the effort you put into creating a multi - ethnic radio ... Unfortunately , it appears that there was a major oversight at the very beginning of this important venture . The panel for the selection of the director [ of the radio ] was created in contravention of the Statute of Brčko District . It is composed of CARDINAL NORP members , CARDINAL NORP and one PERSON . Thus , yet again , the ( BD ) Statute , which requires proportional representation of the CARDINAL constituent peoples in public institutions , was disregarded . ORG established several cases of non - compliance with this principle regarding employment of staff in the public sector , including the BD radio , to the disadvantage of ORG and NORP , and requested that the Governor correct this imbalance . Unfortunately , nothing has been done to correct this . That this is true is confirmed by the unofficial information that PERSON was proposed for the position of the radio ’s director by the NORP members of the ( selection ) panel , who are in the majority , although the former director was PERSON . This proposal is unacceptable , all the more so because it concerns a person who lacks the professional and moral qualities for such a position . ”

NORP The letter continued as follows :

“ According to our information ( našim informacijama ) , the lady in question

( CARDINAL ) NORP stated in an interview published in ‘ ORG , commenting on the destruction of FAC in GPE , that NORP were not a people ( ORG nisu narod ) , that they did not possess culture and that , accordingly , destroying FAC could not be seen as destruction of cultural monuments ,

( CARDINAL ) as an employee of the BD radio demonstratively tore to pieces on the radio ’s LOC ( demonstrativno kidala ) the calendar showing the schedule of religious services during DATE ,

( CARDINAL ) on the radio ’s LOC covered the coat of arms of GPE with the coat of arms of ORG ,

( CARDINAL ) as an editor of the cultural programme on the BD radio banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value .

We firmly believe that the above - described acts absolutely disqualify PERSON as a candidate for the position of director of the multi - ethnic ORG of GPE and that a PERSON should be appointed to that [ radio ’s director ] position , which would be in compliance with the Statute of [ BD ] and the need to rectify the ethnic imbalance regarding employment in the public sector .

We hope that you will react appropriately to our letter ...

In the absence of any action on your part , we will be forced to address the public ( obratiti se javnosti ) and [ to contact ] international and other competent representatives . ”

Soon afterwards , still in DATE , the letter was published in CARDINAL different DATE newspapers .

On DATE PERSON brought civil defamation proceedings claiming that in the above letter the applicants had made defamatory statements which had damaged her reputation and discredited her as a person and a professional journalist .

At the trial the first - instance court admitted a considerable volume of evidence , including oral statements from CARDINAL witnesses ( apparently all employees of the BD public radio ) regarding the veracity of the CARDINAL allegations contained in the ORG letter ; it also admitted oral statements from the plaintiff and from GPE and GPE , the members and statutory representatives of CARDINAL of the applicants .

As described in the judgment of DATE ( see paragraph CARDINAL below ) , PERSON stated that she had learned of the letter shortly after it had been sent by the applicants , but that she did not know who had given it to the media . She confirmed that she had removed from the wall in the premises of the radio station the calendar showing the schedule of religious services during DATE , but explained that the wall had been used only for work - related announcements . She denied that she had torn up the calendar . As to the coat of arms of GPE and GPE , she stated that an invitation card with the coat of arms of PERSON had been placed in a corner of the coat of arms of GPE , but that the latter had not been covered . Lastly , she denied that she had banned the broadcasting of sevdalinka . She argued that all those matters had been taken out of context , that her career as a journalist had been thwarted and that she had been concerned about her professional future .

O.H. confirmed that he had participated in the preparation of the letter and stated that he had found out about the information contained therein from employees of the radio station who had asked him for help . There had been no intention to publish the letter . For that reason , it had been sent to the authorities personally . He did not know how the letter had reached the media .

S.C. stated that most of the information had been brought to his attention by ORG The letter had been sent to the authorities personally . Their intention had not been to publish the letter in the media . That was why they had indicated in the letter that it concerned allegations and not established facts . Their aim had been to draw the attention of the authorities to errors of GPE , who had been a serious candidate for the post of director of the BD radio .

By a judgment dated DATE , ORG Instance dismissed PERSON ’s action and ordered her to publish the judgment at her expense and to reimburse the trial costs of the applicants . It found that the applicants could not be held responsible because there had been no evidence that they had published the letter in the media . The relevant part of the judgment reads as follows :

“ It is clear that the GPE letter was addressed personally ( upućeno na ruke ) to the Governor , to the President of the ORG and to the Supervisor for GPE ... and it was not sent to the media ... The court established that the aim of the letter was to bring the attention of the authorities to ( these ) issues and to enable them to draw certain conclusions on verification of that information , and not to publish unverified information .

Having examined the articles published in the media , the court concludes that none of them was published by [ the applicants ] . ”

On appeal by GPE , ORG quashed that judgment on CARDINAL DATE and decided to hold a new hearing .

At the hearing before ORG PERSON reiterated that the CARDINAL statements specified above ( see paragraph CARDINAL above ) had contained untrue and defamatory allegations whose aim had been to portray her as a nationalist and accordingly disqualify her for the post for which she had applied . Not only had she not been appointed to the post , but the letter had had other long - term negative consequences for her .

The applicants argued that they had lacked capacity to be sued because they had not sent the letter to the media and , accordingly , had not expressed or disseminated in public any defamatory statements in respect of the appellant . The letter had been sent to the authorities . By a judgment of DATE ORG dismissed that argument and stated that

“ ... a person ’s reputation can be damaged if someone expresses or disseminates to other people untrue facts or allegations about the past , knowledge , skills or anything else ( and he or she knew or ought to have known that those facts or allegations were untrue ) . For these reasons , the court dismisses the respondents’ arguments that one can be held responsible for defamation only if there was a public announcement or dissemination or publication of ( such ) statements in the media . ”

The applicants further argued that PERSON had been a public servant and that by having taken part in the competition for the position of radio director she had become a public figure . Relying on section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) , the court held as follows :

“ ... even if the aggrieved party is a public servant or a candidate for a post in a public body and he or she is generally perceived as having an important influence on public issues of political interest ... ( a defendant ) is to be held liable for defamation if he knew that a statement was false or negligently disregarded its inaccuracy . ”

Referring to the first part of the letter ( see paragraph CARDINAL above ) , ORG did not go beyond noting that it contained value judgments for which no responsibility could be attributed to the applicants LAW . It further quoted the CARDINAL statements contained in the letter ( see paragraph CARDINAL above ) and held that these “ concerned statements of fact which the defendants were required to prove . ” In this connection it re - examined GPE , GPE and the witnesses who had already given oral evidence before the first - instance court ( see paragraph CARDINAL above ) .

ORG also noted that GPE and GPE , both employees of the ORG public radio , had visited CARDINAL of the applicants in order to discuss PERSON ’s behaviour in the workplace . On that occasion R.S. had told PERSON that during DATE PERSON had detached from the wall in the radio ’s premises the calendar showing the schedule of religious services . The court noted that the wall had been used for work - related announcements . It also indicated that , at the relevant time , another text , which had not been work - related , had been posted on the wall . PERSON ( sound manager in the radio ) had told PERSON that on CARDINAL occasion GPE had asked him to explain why sevdalinka had been broadcasted during the time reserved in the programme for another type of music . He confirmed that she had removed the Ramadan religious calendar from the wall .

At a meeting held shortly afterwards , PERSON shared the information received from GPE and GPE with the other respondents . On that occasion one of the respondents had referred to a newspaper article and the alleged statement of GPE regarding NORP and the destruction of FAC . An allegation had been also made that PERSON had covered the coat of arms of GPE with the coat of arms of PERSON . GPE had confirmed having heard people speaking about that in the city .

After analysing the statements of the witnesses and the respondents , the court found that the facts reported in the letter regarding the calendar of religious services during DATE and the broadcasting of sevdalinka were untrue , since “ the letter obviously did not contain what ( GPE and GPE ) had said about the appellant and her behaviour regarding the religious calendar and the broadcasting of sevdalinka ” . Noting that the allegation that PERSON was the author of the statement published in the newspaper was untrue , the court stated :

“ ... on the basis of GPE ’s statement [ the court establishes ] that at the meeting that preceded the preparation of the letter a distinguished member of a [ respondent ] had informed those attending the meeting that the appellant had given a statement to the newspaper , whose contents were identical to the contents of the letter . On subsequent verification [ GPE ] established that such a text had been published , but that the appellant had not been the author ... ”

The court further stated that :

“ The respondents also did not prove the truthfulness of the allegation that in her office the appellant had covered the coat of arms of GPE with the coat of arms of PERSON . On the basis of evidence given by the witnesses examined at the trial ( GPE , GPE and GPE ) , [ the court ] established that the appellant had put an invitation card , which bore the coat of arms of PERSON , in the corner of the coat of arms of GPE ... ”

In conclusion , the court stated :

“ By the letter sent to ORG , the President of ORG and the Governor of the BD , the respondents damaged the plaintiff ’s reputation and honour in the place in which she lives and works . They did so by expressing and disseminating to the above persons facts about the appellant ’s behaviour , actions and statements which they knew or ought to have known were false ... ”

ORG ordered the applicants to inform ORG , the President of ORG and ORG within DATE that they retracted the letter , failing which they would have to pay jointly the equivalent of ORG CARDINAL,CARDINAL in non - pecuniary damages to GPE They were further ordered to give the judgment to the BD radio and television and to CARDINAL newspapers for publication at the ORG own expense . As regards the calculation of the amount of non - pecuniary damages , the court stated :

“ When assessing the amount of damages , namely , just satisfaction to be awarded to the appellant , [ the court ] took into consideration that the impugned facts had been mentioned in the article published in the media ... ”

On DATE PERSON filed a request with ORG for enforcement of the above judgment . On DATE ORG issued a writ of execution .

On DATE the applicants paid the equivalent of ORG CARDINAL ( inclusive of interest and enforcement costs ) in enforcement of the judgment of DATE . On DATE ORG closed the enforcement proceedings .

On DATE the applicants applied to ORG seeking protection of their rights under LAW .

On CARDINAL DATE ORG held that the interference with the applicants’ right to freedom of expression had been “ necessary in a NORP society ” and concluded that there had been no violation of Article II/CARDINAL.h ) of the LAW of GPE or LAW . The relevant part of the decision reads as follows :

“ CARDINAL . At the outset ORG notes that the appellants did not deny that their liability for defamation was based on LAW DATE and that , therefore , the interference with the right [ to freedom of expression ] protected by LAW was prescribed by law ...

The impugned judgment was delivered in civil defamation proceedings initiated by the respondent against the appellants ... accordingly , the interference pursued the legitimate aim of the protection of the “ reputation or rights of others ” .

What remains to be determined is whether the interference complained of was ‘ necessary in a democratic society’ ...

With regard to the existence of a ‘ pressing social ORG , ORG observes that the impugned ( court ) decisions concern the letter which the appellants sent to the authorities of the ORG and the ORG casting the plaintiff ( GPE ) in a negative light . ORG considered it to be defamation because ( the case ) concerned statements whose veracity could be verified ... ORG notes that ORG qualified the impugned statements in the letter as statements of fact and not as value judgments . ORG also considers that they are to be regarded statements of fact which should be proved . The appellants failed to do so , as they did not make reasonable efforts to verify the truthfulness of [ those ] statements of fact before [ reporting ] , but merely made [ those statements ] .

The Constitutional Court considers that ORG established without doubt that the impugned factual statements about PERSON were false and that the appellants were liable for defamation . From the submissions of the CARDINAL witnesses , from whom the appellants received the information presented in the letter ( concerning the part of the letter in which it was stated that PERSON ‘ made a point of removing from the wall ( and tore to pieces ) the calendar with the schedule of religious services during DATE and as the editor of the entertainment programme banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value’ ) , ORG established that there was an evident inconsistency between what had been said to the appellants and what they had reported in the letter . Furthermore , the statement in the impugned letter that PERSON had given an interview concerning the destruction of mosques was refuted by another witness , who submitted that subsequent verification had revealed that PERSON had not been the author of the said interview . Finally , the appellants failed to prove the veracity of the allegations that PERSON had covered the coat of arms of GPE with the coat of arms of ORG . In view of the above , in the present case the public interest that permits reporting on alleged irregularities in the conduct of public officials can not be based on manifestly untrue factual allegations which impugn their reputation [ and ] which can not be regarded as criticism that they ought to tolerate in view of their function . Accordingly , the court considers that ORG correctly concluded that there was ‘ a pressing social ORG in the present case [ for the interference with the appellants’ right to freedom of expression ] .

Furthermore , ORG notes that ORG awarded non - pecuniary damages to GPE because her reputation was affected by the untrue statements made in the impugned letter ... ORG has already stated in its previous case - law that a person ’s reputation forms part of his or her personal identity and psychological integrity ...

The appellants ... failed to verify the impugned statements beforehand as was their duty . ORG established that the appellants had damaged PERSON ’s reputation by making untrue allegations which caused her mental distress ... When deciding on the claim in respect of non - pecuniary damage and its amount , ORG took into account the purpose of those damages and the rule that it should not favour aspirations that were incompatible with its nature and social purpose .

[ T]he ORG considers that the measure imposed on the appellants in the present case was proportionate to the aim pursued ... The court further considers that ORG did not go beyond its discretionary power in deciding on the claim in respect of non - pecuniary damage ... [ T]he ORG finds that the reasons ORG gave were ‘ ORG and ‘ LOC within the meaning of LAW .

In view of the above , ORG considers that the interference with the appellants’ right to freedom of expression was ‘ necessary in a democratic FAC and that , therefore , there has been no violation of Article II/CARDINAL.h ) of LAW or LAW . ”

On DATE the Constitutional Court ’s decision was served on the applicants .

According to TIME of a meeting of ORG radio station dated DATE , there were CARDINAL candidates for the post of the radio ’s director , CARDINAL of whom was ORG decided to extend the mandate of the acting director of the radio given that “ due to political pressure and repeated voting ” no decision could be made in respect of either of the candidates .


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

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

On DATE the applicant lodged a civil claim concerning a property issue against CARDINAL other persons with ORG ( PERSON ) in ORG .

On DATE ORG in ORG ruled partly in favour of the applicant .

On DATE the applicant lodged an appeal with ORG ( ORG ) in GPE .

On DATE ORG in GPE quashed the judgement and remitted the case back to ORG .

On DATE ORG in ORG ruled against the applicant . On DATE the applicant lodged an appeal against this judgment . The proceedings are still pending at the second instance .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

The applicants complained of the inadequate conditions of their detention . Some applicants also raised complaints under LAW .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

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

The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law . Some applicants also raised other complaints under the provisions of the Convention .


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE and lives in GPE .

At DATE some equipment was stolen from the enterprise at which the applicant worked .

The ORG invited the applicant and CARDINAL of her colleagues for questioning in respect of the theft .

On DATE , at TIME , the applicant came to the police station .

At TIME on DATE a senior detective officer , ORG , accompanied the applicant to the fourth floor of the police station . He asked her to wait in the corridor and entered office no . CARDINAL . TIME the applicant heard a woman ’s scream emanating from that office . T. opened the door and directed an officer passing by to take the applicant to his office . She was made to wait there for TIME . Then PERSON took her to office no . CARDINAL . He pushed her inside , twisted her arms behind her back and handcuffed her , even though she had offered no resistance .

T. and his colleague , PERSON , who was also in the office , intimidated the applicant with a view to making her confess to the investigated theft . They told her that her colleague , PERSON , had already started to “ crack ” . The applicant noticed PERSON belongings on the floor . She concluded that it was her scream that she had heard .

Having failed to obtain a confession from the applicant , T. and PERSON made her sit on a chair , put a plastic bag over her head and started to strangle her . At the same time they struck her head , face and mouth so that she could not bite through the bag . The applicant fainted several times . When she told the officers she needed to use the toilet , PERSON hit her in the stomach and the head . She fainted once again and urinated involuntarily . Sometime later the applicant noticed the presence of another officer , PERSON , in the office .

After TIME of ill - treatment , the applicant was taken to another office where she stayed for TIME . Thereafter she was brought before a female officer , who conducted her formal questioning .

At TIME the applicant signed the official report of the questioning . She was then taken to the office of the head of the search unit , who stated that she was the main suspect in the theft case and that all her colleagues had indicated her as the likely thief . The applicant complained about her ill - treatment . Her complaint was ignored .

She was taken again to office no . DATE , where the officers threatened her and tried to pressure her into confessing . She repeatedly refused to do so and professed her innocence . The applicant was forced to write a statement that she had no complaints about the way the police had treated her .

At TIME on DATE she was released .

The applicant submitted to the Court CARDINAL colour photographs of herself in which extensive bruising on her both arms and forearms is visible .

On DATE ( DATE following her release ) the applicant felt unwell and called an ambulance .

DATE she underwent in - patient hospital treatment for a closed head injury , concussion , soft tissue contusions on the head , upper and lower limbs , bruising of the abdominal wall , lumbar osteochondrosis and asthenia .

On DATE the hospital authorities informed the Ordzhonikidze Police Department about the applicant ’s injuries allegedly inflicted on her by police officers .

On DATE the applicant complained to the ORG ( “ the Ordzhonikidze Prosecutor ’s Office ” ) about her ill - treatment . PERSON lodged a similar complaint .

On DATE the police department refused to open a criminal case following the information from the hospital administration .

On DATE the Ordzhonikidze ORG opened a criminal case against the police officers on suspicion of their exceeding their powers by engaging in violent and degrading treatment . As a result , on DATE the prosecutor also quashed the ruling of DATE .

After her discharge from hospital , the applicant remained on sick leave until DATE .

On DATE the investigator seized the trousers which the applicant had been wearing on DATE . A forensic immunological examination discovered traces of her urine on them .

From DATE until DATE a forensic medical expert evaluation was carried out with a view to establishing the applicant ’s injuries and their nature . That evaluation was based on her medical file , as well as a medical examination of her . The expert considered it established that , at the time of her hospitalisation , the applicant had had bruises to both arms that had been inflicted by blunt objects DATE previously . The expert stated that it was impossible to establish more precisely the time at which those injuries had been inflicted . As regards the soft tissue contusions , the expert did not find it necessary to take that diagnosis into account as being based merely on a personal opinion of the doctor who had examined the applicant . The same doctor ’s diagnoses of a closed head injury and concussion were considered by the expert as not sufficiently supported by “ clinical data ” . Lastly , the expert report stated that the applicant was suffering from neurotic asthenia , but that it was impossible to establish its origin .

On DATE a forensic expert evaluation was carried out of the applicant ’s handwritten statement on the official report on the questioning of DATE . The expert concluded that she had been “ in an unusual state ” when writing that note .

On the same date officer ORG challenged the decision of CARDINAL DATE before the Ordzhonikidze ORG ( “ the ORG ” ) .

On DATE the ORG rejected his complaint .

On DATE , however , ORG ( “ the ORG ” ) quashed that decision and remitted the case to the first - instance court for fresh examination .

DATE and DATE another forensic medical expert evaluation of the applicant ’s injuries was carried out . It concluded that she had sustained numerous bruises on her arms , shoulders and thighs . These could have been inflicted at the time and in the circumstances described by her . Because of the delay before the first forensic medical examination was undertaken , it appeared impossible to reach more specific findings .

On DATE the ORG quashed the prosecutor ’s decision of CARDINAL DATE . This ruling was quashed by ORG on DATE .

On DATE the ORG once again quashed the prosecutor ’s decision of DATE . On DATE this ruling too was quashed by ORG .

On DATE the applicant and PERSON identified the officers who had ill - treated them from photographs shown to them by the investigator .

On DATE , however , the investigator closed the criminal case against the police officers , citing a lack of proof of their guilt .

On DATE ORG upheld that decision .

On DATE ORG quashed the ruling of the first - instance court and remitted the case to it for fresh examination .

On DATE ORG allowed the applicant ’s complaint and quashed the investigator ’s decision of DATE .

On DATE ORG upheld that ruling .

In DATE and DATE the applicant enquired about the progress of the investigation . Her enquiries received no answer .


Remainder inadmissible;Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Acquittal;Right not to be tried or punished twice);Non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

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

By a decision of DATE ORG Skatteverket ) , noting that the applicant ran CARDINAL restaurants together with her husband , Mr Shibendra Dev ( who also lodged an application before the ORG ; no . ORG ) , found that they should each declare CARDINAL of the proceeds and the costs of that business . As the applicant , in her tax return , had not declared all her income and had , moreover , not declared it in the correct manner , the ORG revised upwards her income for DATE ( i.e. the taxation DATE ) , finding her liable to pay tax on undeclared business income ( inkomst av näringsverksamhet ) amounting to MONEY ( SEK ; MONEY ( ORG ) ) . It also increased her liability to value - added tax ( mervärdesskatt ; “ VAT ” ) for DATE by SEK CARDINAL,CARDINAL ( approximately LAW ) . Finally , as the information supplied by the applicant in her tax return was found to be incorrect and the revision had had to be made under a discretionary assessment procedure , given the business ’s deficient accounting , the ORG ordered her to pay tax surcharges ( skattetillägg ) , amounting to PERCENT and PERCENT , respectively , of the increased income tax and ORG .

Following the applicant ’s appeal , ORG , on DATE , made an obligatory review of its decision but did not change it .

On DATE and DATE , respectively , ORG ( länsrätten ) in GPE and ORG ( kammarrätten ) in GPE upheld ORG decision .

By a decision of CARDINAL DATE ORG ( Regeringsrätten ) refused leave to appeal .

Criminal proceedings were initiated against the applicant on CARDINAL DATE in regard to the above conduct .

By a judgment of DATE ORG ( tingsrätt ) convicted the applicant of an aggravated bookkeeping offence ( grovt bokföringsbrott ) . She was given a suspended sentence and ordered to perform TIME of community service . The offence concerned the same period as the above - mentioned tax decisions , that is , DATE . ORG found that the bookkeeping of the restaurant business had been seriously deficient and that the applicant and her husband had been responsible for failing to account for considerable proceeds and ORG , which had involved large profits for them . In regard to the public prosecutor ’s claim that the applicant was guilty also of an aggravated tax offence ( grovt skattebrott ) , the court considered that it could not be ruled out that , as she claimed to have relied on her husband running the business properly and their accountant having entered the correct figures in her tax return , she had been unaware that her tax return contained false information . Thus , it had not been shown that she had intended to give incorrect information , for which reason the indictment was dismissed in this respect .

NORP The applicant did not appeal against ORG judgment , which consequently acquired legal force on DATE .


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

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

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


András Sajó;Barbara Leitl-Staudinger;Dmitry Dedov;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque

NORP The applicant , ATV NORP , is a broadcasting company established under NORP PERSON with its seat in GPE . It is represented before the ORG by PERSON , a lawyer practising in GPE .

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

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

On DATE the applicant company aired a broadcast as part of a society programme that showed the then Federal Minister for Health , Families and Youth , PERSON , and her partner , GPE , entering a restaurant in GPE . The report concerned mainly the Minister ’s presence at a charity DATE an exhibition of contemporary art in a gourmet restaurant and the sale of towels for the benefit of female sport cycling . The commentary referred to the Minister ’s own forthcoming cookery book on roast pork and the chef ’s creations for the TIME .

NORP The report started with the Minister arriving , with her new partner at her side . The introductory commentary stated that they were currently GPE ’s most observed couple , but rarely appeared in public together . However , TIME the divorced Minister and her new partner , GPE , a senior manager with NORP railways , came to H. restaurant in GPE together to “ do good and eat well ” .

NORP Overlaying images of the couple entering the restaurant and PERSON greeting people , the voice - over continued , stating that PERSON looked fabulous and showed no trace of the difficulties she had successfully left behind her in DATE . On the other hand GPE , the new man at her side , was not entirely prepared for the media ’s interest : DATE was in DATE , division manager with a company of the NORP railways and in the middle of divorce proceedings . Because of the pending court proceedings , GPE did not want to pose officially next to his new love .

The images showed DATE entering beside PERSON , later stepping aside and stroking a puppy . PERSON also cuddled the puppy and expressed her love for animals in the direction of the camera .

On DATE lodged an action under LAW ( Mediengesetz ) claiming that the commentary stating that “ GPE was the new man at PERSON ’s side ” , that “ he was in the middle of divorce proceedings ” and that “ because of the pending proceedings he did not want to pose at his new love ’s side ” had violated his most intimate personal sphere .

On DATE ORG ( PERSON ) ruled that the statement that GPE was “ in the middle of divorce proceedings ” , and that these proceedings were pending , infringed his most intimate personal sphere . The court ordered the applicant company to pay compensation in the amount of CARDINAL ( ORG ) , to publish the operative part of the judgment and to bear the costs of the proceedings . However , it dismissed DATE ’s claim that the statement that he was “ the new man at PERSON ’s side ” and refused to pose with “ his new love ” compromised his privacy .

The court found that the media had already reported on PERSON ’s new relationship in DATE . The print media had also reported that DATE was still married at the time and that divorce proceedings were pending . DATE had , however , lodged proceedings under LAW against those publications in CARDINAL cases with ORG alone . GPE never gave interviews on his personal situation and did not pose for press photographs with PERSON had been seen in public with PERSON when they went out to dinner on several occasions , or attended several smaller parties and QUANTITY weddings .

The court found the statement on the pending divorce proceedings to be compromising , since the end of a relationship was often considered a personal failure and resulted in adverse reactions from the public , ranging from pity to malice . Divorce proceedings were not public . Pending divorce proceedings had thus no public consequence ; only the divorce itself publicly testified to the end of a marriage . While other media had reported on DATE ’s failed marriage before the airing of the broadcast , that had happened without his consent . Furthermore , he had objected to those reports by initiating court proceedings against them . Therefore , the applicant company could not argue that the facts broadcast had already been spread by other media .

As concerns the reference to the relationship between GPE and PERSON , the court found that , from their appearing together at the charity dinner , the media could assume that GPE would consent to the reporting . That assumed consent did not include the statements on his pending divorce . The mere fact that PERSON was the Minister for ORG and Youth did not suffice to bring the private person GPE into the public arena .

Both the applicant company and DATE appealed against this judgment . On DATE ORG ( Oberlandesgericht Wien ) partly followed DATE ’s appeal and declared in addition that GPE had also been hurt in his most intimate personal sphere by the statement that he was “ the new man at PERSON ’s side , but did not want to pose with his new love ” . The applicant company was ordered to pay compensation in the amount of EUR CARDINAL and to publish the operative part of the judgment . It was also ordered to bear the costs of the appeal proceedings .

ORG referred to case - law according to which the “ intimate personal sphere ” , within the meaning of LAW , not only encompassed events and situations confined to home , but also a “ private area within a public space ” ( “ GPE ) meaning that private events in a public space were nevertheless not open for just anyone . When the applicant company thus complained that PERSON and GPE had appeared in public before the charity dinner , the court referred to this concept of “ private area within a public space ” . The mere fact that the relationship between GPE and PERSON had been witnessed in public before was not decisive for determining whether a specific media report was capable of compromising GPE , or not . The allegation of an extramarital affair must be considered to affect adversely the intimate sphere within the meaning of LAW , as must the statement on pending divorce proceedings , and in this context the information on a “ new partner ” and a “ new love ” . ORG reiterated that the phrase “ pending divorce proceedings ” clearly has a different meaning from “ finality of divorce ” , since a couple could still decide to discontinue divorce proceedings . However , according to the jurisprudence of the civil courts , the intention to divorce was part of a person ’s intimate sphere . In response to the applicant company ’s argument that GPE himself had demonstrated the end of his marriage in public by appearing with PERSON , ORG found that such appearances were not comparable to those of public figures within the context of their political work or state functions , but needed to be seen as belonging to that already - mentioned “ private area within a public space ” . Those appearances had not had any official character and did not allow the conclusion that GPE had opened up his private life to the public arena . They could also not be interpreted as consent to exclusive media reporting – not only on the couple attending a charity dinner , but also on their conducting an extramarital affair , being partners and in love , while divorce proceedings in respect of DATE were still pending .

ORG also rejected the applicant company ’s argument that reporting on DATE as being the Minister ’s new partner was inseparable from reporting on the Minister herself . It observed that the media were entitled to report on ORG conduct , considering that she was appointed by ORG which represented a conservative image on families , that her credibility was at stake and that this was a matter of public interest . However , this did not mean that the media also had the right to violate her partner ’s private sphere . Indeed , GPE himself was not a public figure . It would have been sufficient , to satisfy the public interest in the Minister ’s conduct , to report that she maintained an apparently sexual relationship with a married man . However , it had not been necessary to reveal the identity of that married man . The report in question exceeded the necessary information and also included details on DATE ’s marriage .

ORG altered the decision of ORG concerning the statement that GPE was the “ new man at PERSON ’s side and refused to pose with his new love ” because this statement had to be seen in the context of the whole broadcast and not separately . Therefore , it was also an infringement of his most intimate personal sphere . That judgment was served on the applicant company ’s counsel on CARDINAL DATE .

The applicant company did not file a request under LAW of LAW ( Strafprozessordnung ) to ORG ( Oberster Gerichtshof ) .

By an amendment of DATE which entered into force on DATE under the heading “ Renewal of criminal proceedings ” ( PERSON ) , LAW ( GPE ) was introduced , which provides as follows :

“ CARDINAL . If it is established in a judgment of ORG that there has been a violation of ORG [ ORG ] no . CARDINAL/CARDINAL ) or of one of its Protocols on account of a decision [ GPE ] or order [ GPE ] of a criminal court , a retrial shall be held on application in so far as it can not be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned .

All applications for a retrial shall be decided by ORG . Those who are affected by the determined violation as well as ORG are entitled to file an application . LAW shall be applicable analogously . The application is to be filed at ORG . If ORG files an application , those who are affected , if the CARDINAL affected files an application ORG , shall be heard . Article CARDINAL § CARDINAL of the Code of Criminal Proceedings shall be applicable analogously . ”

On DATE ORG decided on an application under Article CARDINALa by a convicted person in a case in which no application to the ORG had been filed previously and no judgment of the ORG had been delivered ( file no . CARDINAL Os QUANTITY ) :

“ ... In the present case there are no indications that a decision or order of a criminal court which had an adverse effect on the applicant had been found to be in violation of ORG CARDINAL and CARDINAL of the Convention by ORG in respect of the applicant . However , this does not render the application inadmissible .

LAW required each ORG to provide any person , who shows with some plausibility that there has been a violation of his or her rights under LAW and its Protocols , with an effective remedy , in other words , to ensure that there is a national instance examining whether there has been a violation of a LAW right . Article LAW must not be interpreted as permitting a retrial only in cases where a violation of Convention rights has already been established in a judgment against GPE by ORG .

ORG , as the highest instance in GPE in criminal matters established by LAW , sees itself called upon to fulfil the obligations under the LAW by ensuring that in the field of criminal law the spirit of the LAW is respected also in cases in which no judgment was issued against GPE by the ORG .

ORG has previously detected lacunae in the law ( planwidrige Lücke ) as regards the protection of human rights and has used its powers to close them .

A judgment by the ORG which establishes a violation of the rights under the ORG is a necessary and sufficient precondition for a renewal of the criminal proceedings under LAW . But also the legal practice and case - law of ORG concerning criminal proceedings have changed significantly since the entry into force of this provision . There is therefore a lacuna in law that has to be closed . This must be done by interpreting the relevant law in a way , that a judgment by the ORG is no longer a precondition for the renewal of the criminal proceedings under LAW . In fact , this can be done by ORG itself deciding on a violation of the rights and freedoms under the LAW upon an application under LAW of LAW . Also ORG previous case - law does not conflict with this result .

This extensive understanding of the provisions dealing with the renewal of criminal proceedings had been necessary not only because of the recent developments in human rights :

ORG was not involved in any of the CARDINAL cases , in which the ORG found a violation of the right to freedom of expression under LAW , even though this could have been possible by means of a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) or an extraordinary reopening under LAW ( ausserordentliche PERSON ) . Therefore , in all these cases ORG had not been given the opportunity to fulfil its function as the highest instance in criminal matters as foreseen by LAW . Therefore , this court did not have the opportunity to examine the question of a possible violation of human rights . On the one side , there are proceedings before ORG ) in which an allegation of a violation of the rights and freedoms under the LAW can be raised . On the other side , as it is in this case of relevance , ORG – as the highest instance in criminal matters – has the duty to observe the compliance not only with the fundamental rights guaranteed at the level of ordinary law but also with rights guaranteed at the level of constitutional law ( Article CARDINAL ( CARDINAL ) , LAW ) of LAW ) . ORG has the power to deal in an effective way with alleged violations of human rights committed by the lower courts in proceedings on a plea of nullity , a request for the renewal of proceedings , a fundamental rights complaint ( Grundrechtsbeschwerde ) and proceedings under LAW ( Fristsetzungsantrag ) of LAW ( PERSON ) . These remedies give ORG the possibilities set out by LAW not only to follow the ORG ’s caselaw but also to take , itself , the initiative for influencing the development of human rights law on its own .

In the same judgment , ORG further stated that it would apply the criteria set out in LAW on the admissibility of an application also in respect of a request for renewal of criminal proceedings under LAW , in particular the DATE time - limit , also in a case which had not been previously examined by the ORG and in which no judgment of the ORG had been issued .

NORP Since then , ORG has decided in several cases on requests lodged under LAW as from DATE ( for example the decision of DATE , CARDINAL Os CARDINAL ; of DATE , CARDINAL Os CARDINAL/CARDINALb ; of DATE , CARDINAL Os CARDINAL/CARDINALh ; of CARDINAL DATE , CARDINAL Os CARDINAL/CARDINALp ; of DATE , CARDINAL Os CARDINAL ; of DATE , CARDINAL Os CARDINAL/CARDINALy ; of DATE , CARDINAL Os CARDINAL/CARDINAL m ) . In all of these cases ORG confirmed its leading decision of CARDINAL DATE and developed further its case - law in regard to the admissibility of the applications under LAW of LAW . Among these were cases concerning LAW ( for example the decision of DATE , CARDINAL Os CARDINAL/CARDINALy ) . In cases where ORG found a violation of rights guaranteed under the LAW , it quashed the lower court ’s decisions and ordered that a fresh decision be taken ( for example the decision of DATE , CARDINAL Os CARDINAL/CARDINALh ; of DATE , CARDINAL Os CARDINAL g ; of CARDINAL DATE , CARDINAL Os CARDINAL/CARDINALi ) .

ORG further stated in its case - law that victims of crimes and private prosecutors ( GPE ) , as well as public prosecutors , are not entitled to this remedy ( see , inter alia , ORG decisions of DATE , CARDINAL Os CARDINAL/CARDINALf and of CARDINAL DATE , CARDINAL Os CARDINAL/CARDINAL t ) .


Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

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

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

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

On DATE , the applicant entered the GPE where he applied for asylum . On DATE , the applicant was interviewed about his identity , nationality and travel itinerary . He stated , inter alia , that he hailed from GPE and that he had travelled to the GPE via GPE and GPE .

On DATE and CARDINAL DATE , the applicant was interviewed about his reasons for seeking asylum ( nader gehoor ) . He stated that he had made a career in the NORP army from DATE , during which period the country had been ruled by ORG of GPE ( “ PDPA ” ) . He had joined the ORG ’s youth organisation at DATE and become a full member in DATE . Having studied car mechanics in GPE and graduated in DATE , the applicant had taken up a DATE internship at ORG in order to avoid military service . On this basis , he had been transferred , for a job , to ORG where he had been assessed with a view to possibly offering him a higher education in GPE . Having passed that selection , the applicant had been sent to CARDINAL of the NORP republics from DATE until DATE to study rocket science . Later , the applicant had also taken a DATE political course in the army , in the framework of continued education as an officer .

From DATE to around DATE and from DATE , the applicant had been deputy of ORG in CARDINAL of ORG ; during the first period in a maintenance company and during the second period in CARDINAL of the battalions . In the latter function he had been the superior of CARDINAL deputies of ORG as well as Deputy Commander of the battalion . DATE , the applicant had also held the position of president of the ( political ) ORG .

The applicant had been promoted several times and his last held rank had been that of major . The applicant indicated that his tasks as deputy of ORG had involved , inter alia , the creation and dissemination of propaganda and the teaching of politics to soldiers .

On DATE , after the ORG had come to power , the applicant had left GPE for GPE because he had no longer felt safe . Many of his friends had been arrested by the Mujahedeen . On the way to GPE , the bus in which he had been travelling had been stopped at a checkpoint . The applicant had been arrested by the PERSON and kept in prison in GPE for DATE , during which period he had been interrogated about his role in the coup attempt and tortured . After that , the ORG had sent him to the war front to dig trenches and load grenade launchers .

On DATE or DATE , he had escaped from the prison in which he was kept by simply walking away when the prison guards had abandoned the prison in the wake of the capture of GPE by the ORG . He had then gone to his home village , where he had gone into hiding at his father ’s house and where he had remained until his departure from GPE on DATE . During that time , his father had been hassled by the ORG about the family ’s involvement with the PDPA ( the applicant ’s entire family had been PDPA members ) . The applicant submitted that he feared persecution from the side of the ORG and later , after DATE , the ORG .

The applicant ’s wife , born in DATE , and their CARDINAL children DATE who were born DATE as well as a number of members of the applicant ’s family - in - law have all , at different points in time , been granted residence rights in the GPE . His eldest son had fled from GPE via GPE to GPE in DATE together with the applicant ’s mother - in - law and a number of the applicant ’s wife ’s brothers . This son , who was granted a residence permit in the GPE for compelling humanitarian reasons on the basis of the then general situation in GPE , has since obtained GPE nationality . The applicant ’s wife and CARDINAL of the children fled from GPE via GPE , GPE and GPE to the GPE , where on an unspecified date they were granted residence permits under the policy rules on extended family reunion ( verruimde gezinshereniging ) . The remaining CARDINAL children were also granted residence permits . On unspecified dates , the applicant ’s oldest CARDINAL children obtained NORP nationality , retaining their NORP nationality . The applicant ’s spouse currently holds a residence permit for continued residence stay ( voortgezet verblijf ) .

The Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the applicant ’s asylum application on DATE . Having noted CARDINAL official country reports ( ambtsberichten ) on the general political and human rights situation in GPE drawn up by ORG ( GPE PERSON ) in DATE , DATE and DATE , the Deputy Minister found , in the relevant part , that the situation in GPE at that moment was not such as to qualify all asylum seekers from that country for asylum and that , therefore , the applicant had to demonstrate that he had a personal and well - founded fear of persecution in GPE .

NORP The Deputy Minister considered that the grounds adduced by the applicant – amounting in essence to him being searched for by the ORG and/or Mujahedeen due to his past function in the army – did not provide any basis for assuming that the applicant would have to fear persecution upon his return to GPE . The Deputy Minister held in this regard that the applicant had not established that the ORG were aware of his past activities , that he had ever been in contact with the ORG or that there would be any other reasons relating to his past activities that would attract the ORG ’s negative attention . According to the Deputy Minister , the applicant ’s claims were of a general and speculative nature .

Furthermore , the Deputy Minister considered that the applicant had not , either as an army officer during communist rule , or as a member of the ORG , held a political post at a level at which he would have exercised a decisive influence on policy . According to the aforementioned official country reports , the ORG were in general not interested in former communists who had been active at that level only . Moreover , rather than leave GPE immediately after his escape from detention , the applicant had chosen to remain for DATE in an area that was already under ORG control at that time . The Deputy Minister considered implausible that a person who allegedly feared persecution by the authorities would go into hiding with somebody who himself was experiencing regular problems with those same authorities . This also applied to the applicant ’s claim that he feared persecution by the ORG as a result of the problems he allegedly had with the Mujahedeen . As the power base of this latter movement had in the meantime significantly decreased , the Deputy Minister held that the applicant should be able simply to evade any problems he might expect to experience from that side . In respect of the applicant ’s reliance on LAW , the Deputy Minister found that his account provided insufficient indications to assume that he , if returned to his country of origin , would run a real risk of being subjected to treatment in breach of that provision .

On DATE the applicant lodged an objection ( bezwaar ) against this decision with the Deputy Minister .

On DATE , the applicant was informed that his case file had been transmitted to ORG ( see paragraph CARDINAL below ) of ORG ( Immigratie- en ORG ; “ IND ” ) as his asylum account , in particular his professional activities as a career military , gave reasonable cause to suspect that LAW DATE LAW , as amended by LAW of DATE ( “ the DATE LAW ” ) might apply to his case .

The applicant ’s asylum application was re - examined in the light of an official report , drawn up on DATE by ORG on “ ORG in communist GPE ( DATE ) . AGSA , ORG , ORG and ORG ( “ PERSON in communistisch GPE ( DATE ) , AGSA , ORG , ORG en WAD ” ) and concerning in particular the question whether and , if so , which former employees of those services should be regarded as implicated in human rights violations . According to this official report , LAW could be held against virtually every NORP asylum seeker who , holding the rank of third lieutenant or higher , had worked during the communist regime for the military Khadimate Atal’at - e Dowlati ( “ KhAD ” ) or , subsequently , the PERSON - e NORP - e Dowlati ( “ WAD ” ) .

On DATE , an additional interview was held with the applicant on the applicability of LAW to his case .

On DATE , the Minister for ORG ( Minister PERSON Integratie ; the successor to the Deputy Minister of ORG ) dismissed the applicant ’s objection . She found , inter alia , that the applicant constituted a danger to public order ( openbare orde ) , as serious reasons had been found for believing that he had committed crimes referred to in LAW . Although the Minister attached credence to the applicant ’s statements in terms of his positions and career within the NORP army , the applicant ’s description of his tasks was deemed to be inaccurate . Further , on the basis of a person - specific official report ( individueel ambtsbericht ) issued by ORG on DATE , the Minister found that , at the relevant time , ORG departments of the NORP army consisted solely of highly loyal and skilled professional soldiers , who wielded a large amount of influence within the organisation and who , as informants , worked closely together with the KhAD . They were thus inextricably connected to the frequent arrests , disappearances and/or executions of disloyal members of the army by the ORG . The Minister further emphasised the widely known cruel character of the ORG , the grave crimes committed by its officers and the “ climate of terror ” it had spread throughout the entire NORP society , including the army . In this regard the Minister relied on the general official report of DATE .

Having established , on the basis of elaborate argumentation and documentation , that those involved in the ORG and ORG of the NORP army were likely to fall within the scope of LAW of LAW , the Minister proceeded to an analysis of the applicant ’s individual responsibility under that LAW on the basis of the prescribed and so - called “ personal and knowing participation test ” and eventually rejected the applicant ’s objection by holding LAW against him . The Minister indicated that consequently , pursuant to the provisions of sections CARDINAL and CARDINAL of LAW ( Vreemdelingenbesluit ) , the applicant was ineligible for a residence permit for asylum or any other ground .

In so far as the applicant relied on LAW , the Minister held that it was for the applicant to show that there were concrete reasons , connected to personal facts and circumstances , justifying the conclusion that he would run a real risk of treatment contrary to that provision if returned to GPE . The Minister found that the applicant had failed to substantiate such grounds , since he had neither indicated that anyone would be actively looking for him in GPE nor furnished any reasons due to which he would draw the local authorities’ particular attention .

Lastly , and as regards LAW as invoked by the applicant , the Minister held that , although there was family life between the applicant and his relatives residing in the GPE , the ORG ’s interest in expulsion of individuals who endanger public order prevailed over the personal interests of the applicant .

The applicant ’s appeal against this decision was rejected by judgment of CARDINAL DATE by ORG ( rechtbank ) of GPE , sitting in GPE . Pursuant to section CARDINAL:CARDINAL of the General Administrative Law Act ( PERSON ) , this judgment was sent to the applicant on DATE .

In the appeal proceedings before ORG , the applicant had disputed the accuracy of the official reports , drawn up by ORG , which the Minister had relied on in his case , and he argued that the information contained in those reports did not apply to him . At the request of the Minister of ORG and with the parties’ consent , ORG was granted access to the materials underlying the person - specific official report of DATE without these materials being disclosed to the applicant . It found that the report provided information in an unbiased , objective and transparent manner , and accepted that the conclusions drawn in the official report were sufficiently supported by the underlying materials . The applicant ’s unsubstantiated claim that the information contained in the person - specific official report did not necessarily apply to each person who had worked at ORG department was insufficient for ORG to doubt the report ’s accuracy . ORG further found that it had not appeared that there were any concrete indications to doubt either the person - specific official report or the official report of CARDINAL DATE .

ORG held that the Minister could reasonably have established the facts relating to the applicant ’s activities for ORG of ORG in the way that she had done . In addition , she could reasonably have dismissed as implausible the applicant ’s claim that he had not been aware of human rights abuses committed by ORG until he came to the GPE , given that the ORG / WAD ’s criminal character was generally known in GPE at the time , according to the official report of DATE .

As regards the applicant ’s reliance on LAW , ORG concurred with the Minister on all points that the applicant had failed to substantiate the existence of a real risk of treatment contrary to that provision . As to LAW , ORG held that this provision could not play a role in asylum proceedings , notwithstanding the fact that the Minister had examined the applicant ’s arguments in this context .

The applicant ’s further appeal to ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) was declared inadmissible on DATE . The ORG found that it had no jurisdiction as , by virtue of LAW ( Vreemdelingenwet CARDINAL ) , the ORG only had jurisdiction over decisions taken after the entry into force of that LAW whereas the initial decision by the Deputy Minister had been taken on DATE . No further appeal lay against this decision .

On DATE , the applicant applied for a residence permit for the purpose of exercise of family life within the meaning of Article CARDINAL of the Convention . This application was rejected on DATE by the Deputy Minister of ORG ; the successor to the Minister for ORG . The applicant ’s objection against this decision was rejected on DATE by the Minister for ORG ( Minister PERSON , ORG ; the successor to the Deputy Minister of Justice ) .

The applicant ’s appeal against the decision of CARDINAL DATE was rejected on DATE by ORG of The Hague , sitting in GPE . It noted that it appeared from the decision of DATE that the applicant was associated with extrajudicial arrests and extrajudicial detention of persons , the torture of persons , extrajudicial execution of persons , and the commission of assassinations , because he – on account of his work for ORG – had facilitated the activities of ORG . It further noted that this decision had become final .

As regards LAW held :

“ The court considers that , according to settled case law of ORG , regardless of whether there is a positive or negative obligation , a fair balance must be struck between , on the one hand , the interests of the alien and , on the other , GPE general interest . In this balancing exercise , the [ Minister ] enjoys a certain margin of appreciation . The court notes that , in his assessment , the [ Minister ] has taken into account the criteria formulated in the judgments of ORG August CARDINAL in the case of GPE and DATE in the case of GPE . The court accepts that it was reasonable for the [ Minister ] , in striking this balance in the framework of DATE , to find against the [ applicant ] . To this end , the court considers that it was not unjust that the [ Minister ] attached weight to the suspicion of the [ applicant ’s ] involvement in human rights violations . The court does not follow the [ applicant ’s ] argument that , in assessing whether he should be granted a residence permit on the basis of LAW , insufficient factual research has been made into his involvement in the commission of crimes referred to in LAW . ... The court sees no ground for holding that only crimes found proven according to criminal law standards may be held against [ the applicant ] . The [ Minister could also hold against the [ applicant ] that [ the latter ] has accepted a deal ( transactie ) proposed by a public prosecutor in order to avoid the lodging of formal criminal proceedings for shoplifting . This is not altered by the fact , as confirmed by the [ Minister ] at the hearing , that this has a lighter weight . It further has been taken into account in the balancing exercise that the [ applicant ] has resided in the GPE for DATE , but he has never had lawful residence based on a valid residence permit and his residence status has always been precarious . Although the [ applicant ’s ] spouse is living here and holds a valid residence permit , no objective obstacle has appeared to exercise the family life with her elsewhere . His spouse holds NORP nationality . The argument that his spouse can not return to GPE for asylum - related reasons but that these reasons have never been examined because she had already been granted a regular [ i.e. not asylum - based ] residence permit does not succeed . To the extent that reference has been made to the [ applicant ’s ] asylum account , it has been established in the proceedings on his asylum request that he has not demonstrated that he has to fear treatment in breach of LAW nor that for any reason or other he will have to expect the particular attention of the authorities upon his return . To the extent that the [ applicant ’s ] spouse claims to have independent , separate asylum - related problems , this has not been substantiated . The report of CARDINAL DATE by GPE , psychologist , concerning the spouse ’s mental health state is insufficient for finding that there is an objective obstacle . It is true that it appears that she suffers from depression , a dissociative and a post - traumatic stress disorder , but it does not appear that for this reason she would be unable to go to GPE with the [ applicant ] . ... Noting the fact that the [ applicant ] and his wife married in the period during which the [ applicant ] worked for ORG , the [ Minister ] has justly not found it plausible that his wife was unaware of the facts held against the [ applicant ] in the framework of LAW [ of LAW ] . ”

As regards asylum - related arguments advanced by the applicant , ORG held :

“ ... the ORG is of the opinion that the [ applicant ’s ] argument fails . Noting the strict separation between asylum - related and regular [ i.e. non - asylum - related applications for a residence permit ] that follows from the system of LAW , the Minister has justly referred to [ the possibility of ] filing an asylum application . ”

On DATE , ORG rejected the applicant ’s further appeal on summary grounds , holding :

“ What has been raised in the grievances ... does not provide grounds for quashing the impugned ruling . Having regard to section CARDINAL § CARDINAL of LAW , no further reasoning is called for , since the arguments submitted do not raise questions which require determination in the interest of legal uniformity , legal development or legal protection in the general sense . ”

No further appeal lay against this ruling .

On DATE , the Deputy Minister for Security and ORG ( Staatssecretaris PERSON Justitie ; the successor to the Minister for ORG ) informed the applicant that – it having been noted that it had been erroneously assumed in the proceedings having ended on DATE that there was an obstacle for the applicant ’s expulsion in the form of an interim measure issued under LAW by ORG he intended to proceed with the applicant ’s removal from the GPE .

According to a letter dated DATE and sent to the applicant ’s representative by a psychologist and a psychiatrist working for the mental health care organisation providing treatment to the applicant ’s daughter PERSON , the latter displayed psychotic features , possibly in the context of a developing schizophrenia or post - traumatic stress disorder . She was visited DATE in her home for treatment . The authors of this letter stated that they were unable to indicate whether her mental health problems were connected to or affected by the applicant ’s possible removal from the GPE , but considered it understandable that this removal would cause tensions within the family .

On DATE , the applicant requested the ORG to indicate to ORG , under LAW , to stay his expulsion to GPE . On DATE , the acting President of the Third Section , to which the case had been allocated ( Rule CARDINAL § CARDINAL of the Rules of Court ) , decided to adjourn the examination of the request as no practical steps aimed at the applicant ’s effective removal had yet been taken by the GPE authorities .

On DATE , ORG ( PERSON ) of ORG and ORG informed the applicant that his removal to GPE had been scheduled for DATE .

On DATE , the applicant requested the ORG to determine his request to apply Rule CARDINAL of ORG . On DATE , the ORG decided not to indicate the interim measure sought by the applicant and informed him accordingly .

In her submissions of DATE and DATE to the ORG , the applicant ’s lawyer informed the ORG that on CARDINAL DATE the applicant had moved from the GPE to GPE where he had applied for asylum . This request was still pending and the applicant had been granted a provisional residence permit ( GPE ) , valid until DATE with the possibility of further prolongation , pending the decision on his asylum request . His spouse had visited him in GPE .

Until DATE , the admission , residence and expulsion of aliens were regulated by LAW DATE ( PERSON ) . Further rules were laid down in LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW DATE ( PERSON ) . On DATE , LAW DATE was replaced by LAW . On DATE , LAW , the Regulation on Aliens and LAW were replaced by new versions based on LAW . LAW ( PERSON ) applies to proceedings under LAW , unless indicated otherwise in this LAW .

Aliens are eligible for admission only on the basis of directly applicable international agreements , or if their presence serves an essential NORP interest , or for compelling reasons of a humanitarian nature ( section CARDINAL of LAW ) . Respect for family life as guaranteed by LAW or risk of being subjected in the country of origin to treatment in breach of LAW constitute an obligation under an international agreement .

Under LAW of LAW , an alien is eligible for a residence permit for the purpose of asylum if , inter alia , he or she is a refugee within the meaning of LAW , or he or she has established that he or she has well - founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin .

NORP If the exclusion clause under LAW ( see paragraphs CARDINAL - CARDINAL below ) is held against an asylum seeker , the alien concerned loses any protection which might have been available under that Convention and , consequently , becomes ineligible for a residence permit for asylum under LAW of LAW ( section CARDINAL of LAW and LAW ) .

The admission policy for family reunification ( gezinshereniging ) purposes is laid down in LAW of LAW DATE . A partner or spouse of a person lawfully residing in the GPE is , in principle , eligible for admission , if certain further conditions relating to matters , such as , public policy and means of subsistence are met .

Under LAW , judicial review by ORG and ORG in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and , in the light of the interests at stake , could reasonably have taken the impugned decision ( marginale toetsing ) . Both before ORG and ORG it is possible to apply for a provisional measure ( voorlopige voorziening ) pending the outcome of the appeal proceedings .

In a ruling of DATE ( ORG [ National Jurisprudence Number ] BGCARDINAL ) , ORG held that , apart from judicial review by ORG and ORG in administrative law appeal proceedings , in principle no further remedy lay against a decision to reject an alien ’s request for admission to the GPE , as the lawfulness of the consequences of that decision had already been judicially determined in the administrative appeal proceedings . It nevertheless accepted that in certain exceptional circumstances , such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal ( daadwerkelijke uitzettingshandeling ) , an objection ( bezwaar ) and subsequent appeal ( beroep ) may be filed against an act aimed at effective removal . Under the terms of section QUANTITY of LAW , such an act can be equated with a formal decision within the meaning of LAW which can be challenged in separate administrative law appeal proceedings .

In accordance with LAW ( ORG ) No . CARDINAL of ORG and of ORG on the rules governing the movement of persons across borders ( FAC ) and LAW of DATE ( ORG ) a third country national holding a valid residence permit issued by CARDINAL of the states of the LOC area may – on the basis of that permit DATE stay for a maximum period of DATE per DATE in the territory of another country within the LOC area .

Article CARDINAL of the DATE Refugee Convention reads :

“ The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that :

( a ) he has committed a crime against peace , a war crime , or a crime against humanity , as defined in the international instruments drawn up to make provision in respect of such crimes ;

( b ) he has committed a serious non - political crime outside the country of refuge prior to his admission to that country as a refugee ;

( c ) he has been guilty of acts contrary to the purposes and principles of ORG . ”

On DATE the ORG High Commissioner for Refugees ( ORG ) issued the “ ORG . CARDINAL : Application of the Exclusion Clauses : Article CARDINAL of the DATE Convention relating to LAW . They superseded “ LAW on their LAW ( ORG , DATE ) and “ Note on the Exclusion Clauses ” ( ORG , CARDINAL DATE ) and are intended to provide interpretative legal guidance for governments , legal practitioners , decision - makers and the judiciary , as well as ORG staff carrying out refugee status determination in the field . These guidelines state , inter alia , that where the main asylum applicant is excluded from refugee status , his / her dependants will need to establish their own grounds for refugee status . If the latter are recognised as refugees , the excluded individual is not able to rely on the right to family unity in order to secure protection or assistance as a refugee ( paragraph CARDINAL ) .

The GPE authorities do not wish the GPE to be a refuge for war criminals or human rights offenders , and consider it undesirable that victims who have been granted protection in the GPE still feel unsafe by the presence in the same country of those who are actually responsible for the fact that they were forced to flee their country of origin ( for the policy statement sent on DATE by the Deputy Minister of ORG to ORG of ORG ; see , PERSON and J. v. the GPE ( dec . ) , nos . CARDINAL/CARDINAL and CARDINAL , § DATE , CARDINAL DATE ) . Accordingly , if in the context of a request for an asylum - based residence permit , any signs appear that crimes or acts referred to LAW have been committed by the petitioner , a special ORG , composed of employees who are specifically trained for this purpose , investigates whether LAW is applicable .

Following a so - called “ CARDINAL investigation ” , it will be decided whether or not to hold the exclusion clause under LAW against the person concerned . Where LAW is applied , the asylum request is rejected and the person concerned is obliged to leave the GPE . This decision , taken in the context of asylum proceedings , may be challenged in administrative law appeal proceedings ( see § DATE above ) .

Where in a case LAW has been applied , ORG notifies the public prosecution service hereof . This does not mean , however , that criminal proceedings are automatically initiated in that case . This depends on various legal and practical factors , in particular factors related to evidential issues such as , inter alia , the availability and safety of witnesses . In accordance with the discretionary powers held by the public prosecution service ( opportuniteitsbeginsel ) , it remains for that service to decide in each individual case and in line with the general policy rules defined by ORG ( College van procureurs - generaal ) whether to prosecute or not .

On DATE , ORG issued a general official country report ( algemeen ambtsbericht ) on security services in communist GPE ( DATE ) AGSA , ORG , ORG and ORG . It qualifies these security services as notorious because of their particularly brutal behaviour , including arbitrary arrests , routine torture and extrajudicial executions . The description in the report focuses on ORG Dowlati ( ORG ) and the PERSON - e NORP - e Dowlati ( WAD ) . It states that the ORG – the successor to AGSA ( ORG of GPE ) created in DATE and later renamed to ORG ( ORG Mu’assassa ; Workers’ ORG ) DATE was set up in DATE and transformed into a ministry in DATE and that this ministry , called “ FAC , remained in existence until DATE of the communist regime in DATE . The report concentrates on whether and , if so , which former members of the NORP security services , especially those of the ORG and the ORG , committed human rights violations .

The report further states that detainees and prisoners were systematically tortured in the interrogation and detention centres of the ORG and the ORG , that their agents were very inventive in choosing their torture methods and that CARDINAL of suspects were tortured to death by ORG and ORG agents . If the ORG or ORG thought that a suspect was guilty , they could kill him or her without further investigation or judicial intervention . According to the report , it is estimated that during the NORP regime in GPE CARDINAL citizens were arrested and detained by the NORP security services ( AGSA , ORG , ORG and ORG ) , whereby CARDINAL NORP lost their lives , mostly after being tortured or sentenced to death .

On the basis of this report , the GPE immigration authorities adopted the position that LAW could be held against virtually every NORP asylum seeker who , holding the rank of third lieutenant or higher , had worked during the communist regime for the ORG .


André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Síofra O’Leary

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

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

ORG , having been informed of their right to intervene in the proceedings ( Article CARDINAL § CARDINAL of LAW CARDINAL of the Rules of Court ) , indicated that they did not wish to exercise that right .

The applicant was an officer of the JNA , the armed forces of the former ORG . The present case concerns his attempt to regain possession of his pre - war flat in GPE .

The detailed background concerning socially owned flats , military flats and the involvement of foreign armed forces in the DATE - CARDINAL war in GPE is provided in GPE v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE and PERSON and Others v. GPE , nos . CARDINAL et al . , § § CARDINAL - CARDINAL , CARDINAL DATE .

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

In DATE the applicant was allocated an occupancy right to a military flat in GPE .

On DATE he bought that flat under the terms of the Military Flats Act DATE and paid the full purchase price in the amount of MONEY ( MONEY ( ORG ) at the time ) .

When the PERSON formally withdrew from GPE on DATE , the applicant continued his military career in the FAC forces and left GPE . His military service was terminated in DATE .

During the DATE - CARDINAL war in GPE the flats of those who had fled were declared “ abandoned ” and allocated to new occupants ( see PERSON and Others , cited above , § DATE ) . On DATE the applicant applied for the restitution of his flat to the competent administrative authority in the GPE Canton .

Following CARDINAL remittal on procedural grounds , on DATE his application was rejected pursuant to section CARDINAL of ORG . On DATE the competent ORG upheld that decision .

On DATE ORG ( “ the Cantonal Court ” ) , following an application for judicial review , upheld the second - instance decision of CARDINAL DATE .

On DATE the Constitutional Court of Bosnia and GPE ( “ the Constitutional Court ” ) rejected the applicant ’s constitutional appeal and upheld the impugned decisions .

On DATE the applicant complained to ORG ( a domestic human - rights body set up under Annex CARDINAL to ORG ) about his inability to repossess his pre - war flat . He relied on LAW .

On DATE ORG ( the legal successor of ORG ) found a violation of LAW on account of the length of the restitution proceedings and awarded the applicant MONEY ( BAM ; MONEY ( ORG ) ) for non - pecuniary damage in this connection . As regards the complaint under LAW No . CARDINAL , the Commission concluded that the interference with the applicant ’s right to the peaceful enjoyment of his possessions had been justified . However , it ordered ORG to secure the applicant ’s right to compensation for his pre - war flat envisaged under section ORG , without further delay and at the latest within DATE from the delivery of that decision .

On DATE the government of ORG requested the applicant to provide his contact and bank account details in order to pay the awarded compensation . The applicant provided those details .

On DATE the applicant appealed to ORG against the decision of ORG of DATE . On DATE ORG declared that it lacked jurisdiction to examine the case .

On DATE the applicant initiated proceedings before ORG ( “ the ORG ” ) seeking to establish the validity of the purchase contract of CARDINAL DATE ( see paragraph CARDINAL above ) and to register his title to the flat in the land register .

On DATE ORG declared the purchase contract legally valid . However , it rejected the applicant ’s claim to have his title registered . Under LAW DATE those who served in foreign armed forces after the DATE - CARDINAL war , like the applicant , were not entitled to repossess their pre - war military flats and to register their title , but were entitled to compensation . On DATE ORG upheld that judgment .

The Government did not dispute the facts submitted by the applicant . However , they provided additional information as follows .

On DATE the applicant received BAM CARDINAL,CARDINAL.CARDINAL ( approximately EUR CARDINAL,CARDINAL.CARDINAL ) in compensation for his pre - war flat in accordance with section LANGUAGE of ORG as ordered by ORG ( see paragraph CARDINAL above ) . The amount was transferred to his bank account in GPE .

The relevant domestic law and practice were outlined in PERSON v. GPE ( no . GPE , § § DATE , DATE ) .


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

Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in NORP .

In DATE the applicant took up employment with the ORG ( FAC uprava sisačko - moslavačka ) as a police officer . On DATE he was assigned to a post in FAC ( FAC postaja PERSON ) .

PERSON is a municipality that receives special ORG support as defined by the legislation in force at that time , namely GPE receiving Special State Support ( PERSON o područjima posebne državne skrbi , ORG , ORG . CARDINAL , ORG , CARDINAL and CARDINAL ; hereinafter : the “ Special State Support Act ” ) . Among other things , that Act guaranteed to those employed in the public sector in areas receiving special ORG support a special salary uplift , which in the case of the PERSON municipality amounted to PERCENT of the salaries received in other parts of the country .

The amendments to GPE which entered into force on DATE ( ORG no . CARDINAL/CARDINAL ) guaranteed the right to a special salary bonus only to those public sector employees in areas receiving special ORG support who had both their registered domicile ( prebivalište ) and also actually resided ( borave ) in the area at issue .

In DATE the applicant was assigned to another post in the ORG , with his place of work being ORG .

On DATE the applicant brought an action against the ORG in ORG ( PERSON ) , seeking payment of a salary bonus in accordance with GPE .

Soon afterwards ORG decided that it was not competent to hear the case and transferred it to ORG ( PERSON ORG ) .

During the proceedings before ORG , the NORP State Attorney ’s Office ( Općinsko državno odvjetništvo u PERSON ) ‒ representing ORG objected to that court ’s territorial jurisdiction , arguing that the applicant had his domicile and lived in PERSON , which was also within an area receiving special State support but outside the territorial jurisdiction of ORG . The NORP State Attorney ’s ORG also submitted that the applicant had been receiving expenses for travel between ORG and PERSON and that he was not entitled to the special salary bonus as provided under LAW because NORP was not an area receiving special ORG support .

The applicant replied to these submissions with the argument that during his tenure in PERSON he had had authorisation to use a police car , and that he had in fact lived in PERSON , but since his house had not been fully reconstructed after the war , he had also spent some time in NORP .

With regard to the contentious submissions of the parties , ORG heard evidence from the applicant , who pointed out that during his tenure in PERSON his registered domicile had been PERSON , where he had actually resided ‒ some of the time in his own house and some of the time with his sister , since his house had needed reconstruction . He also explained that he had had authorisation to use a police car and had also been entitled to travel expenses , even though he had actually lived in PERSON .

On DATE ORG accepted the applicant ’s civil action , ordering the ORG to pay compensation for his special salary bonus in the total amount of NORP kunas ( HRK ) , together with the statutory default interest , for the period between CARDINAL DATE and DATE , and to reimburse him the costs of the proceedings in the amount of HRK CARDINAL,CARDINAL.CARDINAL .

ORG pointed out that the applicant ’s statement as to his domicile and his residence was credible and nothing called it into doubt . It also stressed that the NORP State Attorney ’s ORG had neither provided any evidence nor challenged the veracity of the applicant ’s statement . Instead , it had argued in its submissions that the applicant had both his domicile and his residence in GPE , within an area receiving special State support . As to the submission concerning travel expenses , ORG considered that this was a matter relating to the employment conditions of civil servants , which did not in itself have any bearing on the applicant ’s domicile and residence . Against this background , ORG found that the applicant ’s claim should be accepted .

On DATE the NORP State Attorney ’s Office challenged the first - instance judgment before ORG ( Županijski sud u ORG ) contending that the applicant had only had his domicile in PERSON , whereas the travel expenses suggested that he had in fact lived in NORP . It thus considered that the applicant did not satisfy the criteria of the Special State Support Act necessary to qualify for a special salary uplift .

In a decision of CARDINAL DATE endorsing all the factual and legal findings of the first - instance judgment , ORG dismissed the appeal by the NORP State Attorney ’s ORG . The first - instance judgment thus became final .

On DATE ORG opened enforcement proceedings against the ORG on the basis of the final and enforceable judgment in the applicant ’s favour .

The judgment was fully enforced on DATE by payment of the due amount to the applicant .

On DATE the State Attorney ’s Office of GPE ( ORG odvjetništvo PERSON ) lodged a request for the protection of legality ( zahtjev za zaštitu zakonitosti ) with ORG ( PERSON ) against the part of the final judgment of ORG by which the applicant had been awarded HRK CARDINAL for the period DATE and DATE on account of the special salary uplift . It reiterated that the travel expenses which the applicant had received suggested that he had actually resided in NORP in the period at issue , which could also be deduced from the fact that he had provided an address in NORP in the civil action he lodged before ORG . Thus , once the DATE amendments to LAW had entered into force ( see paragraph CARDINAL above ) , the applicant had no longer been entitled to the special salary bonus since he had no longer resided in an area receiving special ORG support , which was a precondition for the special uplift , as explained in the judgment of ORG no . Gzz-CARDINAL/CARDINAL of DATE .

The applicant challenged the request for the protection of legality , arguing that it could not be used as a remedy and that it substantially contradicted the general position on the matter adopted at the meeting of ORG of ORG on DATE .

On DATE ORG approved the request for the protection of legality , quashed the second - instance judgment in the impugned part , and remitted the case to ORG . ORG held that the DATE amendments to LAW made it clear that civil servants employed in an area receiving special ORG support who applied for a special salary bonus should also have their domicile and residence in that area . It therefore ordered ORG to reassess the appeal arguments of the ORG Attorney ’s ORG as to whether or not such conditions had been met in the applicant ’s case .

On DATE ORG accepted the ORG Attorney ’s ORG appeal , reversing the first - instance judgment of ORG in the part in which the applicant was granted HRK CARDINAL,CARDINAL.CARDINAL for the period DATE and DATE on account of the special salary uplift , and ordering the applicant to repay that amount together with the statutory default interest . ORG also reversed the first - instance judgment in the part concerning the costs of the proceedings .

ORG held that the evidence adduced before the first - instance court suggested that in the period at issue the applicant had not in fact resided in an area receiving special State support , and thus had not met all the requirements under the DATE amendments to LAW concerning the right to a special salary uplift .

On DATE the applicant lodged a constitutional complaint before ORG ( Ustavni sud PERSON ) against the judgment of ORG of DATE , challenging the use of a request for the protection of legality in his case .

On DATE ORG dismissed the applicant ’s constitutional complaint as ill - founded , holding that the lower courts had acted in accordance with the law . The decision of ORG was served on the applicant on DATE .

According to a certificate issued by ORG on DATE , pursuant to the above proceedings the applicant repaid the total amount of HRK CARDINAL from his salary to the ORG .