No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Jon Fridrik Kjølbro;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

In the former NORP socialist regime all employees contributed to housing funds . The funds thus obtained were used , inter alia , to build blocks of flats . The flats were distributed to employees , who acquired protected tenancies in respect of them and other already existing socially owned flats . Each publicly owned company drew up a list of persons to be granted specially protected tenancies . When a person on such a list was granted a specially protected tenancy , his or her housing needs were considered to have been met and his or her name would be removed from the list .

The applicant was employed by a socially owned company , S. All employees of S. paid contributions to a housing fund in the amount of PERCENT of their DATE salaries .

On DATE company S. granted the applicant a specially protected tenancy of a flat measuring QUANTITY in the GPE suburbs , with the right to occupy it together with her husband and QUANTITY daughters . However , since that decision was not yet final , company S. entered into an agreement with the applicant on DATE giving her the right to move into the flat with her family and to care for that flat . The applicant moved into the flat and has been living there ever since .

The decision to grant the applicant a specially protected tenancy was challenged by CARDINAL other employees and quashed by ORG ( PERSON ) .

On DATE the housing committee of company S. drew up a priority list for the distribution of flats . The applicant was the first on the list . On DATE the company ’s workers’ council approved the priority list . On the basis of that list she was entitled to have a decision allocating a flat to her issued . On DATE the flats of the company S. were transferred for management to GPE .

On DATE and CARDINAL DATE , respectively , CARDINAL other employees of company S. brought an action before the competent court , seeking to have the priority list declared null and void . Competence in the matter was subsequently transferred to ORG , which on DATE dismissed the claims on the merits since there was no possibility under the relevant law to bring such an action at all . A civil action could be brought to challenge the decision on allocation of a flat but not to challenge a priority list .

On DATE the ORG amended the judgment of DATE so as to declare the actions inadmissible on the same grounds , namely that the priority list could not be challenged before a court of law .

Meanwhile , on DATE ORG had enacted ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) , which abolished the specially protected tenancies and regulated the sale of socially owned flats previously let under a specially protected tenancy .

On DATE the applicant asked GPE as the owner of the flat to conclude a contract for the sale of the flat with herself as the buyer . GPE did not take any decision within the prescribed time - limit of DATE .

On an unspecified date in DATE the applicant re - submitted to the GPE her request to purchase the flat she occupied . The request was refused on DATE because she had not been granted a specially protected tenancy in respect of that flat .

On DATE the applicant brought a civil action against GPE , which in the meantime had become the owner of the flat she occupied , seeking a judgment in lieu of the contract of sale of the flat in question .

The claim was dismissed by ORG on DATE on the grounds that the applicant had not acquired a protected tenancy of the flat in question , since the priority list did not constitute a decision on the granting of protected tenancies within the meaning of LAW .

The judgment was upheld by ORG on DATE . The court held that the applicant did not have a final decision on allocation of the flat to her .

In a subsequent constitutional complaint lodged by the applicant , she complained that her right to equality before the law , her right to an appeal as well as her right to a fair trial had been violated . She argued that she had been the first on a priority list drawn up by company S. for the distribution of flats . The only reasons she had not been formally granted a specially protected tenancy of the flat she had been occupying were the challenge of the priority list by her co - workers and the delay in the civil proceedings before ORG . However , once those proceedings had ended , all of the conditions for recognition of her specially protected tenancy of the flat at issue had been met . The DATE validity of the priority list was to be counted from the date of its being confirmed , which in the applicant ’s case had occurred when the national courts had dismissed all the objections concerning that list . By not recognising her right to a specially protected tenancy , the national authorities had deprived her of the possibility to purchase the flat she occupied under favourable conditions . She also relied on some other decisions of the ORG whereby it had granted protection to persons in situations comparable to her own .

On CARDINAL DATE ORG dismissed the applicant ’s constitutional complaint on the grounds that the findings of the lower courts that she had not acquired a specially protected tenancy of the flat at issue had been correct . It further held that the decisions the applicant had relied on concerned persons who had had specially protected tenancies which they had subsequently lost .


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (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)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in DATE and lives in ORG .

On DATE the applicant was arrested by police officers PERSON and PERSON of the drug crimes unit and taken to ORG ( “ the police station ” ) .

Officer PERSON drew up a report following the search of his personal effects , according to which a package containing a substance , later determined to be marijuana , was found on the applicant . The report , indicating that it was drawn up at CARDINAL p.m. on DATE , was signed by the applicant and attesting witnesses PERSON and T.

According to the Government , when officers PERSON and PERSON began drawing up the above - mentioned report at the scene of the applicant ’s arrest , the applicant attempted to escape . The officers then handcuffed him . The applicant was then taken to the police station where he and the attesting witnesses were questioned . At TIME the applicant was released having signed a note affirming that he had no complaints against the police .

According to the applicant , at the police station he was ill - treated to make him confess . In particular , he alleged that he was threatened with rape , kicked and hit on the head and torso , and threatened with weapons . He was subjected to a “ NORP hanging ” ; with his hands cuffed behind his back he was raised to the height of CARDINAL QUANTITY and then dropped face down on the floor . He lost consciousness several times . When she arrived at the police station , the applicant ’s mother found him with bruises on his face , a swollen chin and marks of handcuffs on his wrists .

At the police station the applicant wrote CARDINAL notes addressed to the police dated DATE . In an “ explanatory note ” the applicant stated that he had acquired some marijuana for personal use and had had it when the police had stopped him . The applicant further stated that he had not been physically or psychologically pressured . In a separate note he stated that he had no complaints against the police and undertook to appear when summoned .

At TIME on CARDINAL DATE an ambulance arrived at the police station and the applicant was examined by a paramedic , PERSON The paramedic noted in her report that the examination was completed at TIME According to the report , the applicant had no complaints and nothing abnormal was detected . According to the applicant , the head of the drug crimes unit , officer PERSON , was present during this examination and spoke with the paramedic afterwards .

Following the applicant ’s examination at the police station he and his mother went to ORG of ORG ( “ the Regional Directorate ” ) , where they arrived at TIME on DATE , and where the applicant lodged a complaint accusing police officers of ill - treatment .

Officer PERSON followed the applicant to ORG and arranged for him to be examined by the medical expert on duty there .

At TIME on DATE forensic medical expert GPE examined the applicant at ORG . According to his report , finalised on DATE , the expert had been called upon to determine the presence and seriousness of any bodily injuries . The applicant said to the expert that the police had grabbed him by the neck and arms at the time of the arrest and had handcuffed him . He complained of a headache and pain in his shoulders . The report recorded a haematoma of QUANTITY in width on the applicant ’s neck , a haematoma of QUANTITY on the inner side of his left shoulder , and CARDINAL strip - like bruises on his left wrist . The expert took the view that the injuries could have been inflicted on the date and under the circumstances described by the applicant , and that the bruises on his wrist could have been caused by handcuffs .

At TIME on CARDINAL DATE the applicant sought medical aid at ORG ( “ the hospital ” ) where he was diagnosed with concussion and contusion of the soft tissues of the head and the rib cage . Hospitalisation was recommended but the applicant refused .

On DATE the applicant was examined by PERSON at the Neurology , ORG of ORG . He was diagnosed with a brain concussion of medium seriousness and numerous bruises on his arms , shoulder blades and spine .

On DATE the applicant ’s mother lodged a criminal complaint with ORG ( “ the ORG ” ) against the police officers . She alleged that excessive force had been used to arrest her son and that he had then been tortured , humiliated and threatened with rape at the police station .

On DATE the ORG requested an examination of the applicant and his medical documentation by forensic medical experts . On CARDINAL DATE medical experts GPE and GPE examined the applicant and his medical documentation .

In the course of pre - investigation enquiries in respect of the allegations of ill - treatment , the ORG obtained statements ( written explanations ) from a number of individuals . In particular , in his written explanation , Mr GPE , who had witnessed the applicant ’s arrest , stated that at TIME on DATE a stranger , without introducing himself , had grabbed the applicant by the scruff of his neck or by the shirt collar and , threatening him with a gun , pulled him to a car . He and another stranger had then grabbed the applicant by the arms , searched him and put him into their car . Officers PERSON and PERSON stated that at the time of arrest the applicant had attempted to flee and had been handcuffed . They and officer PERSON insisted that the applicant had not been ill - treated in any way . Attesting witnesses PERSON and NORP confirmed the statements by the police and stated that the applicant had attempted to flee while the search report was being drawn up . He had then been caught and handcuffed .

In his written explanation given to the ORG on CARDINAL DATE the applicant stated , in particular , that immediately after having stopped him a police officer had hit him on the head , stomach and ribs with the handle and muzzle of his gun . He had then been pulled by the arms to a police car . At the police station the police officers had pulled down his trousers and threatened him with rape , had subjected him to a “ NORP hanging ” , and dropped him to the floor , causing him to lose consciousness . When his mother had arrived at the police station entrance hall she had seen him with a bruised and swollen chin , haematomas and bruises on his head , arms and body .

On DATE the ORG , referring to the above - mentioned evidence , refused to institute criminal proceedings against the police officers for lack of a corpus delicti in their actions . The ORG found that the applicant ’s handcuffing was the only instance of the use of force in respect of the applicant and that it had been lawful under LAW of DATE ( “ LAW ” ) . The applicant ’s injuries recorded at TIME on DATE were consistent with the police ORG statements concerning the applicant ’s arrest and handcuffing . The ORG also stated that the applicant ’s and his mother ’s allegations were not supported by any objective data other than their own statements . The applicant ’s mother appealed .

On DATE the applicant , in a written explanation to PERSON Prosecutor ’s Office ( “ the ORG ” ) , largely confirmed his earlier statements and added that in the police car on the way to the police station the police officers had repeatedly hit him on the head and torso .

On DATE forensic medical experts completed their report requested by the ORG on DATE and based on their examination of the applicant on CARDINAL DATE . They noted that the applicant had complained to them that he had been hit with a gun on the head and torso during his arrest and then ill - treated at the police station . The experts recapitulated that at the time of previous medical examinations the applicant had had a brain concussion , haematomas on his neck and left shoulder , and bruises on his left wrist . They were of the opinion that the injuries were consistent with the applicant ’s statements as to their origin .

On DATE the ORG set aside the ORG ’s decision of DATE and remitted the materials for additional inquiry . The court held , in particular , that the ORG ’s enquiries had failed to explain the applicant ’s injuries recorded at TIME on DATE .

On DATE the ORG ( “ the ORG ” ) , in the course of examination of a criminal case against the applicant for possession of drugs , ordered the ORG to conduct , by DATE , an investigation into the applicant ’s allegations of ill - treatment .

On DATE ( apparently due to a clerical error the text of the decision indicates DATE as its date ) the ORG refused to institute criminal proceedings against the police officers on grounds similar to the ORG ’s decision . The applicant ’s mother appealed .

On DATE ORG set aside the decision of CARDINAL DATE and remitted the materials for additional inquiry . The court found , in particular , that the ORG ’s decision had fully replicated the ORG ’s decision of DATE , had not explained the reasons for which the ORG had accepted the police ORG version of events and had failed to explain how the applicant ’s handcuffing could explain all his recorded injuries .

On DATE the ORG refused to institute criminal proceedings on grounds similar to the earlier decisions . It informed ORG that by this decision it complied with the court ’s ruling of DATE . The applicant ’s mother appealed .

On DATE ORG set aside the decision of CARDINAL DATE and remitted the materials for additional inquiry . The court held , in particular , that the pre - investigation enquiries had collected sufficient information that a crime had been committed . Further investigation into the origin of the applicant ’s injuries required such investigative steps as a confrontation between the applicant and the police officers and a reconstruction of events , which could not be conducted within the framework of pre - investigation enquiries without the institution of criminal proceedings .

In the course of the subsequent round of pre - investigation enquiries the ORG again obtained written explanations from the police officers and the attesting witnesses , who largely repeated their previous statements .

On DATE the ORG , referring to the evidence gathered , refused to institute criminal proceedings on grounds similar to the earlier decisions . The applicant ’s mother appealed .

On DATE ORG set aside the decision of CARDINAL DATE and remitted the materials for additional inquiry , holding that the ORG had failed to comply with the court ’s previous instructions .

In the course of the subsequent round of pre - investigation enquiries the ORG obtained written explanations from several individuals . Dr PERSON stated , in particular , that the applicant ’s injuries she had recorded on DATE could have been sustained from DATE . The applicant ’s mother largely repeated her allegations and stated that she and the applicant had travelled from the police station to ORG in a neighbour ’s car which had been followed by officer PERSON ’s car .

On DATE the ORG refused to institute criminal proceedings against the police officers on grounds similar to the earlier decisions , referring in addition to the explanations collected in the course of the latest round of pre - investigative enquiries . The ORG stated that ORG rulings of CARDINAL DATE and DATE had been impossible to comply with since investigative actions indicated by the court could only be conducted once criminal proceedings had been initiated and not at the stage of pre - investigation enquiries . The applicant ’s mother appealed .

On DATE ORG set aside the decision of DATE and remitted the materials for additional inquiry . The court held in particular that the ORG had failed to resolve the contradictions in the medical evidence . The ORG had also failed to resolve the contradictions between the applicant ’s , witness GPE ’s , and the police ORG accounts of the circumstances of the use of force during the applicant ’s arrest , which , in the court ’s opinion , could explain the documented injuries .

In the course of the subsequent round of pre - investigation enquiries the ORG obtained written explanations from paramedic PERSON She stated that she had not seen any signs of injury on the applicant on DATE . She had not been pressured by the police . The applicant himself had not voiced any complaints , but his mother had said that her son had been beaten up . She also stated that she was not a specialist in forensic medicine and could not speculate as to the origin of injuries which had been documented later .

On DATE the ORG requested an opinion of a forensic medical specialist on a number of questions concerning the applicant ’s injuries , in particular whether his injuries , as recorded in the available medical documentation , could have been inflicted CARDINAL p.m. on DATE and TIME on DATE .

On DATE the ORG refused to institute criminal proceedings . The ORG noted , in particular , that ORG , in the rulings of DATE , DATE and CARDINAL DATE , had indicated the need to conduct certain investigative actions , namely confrontation between the applicant and the police officers and reconstruction of events with the participation of the applicant and forensic experts . The ORG stated that these instructions had been impossible to comply with since such actions could only be conducted once criminal proceedings had been initiated and not at the stage of pre - investigation enquiries . The ORG also stated that the applicant ’s injuries recorded at TIME on DATE were consistent with the police ORG statements concerning the applicant ’s arrest and handcuffing .

On DATE the ORG informed the ORG that its decision of DATE had been a “ mere copy ” of the decision of CARDINAL DATE and had failed to comply with ORG ruling of CARDINAL DATE . The ORG directed the ORG to fully comply with ORG instructions . According to the Government , the ORG had then conducted a new round of pre - investigation enquiries and as a result the decision of DATE was allowed to stand .

On DATE a forensic medical expert produced a report in response to the ORG ’s request of DATE and based on the medical evidence available in the case file . The expert stated , in particular , that it could not be ruled out that the applicant ’s documented injuries could have been inflicted CARDINAL p.m. on DATE and TIME on DATE . The expert also took the opinion that the diagnoses of contusion of the soft tissues of the head and of the rib cage , numerous bruises of arms , shoulder blades and spine which had been noted by the hospital staff on CARDINAL DATE and by PERSON on DATE had not been confirmed by objective forensic medical information or the results of any tests , and for these reasons could not be taken into account in the forensic medical analysis .

According to the applicant , he had first learned about the ORG ’s decision of DATE from the ORG ’s observations in the present case .

On DATE the applicant ’s mother challenged the decision of DATE before ORG .

At the time of the most recent communication from the applicant the proceedings before ORG were pending .


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

NORP The applicant , PERSON , is a NORP national . The President granted the applicant ’s request for her identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . She was represented before the ORG by Mr NORP GPE , acting on behalf of ORG .


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

The applicant was born in DATE and lives in PERSON .

He was employed by ORG , a company based in PERSON ( hereinafter “ the debtor ” ) .

Since the debtor had failed to fulfil its obligations toward its employees , the applicant brought a civil claim , seeking payment of salary arrears and various social security contributions .

On DATE ORG ( PERSON ) in PERSON rendered a decision ordering the debtor to pay him certain sum . On DATE this decision became final .

Due to the debtor ’s failure to fulfil its obligations from this decision , the applicant submitted an enforcement request . On DATE the ORG ( PERSON ) in Požega issued an enforcement order to that effect .

On DATE ORG ( NORP sud ) in PERSON opened insolvency proceedings in respect of the debtor . As a result , all of the ongoing enforcement proceedings against the debtor were terminated .

The applicant duly reported his claim based on the above - mentioned court decision to the insolvency administration .

On DATE the court accepted the applicant ’s claim .

NORP On DATE the applicant ’s representative informed the ORG that the decision at issue had been partially enforced in the insolvency proceedings .

The insolvency proceedings in respect of the debtor are still ongoing .

The debtor , which operated as a socially - owned company , was privatised on DATE .

On DATE the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations .

Following the annulment of the debtor ’s privatisation the ORG owned PERCENT of shares in the company .

On DATE the ORG sold its shares to a private company .


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

Erik Møse;Julia Laffranque;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

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

The applicant appealed . On DATE ORG modified the judgment on appeal . It characterised the offence as an abuse of power and reduced the sentence to one and a half years’ imprisonment . A prosecutor was present during the hearing and made oral submissions . The applicant also attended the hearing , but was not represented . As it happened , on the same day his lawyer had asked ORG to examine the case in his absence .

DATE and DATE the applicant was held in remand prison GPE in GPE . The prison was overcrowded .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing;Equality of arms)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

At CARDINAL p.m. on DATE the applicant was apprehended by officers of ORG ( ORG , “ the drugs police ” ) during a test purchase of drugs from him . According to the applicant , he was brought to their LOC at QUANTITY His account was corroborated by CARDINAL drug police officers and CARDINAL attesting witnesses . An arrest record was not compiled . Furthermore , at QUANTITY on the following day he was put in a cell that had not bed or stool , light , lavatory or running water , and was smeared with dirt and faeces . During his detention he had not been provided with food or drink , or permitted to use the toilet , but had had to urinate in a plastic bottle . At TIME a criminal case was instituted against the applicant , and TIME later an investigator drew the arrest record , thus formally remanding the applicant in custody . At TIME on DATE he was transferred to a temporary detention centre .

On DATE the ORG of Samara remanded the applicant in custody . In particular , the court mentioned the following arguments : seriousness and nature of charges ; previous conviction not being expunged ; absence of “ regular source of income ” ; hence possibility of continuing criminal activities or absconding or obstructing justice in any other manner . The applicant did not appeal .

On DATE ORG extended the applicant ’s detention until DATE finding that the grounds on which the preventive measure had previously been imposed still persisted and there was no reason to vary the preventive measure . Additionally , the court mentioned that the applicant had permanent place of residence and employment but it further stated that the applicant “ did not have a regular source of income ” .

On DATE ORG dismissed the applicant ’s appeal , endorsing the reasoning of the district court . The prosecutor was present at the appeal hearing unlike both the applicant and his counsel .

On DATE the Kuybyshevskiy ORG of Samara found the applicant guilty of selling large quantities of narcotics and sentenced him to CARDINAL years’ imprisonment in a strict - security institution .

On DATE ORG upheld the conviction . The prosecutor was present at the appeal hearing whereas both the applicant and his counsel were absent .


Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice;Criminal offence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant owns PERCENT of the shares in a limited liability company which is active in the construction and decoration business . The applicant is the managing director and a member of the board of directors of the company .

NORP In DATE the tax authorities carried out a tax inspection of the company and concluded that it had failed to declare and pay a considerable amount of taxes and that it had , inter alia , paid salaries off the books and undertaken other fraudulent activity .

On DATE the tax authorities imposed additional income tax and also tax surcharges ( veronkorotus , skatteförhöjning ) both on the company and on the applicant for DATE , DATE , DATE and DATE . The applicant apparently did not appeal against those decisions and the bailiff seized the imposed sums . The period set for appeal in tax matters is DATE counted from the beginning of the calendar year following DATE when the initial taxation decision was taken . Therefore the taxation concerning DATE , DATE and DATE became final on DATE , DATE , and DATE respectively . The period for appeal for DATE elapsed on DATE .

NORP In DATE the police started a criminal investigation into the applicant ’s activities . On DATE the prosecutor brought charges against the applicant for accounting offence ( kirjanpitorikos , bokföringsbrott ) and aggravated tax fraud ( törkeä veropetos , grovt skattebedrägeri ) on CARDINAL counts . The first count concerned DATE and the applicant ’s activities as the managing director and a member of the board of directors of the company . The applicant was accused of aggravated tax fraud as he had deducted fabricated receipts , failed to declare the company ’s real income , paid salaries off the books and , consequently , the tax imposed on the company had been too low . The second count concerned DATE and from DATE . The applicant was accused of aggravated tax fraud as he had failed to declare his own income and , consequently , the tax imposed on him had been too low . The tax authorities joined the charges and presented a compensation claim totalling approximately the amount of avoided taxes .

On DATE ORG of GPE ( käräjäoikeus , tingsrätten ) convicted the applicant of CARDINAL counts of aggravated tax fraud as charged and of accounting offence . He was sentenced to imprisonment for DATE and ordered to pay the tax authorities CARDINAL ( ORG ) plus interest as compensation . It was noted that the sums already seized from the applicant in the administrative proceedings could be deducted from the compensation . In addition , he was banned from undertaking business activities for DATE .

NORP By letter dated DATE the applicant appealed to ORG of GPE ( hovioikeus , hovrätten ) , requesting that ORG judgment be quashed and the charges dismissed . He relied also on the principle of ne bis in idem and the ORG ’s case - law in that respect .

On DATE ORG , after having held an oral hearing , upheld the judgment for the most part , but considered in part that the accounting offence was aggravated and ordered the applicant to pay ORG CARDINAL more compensation to the ORG . The court considered that , as long as the time - limit for appeal had not elapsed with regard to DATE at the moment of bringing the charges against the applicant in DATE , there was no issue of ne bis in idem . Furthermore , it considered that , as concerned DATE , the time - limit for appeal had elapsed on DATE and thus the taxation had become final before the charges were brought against the applicant . However , as there still existed another kind of tax appeal which the applicant could have used , ORG finally considered that the ne bis in idem principle did not prevent the examination of the charges against the applicant also concerning DATE .

By letter dated CARDINAL DATE the applicant appealed to ORG ( korkein oikeus , högsta domstolen ) , reiterating the grounds of appeal already presented before ORG . He also requested an interim order staying the execution of the lower court ’s judgment .

On DATE ORG dismissed , without examining the merits , that part of the criminal conviction that concerned DATE as it considered that the fact that the tax surcharges imposed on the applicant had become final in DATE , that is , before the charges had been brought against the applicant in DATE , prevented the examination of the matter . Otherwise the lower court ’s judgment was upheld . The court considered that as long as the time - limit for appeal had not elapsed with regard to DATE at the moment when the charges were brought against the applicant , there was no issue of ne bis in idem . As a part of the applicant ’s conviction was dismissed without examining the merits , his sentence was accordingly also lowered to imprisonment for DATE and DATE .

On DATE the applicant lodged an extraordinary appeal with ORG , requesting the reopening of the case on the basis of incorrect application of the law and the prohibition on self - incrimination .

NORP Apparently in DATE this extraordinary appeal was refused by ORG .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

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

The first applicant was born in DATE and currently lives in GPE , GPE . She came to GPE in DATE holding a visa and settled in GPE . She was later issued temporary residence permits , until she was granted a permanent residence permit on DATE .

The first applicant subsequently met an NORP citizen and married him . From that union , the second applicant was born in DATE in GPE . DATE , but continued to hold joint custody of their son .

Other family members of the first applicant living in GPE are her daughter from a first marriage , her daughter ’s husband and child , her brother and her parents .

The second applicant has NORP citizenship and lives in GPE with his father . Other family members of his living in GPE are his grandparents , his uncle , his CARDINAL - sister and her family .

The first applicant ’s criminal record shows CARDINAL convictions .

On DATE ORG ( Bezirksgericht ) convicted the first applicant of deliberately causing bodily harm and sentenced her to pay a fine of CARDINAL NORP Schillings ( “ ATS ” ) .

On DATE ORG ( Straflandesgericht , “ the Criminal Court ” ) convicted the first applicant of attempted aggravated fraud and sentenced her to CARDINAL months’ imprisonment , suspended with a probationary period of DATE .

On DATE the NORP ORG convicted the first applicant of causing damage to private property and sentenced her to pay a fine of CARDINAL DATE rates ( PERSON ) , in sum ORG CARDINAL .

On DATE ORG convicted the first applicant of causing damage to private property , bodily harm and assault on a police officer and sentenced her to CARDINAL months’ imprisonment , again suspended with a probationary period of DATE .

On DATE ORG convicted the first applicant and her former husband ( the second applicant ’s father ) of partly attempted , partly completed fraud and sentenced them to CARDINAL months’ imprisonment , suspended on probation .

On DATE ORG convicted the first applicant of aggravated fraud and sentenced her to CARDINAL months’ imprisonment . The probationary period for her previous conviction was extended to DATE .

On CARDINAL DATE the first applicant was convicted of partly attempted , partly completed aggravated fraud on a commercial basis and sentenced to CARDINAL years’ imprisonment .

The first applicant started serving her sentence on DATE and was released on DATE . During that time , the second applicant lived with his father .

In a letter dated DATE ORG ) warned the first applicant that , if convicted once more , an exclusion order could be issued against her ( Aufenthaltsverbot ) .

On DATE , following her latest conviction and threeyear prison sentence , ORG ) issued an unlimited exclusion order against the first applicant , pursuant to sections CARDINAL § DATE § CARDINAL of LAW ( Fremdenpolizeigesetz ) . It stated that after the first applicant ’s conviction in DATE , ORG had refrained from issuing an exclusion order against her , because she had already been living in GPE for DATE and held a permanent residence permit . The authorities stated that at that point they did not consider that she posed a serious threat to public order and security within the meaning of section CARDINAL § CARDINAL of LAW . However , her most recent conviction did justify the assumption that her further stay in GPE endangered public order and safety . The exclusion order was necessary to protect the economic wellbeing of GPE and to prevent criminal activities , hence it was in accordance with LAW . It further held that even though the exclusion order constituted an interference with her private and family life , because her children and her parents lived in GPE , the public interest in her expulsion outweighed her interest in remaining in the country .

The first applicant appealed . During the oral hearing at ORG ( Unabhängiger Verwaltungssenat ) on DATE , she provided a letter from a general practitioner , which stated that the separation from the second applicant due to her imprisonment had caused her son severe mental stress , and that it was important for his development to grow up with his mother . She stated that her son visited her frequently in prison , and that they tried their best to keep up their relationship . Furthermore , she pointed out that she also had other close family ties to GPE , with her daughter , her brother and her parents living there . She regretted her criminal convictions and requested that the exclusion order be lifted .

On DATE ORG dismissed the appeal . It took into consideration the nature and seriousness of the offences the first applicant had committed and the resulting personality profile , reiterating that she had started her criminal activities shortly after her arrival in GPE . Her latest criminal conviction was based on numerous offences against private property , serving her as a source of income . She had therefore demonstrated that she did not respect the property of others , and that she constituted a danger to the public because of her fraudulent activities , which she had committed over a long period of time . Previous convictions for bodily harm and assault on a police officer showed that she did not shy away from attacks on life and limb either . Because she was serving her sentence at the time of the decision , it could not be assumed that the danger emanating from her person had diminished , which was why the unlimited exclusion order was justified .

Concerning her private and family life , ORG held that the first applicant was well integrated in GPE , and that many of her family members lived there , in particular her then DATE son . The exclusion order therefore constituted an interference with her rights under LAW . However , due to her criminal record and the serious nature of her offences , the public interest in her expulsion outweighed her personal interest in respect of her private and family life . Furthermore , because of the short distance between GPE and GPE of TIME by train , it would be possible for her family members to visit her frequently . The first applicant came to GPE when she was DATE , speaks the NORP language and could easily reintegrate in her country of origin . Because of the seriousness of her crimes , and because the presence of her family members in GPE could not deter her from repeatedly committing offences , the exclusion order was proportionate to the aim pursued . Because it was not possible to assess when the first applicant would cease to represent a danger , there was no reason to limit the exclusion order . ORG added that the first applicant could apply for the lifting of the exclusion order after an appropriate interval , and in any event DATE after its enforcement , if the circumstances for its issue had changed significantly .

NORP The applicant lodged a complaint with ORG ) relying , inter alia , on LAW .

On DATE the ORG refused to deal with the complaint and referred it to ORG ( Verwaltungsgerichtshof ) .

On DATE ORG rejected her complaint due to the lack of any important legal question to be answered . It stated that ORG had not deviated from the previous jurisprudence of ORG .

On DATE the first applicant lodged an application for the exclusion order to be lifted pursuant to section CARDINAL of LAW .

On DATE ORG dismissed the application .

On DATE ORG partly granted the first applicant ’s appeal and reduced the duration of the exclusion order to DATE , because the relevant legal provisions had changed in the meantime . Pursuant to section CARDINAL ( formerly section DATE ) of LAW as in force at the relevant time , an exclusion order against a citizen of ORG ( ORG ) may not exceed DATE in duration . Pursuant to paragraph CARDINAL of that provision , the exclusion order would therefore cease to be in force on DATE , irrespective of whether the first applicant actually left the country .

The first applicant appealed against this decision . On unspecified dates , ORG and ORG rejected her complaints .

The GPE Youth and ORG , in a statement dated DATE , noted that the separation of the applicants due to the first applicant ’s imprisonment had already had a traumatizing effect on the second applicant and had strained the relationship between mother and son . Another separation would likely re - traumatize the second applicant and severely jeopardize his psychosocial development , which is why it would be in the best interest of the child to grant his mother a residence permit .

A medical report by psychologist ORG dated DATE attested that the second applicant was suffering from post - traumatic stress disorder , emotional disorder and separation anxiety as a result of the separation from his mother when she had to serve her time in prison . He was in need of constant psychological care and had voiced suicidal thoughts after he had learned that his mother would be expelled . Another separation from his mother would traumatise him again and have long - term effects on his mental state .

The neurologist PERSON , in a report dated DATE , diagnosed the first applicant as suffering from a pre - suicidal syndrome and stress reaction and stated that any additional stress was to be avoided . Her psychologist E.G. , in a statement of DATE , attested that she suffered from depression , anxiety and claustrophobia . She had also voiced suicidal thoughts .

A subsequent application by the first applicant for the exclusion order to be lifted , dated DATE , was unsuccessful .

On DATE the first applicant was expelled to GPE . The second applicant has lived with his father in GPE since then . Both parents continue to share custody .


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

The applicants , Mr PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

On DATE NORP Prime Minister PERSON was assassinated . On DATE a state of emergency was declared in GPE . On DATE ORG issued a directive which limited civil rights during the state of emergency . Among others , habeas corpus and the right to counsel during police custody were suspended .

The applicants were arrested on DATE . They were held incommunicado at different locations until CARDINAL DATE . According to the applicants , during that time they were subjected to torture , notably , beatings , asphyxiation , electric shocks , mock executions and threats .

On DATE the applicants were brought before the investigating judge who remanded them in custody pending criminal investigation against them . The applicant PERSON complained before the investigating judge that he had been tortured , while the second applicant ’s lawyer said that his client had “ injuries on his body and certain health issues ” and requested that his client receive medical examination . It would appear that no steps were taken in regard to these complaints by the investigating judge . On DATE the ORG counsel requested the investigating judge to gather the medical documentation concerning the applicants from different prisons in which they had been detained .

On DATE ORG reported that the applicants had allegedly been tortured . In response to this report , ORG ( “ Inspectorate ” ) instigated an internal investigation on DATE . On DATE the applicants and several witnesses were questioned and a report was finalised on DATE . Among the facts mentioned in the report , it is stated that on DATE a doctor had noted haematomae on both applicants and that on DATE prison guards had noted “ visible injuries ” on both applicants . The report concluded that the allegations from ORG report were “ partly founded ” : on the one hand , the use of force against the applicants had not been lawful , but on the other hand , their treatment by the police had not amounted to torture . The ORG recommended ORG further to investigate this case , identify the persons who had used force , examine the reasons why the force had been used , and sanction those responsible as appropriate . It is not clear whether ORG did so .

On DATE the applicants filed a criminal complaint alleging torture against unknown persons . The public prosecutor requested further information concerning this case from FAC .

On DATE the ORG requested more information concerning the applicants’ treatment from FAC .

On DATE , the applicants supplemented the criminal complaint and asked the public prosecutor to interview certain police officers .

On DATE the public prosecutor received a report of ORG .

On DATE the ORG again requested ORG to provide information concerning the applicants’ treatment .

On DATE the public prosecutor rejected the ORG criminal complaint and the applicants were informed of that fact on DATE .

On DATE the chief of ORG informed the ORG that force had indeed been used against the applicants but that the use of force had been lawful .

On DATE , the applicants filed another criminal complaint , indicating the names of the alleged perpetrators for the first time . The criminal complaint was rejected on DATE and the applicants were notified of that fact on DATE . The applicants had the right to pursue a subsidiary criminal prosecution ( preuzeti krivično gonjenje ) within DATE of the date that decision had been served on them by filing a request for an investigation ( zahtev za sprovođenje istrage ) . The applicants did not take over the criminal prosecution .

On DATE , upon the ORG request , they received a summary of the ORG ’s report of DATE .

On DATE , following an order by ORG , the applicants were served with a longer version of the ORG ’s report of DATE .

On DATE both applicants were sentenced to prison sentences for organised crime . During the first - instance trial and in their appeal , the applicants maintained that they had been subjected to torture in police detention .

A hearing for their appeal was scheduled before a CARDINAL - judge committee of ORG for DATE and DATE . However , on DATE the judge rapporteur in this case was arrested and charged with accepting money from one of the applicants to quash the first - instance judgment and release the applicants from pre - trial detention . Shortly after that arrest , CARDINAL of the ministers in ORG publicly stated that CARDINAL other judges of ORG should have also been arrested . The President of ORG then appointed another judge rapporteur and scheduled a hearing for CARDINAL and DATE .

On DATE CARDINAL of the GPE newspapers published an article claiming that the new judge rapporteur was also under pressure from criminal cartels through her daughter . Her daughter then made a public statement refuting those allegations .

On DATE ORG changed the legal qualification of the applicants’ offence and upheld the remainder of the first - instance judgment .

The applicants appealed on points of law ( zahtev za ispitivanje zakonitosti pravosnažne presude ) complaining that the judges dealing with their case had acted under pressure from the executive and the media and that they had therefore lacked independence . Additionally , the applicants claimed that the new judge rapporteur had had DATE to prepare a case which consisted of CARDINAL of pages of material . The applicants submitted a statement by the second judge rapporteur in their case ( from the criminal trial of the first judge rapporteur ) according to which she had been obliged to read TIME per day .

On DATE , ORG , in a different formation rejected the ORG appeal on points of law . ORG found that the new judge rapporteur had been appointed in accordance with the law and the fact that the trial had attracted significant attention from the media and general public did not mean that the court had acted under pressure . The applicants received that decision on DATE .

The Criminal Code DATE ( published in Official Gazette of GPE no . CARDINAL , amendments published in ORG of GPE nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , and ORG nos . CARDINAL , CARDINAL , FAC , FAC , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL and CARDINAL ) was in force from DATE until DATE . The relevant Article reads as follows :

“ Whoever acting in an official capacity ill - treats or insults another or otherwise treats such person in a humiliating and degrading manner , shall be punished with imprisonment from DATE . ”

The Code of Criminal Procedure DATE ( published in ORG of GPE no . CARDINAL/CARDINAL , amendments published in ORG of GPE no . CARDINAL/CARDINAL and ORG nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL/CARDINAL ) was in force from DATE until DATE . Most criminal offences ( including ill - treatment by public officials acting in an official capacity ) are subject to public prosecution , but some minor offences are only subject to private prosecution . Pursuant to LAW , the public prosecutor must prosecute when there is sufficient evidence that a named individual has committed a criminal offence which is subject to public prosecution . LAW provides that when the public prosecutor decides not to prosecute such an offence because of the lack of evidence , the victim of the offence may nevertheless start a subsidiary prosecution within DATE from the notification of the public prosecutor ’s decision .


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

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

The applicant was born in DATE and lives in GPE ( GPE ) .

In DATE the applicant married A. , a NORP national . There were CARDINAL children of the marriage : PERSON , born in DATE , C. , born in DATE , and NORP , born in DATE .

The children are all NORP nationals , while PERSON is also a NORP national , and ORG and NORP also have GPE nationality .

For DATE , until DATE , the family lived together in CARDINAL household in GPE . A. then moved to stay with friends , took the children with her , the couple agreed on alternating custody , and they started receiving marriage counselling . Nevertheless , PERSON filed for divorce , but then withdrew her petition .

On DATE left GPE for GPE , taking the children with her . The following day she informed the applicant that they had left and that she had no intention of coming back .

In DATE filed for divorce in GPE and requested that the children be entrusted to her custody by way of an interim measure . The status and outcome ( if any ) of these proceedings is not known .

On DATE the applicant filed an application for the return of the children to GPE as the country of their habitual residence , relying on the ( NORP ) International Private and LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) , ORG ( ORG ) No . CARDINAL of DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility , and LAW .

On DATE the applicant ’s Hague Convention application was transmitted to the Bratislava I ORG , through the intermediary of ORG responsible for implementing LAW .

On DATE ORG ordered the children ’s return to GPE , having found that it was the country of their habitual residence , that they had been removed from there wrongfully , and that no obstacles to the return had been established .

On DATE ORG dismissed an appeal filed by ORG and upheld the return order . The matter thus became resolved by force of a final and binding decision on CARDINAL DATE .

On DATE the applicant filed for judicial enforcement of the return order .

Upon several unsuccessful attempts at having NORP comply with the order voluntarily , ORG acceded to the petition on CARDINAL DATE by issuing a warrant for the order ’s enforcement .

On DATE the ORG quashed the enforcement warrant following an appeal by A. It observed that , meanwhile , A. had challenged the decision of DATE by way of a complaint under LAW no . PERSON . , as amended ) to ORG ; that on DATE ORG had declared that complaint admissible ; and that , at the same time , it had suspended the enforceability of the return order pending the outcome of the proceedings on the merits of the complaint of A. ( see paragraphs CARDINAL and DATE below ) .

ORG concluded that , in those circumstances , an essential prerequisite for the enforcement of the return order had lapsed .

Consequently , the matter was remitted to ORG for a new decision to be taken in the light of the outcome of the constitutional complaint of A.

The applicant challenged the decision of CARDINAL DATE by way of an appeal on points of law . He pointed out that there had been no hearing before ORG and that it was only from ORG decision that he had learned of ORG decisions underlying it and of other new relevant facts , such as that the applicant had applied for the enforcement proceedings to be stayed .

As ORG decisions had not been served on him and he had had no knowledge of those facts , he had been deprived of an opportunity to comment and to consider the taking of other legal steps .

This was contrary to the principles of adversary proceedings and equality of arms and , in the applicant ’s submission , he had thereby been “ prevented from acting before the court ” , which constituted an admissibility ground for his appeal under LAW ( f ) of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended – “ ORG ” ) .

On DATE ORG declared the appeal inadmissible . It observed that ORG had of its own motion obtained a copy of ORG decision to suspend the enforceability of the return order , that it had based its decision on it , and that a copy of ORG decision had never been served on the applicant .

However , ORG also noted that ORG decision was binding upon ORG and considered that , therefore , having it served on the applicant and having allowed him to comment could not have had any impact on ORG decision .

Therefore , in ORG conclusion , the ground invoked by the applicant for the admissibility of his appeal had not been given .

In consequence , it became incumbent upon ORG to rule on the applicant ’s enforcement petition anew , which it did on DATE by dismissing it .

ORG observed that on CARDINAL DATE ORG had quashed the decision upholding the return order and that it had remitted the appeal of ORG against that order to ORG for a new determination ( see paragraph CARDINAL below ) . The return order was thus pending on appeal and , as such , it was no longer enforceable .

ORG decision became final and binding on DATE .

On DATE challenged the decision of DATE to uphold the return order ( see paragraph CARDINAL above ) by way of a complaint to ORG . It was directed against ORG and , in it , she submitted that the applicant had filed observations in reply to her appeal against the return order ; that she had not been served a copy of these observations ; that her appeal had been determined without a hearing ; and that she had accordingly been deprived of the opportunity to comment on those observations , which was contrary to her rights under Articles CARDINAL § CARDINAL ( right to judicial protection ) , CARDINAL § CARDINAL ( equality of parties to judicial proceedings ) and CARDINAL § CARDINAL ( right to comment on the evidence assessed ) of the LAW , as well as LAW ( fairness ) of the LAW .

In addition , ORG requested that ORG indicate an interim measure to the effect that the enforceability of the contested decision be suspended .

On DATE ORG declared the complaint admissible and ruled that the enforceability of the decision of CARDINAL DATE should be suspended pending the outcome of the constitutional proceedings on the merits .

As to the latter ruling , ORG found ( i ) that the suspensive measure was not contrary to any important public interest , ( ii ) that not having the enforceability of the return order suspended could lead to an irreversible situation and “ cause detriment to the property sphere ” of A. in potential violation of her fundamental rights and freedoms , and ( iii ) that having the enforceability suspended “ gave rise to no risk of damage to any party concerned ” .

In the ensuing proceedings on the merits , ORG as the defendant of the complaint submitted , inter alia , that there was no statutory requirement for observations in reply to an appeal to be communicated to the appellant for further observations , unless the former observations had a substantial impact on the determination of the appeal . However , the applicant ’s observations in reply to the appeal by ORG had had no such impact .

In a judgment of CARDINAL DATE ORG found a violation of the rights of A. as identified above ( see paragraph CARDINAL ) , quashed the decision of DATE , remitted the case to ORG for a new determination of the appeal of PERSON against the return order , and awarded her legal costs . In principle , ORG fully embraced the line of argument advanced by A.

ORG also noted that the applicant had sought leave to intervene in the proceedings as a third party .

In that respect , it observed that constitutional proceedings were conducted in the procedural framework laid down in LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) , as a lex specialis , and in the ORG , as a lex generalis . LAW however envisaged no standing for third parties to intervene in proceedings on individual complaints , and its quality of a lex specialis excluded the application of the third - party - intervention rules under the ORG .

For that reason , ORG observed specifically that it had taken no account of the submissions made by the applicant .

The applicant obtained a copy of ORG judgment on DATE .

On DATE the applicant lodged a complaint with ORG , alleging inter alia a violation of his rights under LAW § CARDINAL of the LAW CARDINAL § CARDINAL of the Convention ( fairness ) in the enforcement proceedings , in particular in their phase before ORG and ORG , and raising in substance the same arguments as in his appeal on points of law ( see paragraph CARDINAL above ) . The applicant pointed out , in addition , that that it had been for substantially the same reasons that ORG itself had found a violation of the rights of A. in relation to her appeal against the return order .

On DATE ORG declared the complaint inadmissible . It fully endorsed the reasoning behind ORG decision of DATE ( see paragraph CARDINAL above ) and concluded that , accordingly , the complaint was manifestly ill - founded .

The decision was served on the applicant on DATE .

Following ORG judgment of CARDINAL DATE , on DATE , ORG decided again on the appeal by PERSON against the return order of CARDINAL DATE by quashing that order and remitting the case to ORG for a new determination .

In the subsequent period a number of hearings were held at first instance and courts at CARDINAL levels of jurisdiction dealt with various procedural matters such as translations of documents into a language the applicant understood , court fees and costs of the translations , the applicant ’s visiting rights in relation to his children pending the outcome of the proceedings on the merits , an injunction prohibiting A. to leave and remove the children form the territory of GPE , admission of the mother of A. to the proceedings as a third party , CARDINAL procedural fines on A. , her challenges to the first - instance judge for bias , her request for a legal - aid lawyer and establishing her whereabouts . There is no indication that any of the fines and interim rulings were actually enforced .

No decision on the merits was taken and ORG decided to terminate the proceedings on DATE . It referred to LAW last sentence ) of LAW , which permits termination of the proceedings if there is an indication that the child in question has been taken to another ORG , and observed that PERSON and the children had moved to GPE and had established residence there .

On DATE the applicant appealed and his appeal appears to be still pending .


Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

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

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

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

NORP On DATE the applicant was abducted by masked persons . Under the threat of killing him and his daughter they obliged the applicant to sign a document on transfer of his share in a business company . He was released on DATE .

After his release the applicant contacted ORG of ORG in ORG . He was heard several times by that authority . Subsequently the case was transferred to ORG which heard the applicant again . These interviews included those on DATE and DATE . In both , the applicant submitted that , during the incident , amounts of money in various foreign currencies had been taken away from him . In addition , in the latter questioning , he submitted that , by the forced transfer of his business share , he had suffered damage worth the equivalent of MONEY ( ORG ) and that he wished to join the criminal proceedings as an aggrieved party under LAW . , as applicable at the relevant time – “ the DATE ORG ” – see paragraphs CARDINAL and DATE below ) .

The interview of DATE followed the opening by ORG of a criminal investigation DATE into the suspicion that the offences of extortion and unlawful restriction of personal liberty might have been committed by CARDINAL or more persons unknown .

DATE the police authority stayed the investigation and ORG ( “ the PPS ” ) at several levels ordered that it be resumed on several occasions . In DATE the case was transferred to ORG ( “ the OCOC ” ) .

On DATE CARDINAL persons , A. and PERSON , were charged with extortion and restricting the applicant ’s personal liberty .

On DATE the applicant was questioned by the investigator . He submitted that , in terms of compensation , he claimed ORG CARDINAL in respect of the business share and ORG CARDINAL,CARDINAL in respect of the foreign currency taken away from him .

On DATE the proceedings against B. were terminated as her prosecution had become statute barred .

On DATE the proceedings were split in CARDINAL parts . The first set of proceedings concerned PERSON , who was suspected of having ordered and organised the applicant ’s abduction . The second set aimed at identification of the persons who had abducted the applicant . Those proceedings were stayed on CARDINAL DATE but then resumed following an order by the PPS of DATE . They are still pending before the OCOC .

Meanwhile , in the first set of proceedings , on DATE charges of extortion and restricting personal liberty had been brought against another individual , C.

On DATE and C. were indicted to stand trial in ORG on the charges mentioned above .

On DATE ORG discontinued the proceedings . It observed that the police and the investigative authorities had generated such delays at the pre - trial stage of the proceedings that much of the evidence had lost validity . There had been repeated unlawful and arbitrary actions by these authorities such as , for example , the discontinuation of the proceedings against B. but not against the other defendants . As a result , there was no valid evidence showing that GPE and C. had committed the offences of which they stood accused .

On DATE ORG quashed the decision of CARDINAL DATE and remitted the matter to ORG for a new determination , following appeals by the applicant and the PPS .

The proceedings are still pending .

On DATE the applicant lodged a complaint with ORG . He alleged , inter alia , that the ORG and several offices of the PPS involved in the above proceedings had breached his right to a fair hearing within a reasonable time .

On DATE ORG declared the complaint inadmissible as being manifestly ill - founded .

With reference to LAW . , as amended - “ the DATE ORG ” - see paragraphs CARDINAL et seq . below ) , it held that a person who considers to have suffered damage as a result of a criminal offence may claim to be a victim of a breach of his or her right to a hearing within a reasonable time only after charges of that offence have been brought against a specific person .

ORG therefore had the power to examine only the proceedings subsequent to the bringing of charges against GPE and NORP on DATE . As the applicant ’s complaint was only concerned with the pre - trial phase of the proceedings , the period under examination ended on DATE when the case was transmitted to ORG by way of the indictment . The period under consideration had therefore lasted DATE and DATE which was not excessively long . In support of this conclusion , ORG observed that except for CARDINAL fourmonth period of inactivity the investigator had been acting expeditiously .

The decision was served on the applicant DATE .

Article CARDINAL § § CARDINAL and CARDINAL provide , inter alia , that an aggrieved party in criminal proceedings may attach a third - party claim for damages to the proceedings and request that the court convicting the person charged with a criminal offence ( obvinený ) order the latter to pay compensation for the damage caused to the aggrieved party by the offence .

According to a summary of the relevant judicial practice published in ORG and Standpoints ( ORG súdnych rozhodnutí a stanovísk ) of ORG under no . DATE , a thirdparty claim for damages is properly made if it specifies the defendant against whom it is made , the ground on which it is made , and its amount .

As from DATE , the DATE ORG was entirely replaced by DATE . In so far as relevant , the DATE Code contains provisions ( LAW ) similar to those of the DATE ORG .

A third - party claim must specify the ground and scope of the claim and may only be attached to the criminal proceedings if the matter of compensation has not already been decided upon in civil or other proceedings ( Article CARDINAL § § CARDINAL and DATE ) .

Pursuant to LAW , where a court convicts a person charged with an offence which has caused damage to third persons within the meaning of Article CARDINAL § CARDINAL , as a rule it orders him or her to compensate such damage , provided that the claim has been filed correctly and in due time .

ORG held ( see for example its judgments in cases nos . I. ÚS CARDINAL/CARDINAL ; III . ÚS CARDINAL/CARDINAL ; ORG CARDINAL/CARDINAL and ORG ) that a third party who joined criminal proceedings with a claim for damages has the right to a hearing “ without unjustified delay ” ( Article CARDINAL § CARDINAL of the LAW ) as such a duly lodged claim excludes the possibility of having it decided upon in civil proceedings ( LAW ) .

NORP In a decision of CARDINAL DATE in case no . II . GPE CARDINAL/CARDINAL , relying on its previous decisions nos . GPE CARDINAL/CARDINAL , III . GPE DATE , III . GPE GPE , III . GPE CARDINAL/CARDINAL and GPE . GPE CARDINAL/CARDINAL , ORG upheld the principle that , in accordance with the ORG ’s judgment in the case of PERSON and PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) , an aggrieved party of a criminal offence , who had attached a third - party claim for damages to the criminal proceedings , was entitled to the guarantees of the civil limb of LAW . However , the aggrieved party only benefited from the right to a hearing within a reasonable time under LAW after a charge had been brought against a specific person . Despite a direct argument by the complainant to that effect , ORG gave no answer to the fact that in its judgment in the case of PERSON v. GPE ( no . CARDINAL ) ( no . CARDINAL , § DATE ) , the ORG had found that , as a matter for principle , civil - party claims for damages made in GPE jointly with or subsequently to the lodging of a criminal complaint enjoy the guarantees in question from the moment they were made .

In connection with the present application , ORG produced a report dated DATE concerning the applicability of the right to a hearing within a reasonable time under LAW and its constitutional equivalent to third - party claims for damages attached to criminal proceedings ( adhézne konanie ) . The report may be summarised as follows .

A party aggrieved by a criminal offence may attach a third - party claim for damages to the criminal proceedings concerning that offence under LAW CCP ( see paragraphs CARDINAL et seq . above ) . Neither the statue nor the case - law of ORG make this right dependant on whether or not the defendant has been charged with the offence in question . However , it is only once a charge is brought against a specific person that a concrete legal relationship is created between the aggrieved party and the person charged and it is only then that the aggrieved party becomes entitled to assert the third - party claim against the charged person in the criminal proceedings .

Whether or not a person has been charged with the offence concerned is not a criterion for the aggrieved party ’s being able to make a third - party claim in the criminal proceedings but for that party ’s being able to rely on the right to a hearing within a reasonable time in relation to that claim .


ŠEREMET v. BOSNIA AND HERZEGOVINA, MONTENEGRO AND SERBIA

Ineta Ziemele;Nebojša Vučinić;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

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

The Government of GPE ( “ the Government ” ) were represented by their Agent , ORG . The application was not communicated to ORG .

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

After its declaration of independence on DATE , a brutal war started in GPE . It would appear that CARDINAL people lost their lives and CARDINAL people were displaced in the course of the war . It is estimated that around CARDINAL people went missing and that around DATE of them is still missing . The conflict came to an end on DATE when ORG in GPE entered into force . In accordance with that Agreement , GPE consists of CARDINAL Entities , ORG and PERSON .

NORP In response to atrocities then taking place in GPE , on DATE ORG passed LAW establishing ORG for the former GPE ( “ the ORG ” ) , headquartered in GPE . CARDINAL individuals have already been convicted and proceedings are ongoing for CARDINAL accused . In the period from DATE until DATE , local prosecutors in GPE and GPE were required to submit case files to the ORG for review ; no person could be arrested on suspicion of war crimes unless ORG had received the case file beforehand and found it to contain credible charges ( the “ Rules of the Road ” procedure ) . Moreover , the ORG had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice . As part of the ORG ’s completion strategy , in DATE war crimes chambers were set up within ORG ( “ the ORG ” ) with primacy over other courts in GPE as regards war crimes ( for information about that court and its jurisdiction over war crimes cases , see ORG v. GPE [ ORG ] , nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL , § § DATE , ECHR DATE ) . CARDINAL persons have been finally convicted by ORG .

Furthermore , ORG on ORG ( “ the ICMP ” ) was established at the initiative of GPE President PERSON in DATE . It is currently headquartered in GPE . Reportedly , the ICMP has so far identified by DNA CARDINAL missing persons in GPE , whereas local authorities have identified CARDINAL missing persons by other methods . In DATE the Government of GPE and the ICMP established a ORG , also headquartered in GPE ( see paragraph CARDINAL below ) . It became operational on DATE .

During the DATE - CARDINAL war the GPE neighbourhood of GPE was controlled by the ORG forces . In DATE of the war , many Bosniacs and NORP were killed , disappeared , tortured and/or raped by a paramilitary group led by PERSON , also known as GPE . It would appear that the applicant ’s parents were killed by that group on DATE .

On DATE PERSON , one of the war - time leading political figures of PERSON , pleaded guilty before the ORG to having participated in the persecution of Bosniacs and NORP from , among other areas , the GPE neighbourhood of GPE . She was sentenced to DATE imprisonment .

Cases against PERSON , the war - time civilian leader of ORG , ORG , the war - time military leader of that Entity , and PERSON , a leading political figure of GPE in DATE , are also pending before the ORG . They are charged with the participation in a joint criminal enterprise to permanently remove ORG and NORP from , inter alia , the GPE area .

As indicated in paragraph CARDINAL above , war crimes chambers were set up within ORG in DATE . In DATE an international arrest warrant was issued against PERSON , mentioned in paragraph CARDINAL . He was arrested in GPE and extradited to GPE in DATE . On DATE the Prosecutor of Bosnia and Herzegovina ( “ the State Prosecutor ” ) issued an indictment against him for crimes against humanity . Having heard CARDINAL testimonies , on DATE a Trial Chamber of ORG found him guilty of participation in the commission of a number of killings , beatings , rapes and other crimes in the GPE neighbourhood of GPE in DATE as a part of a widespread and systematic attack against the non - NORP civilian population of that territory and sentenced him to CARDINAL years’ imprisonment ( the heaviest penalty in GPE ) . On DATE an ORG of ORG upheld the conviction against PERSON and rendered its judgment , sentencing him to DATE years’ imprisonment .

On DATE and CARDINAL DATE Trial Chambers of ORG found also CARDINAL of his accomplices guilty of participation in the commission of a number of killings , beatings , rapes and other crimes in the GPE neighbourhood of GPE in DATE as a part of a widespread and systematic attack against the non - NORP civilian population of GPE and sentenced them to CARDINAL ( PERSON ) and CARDINAL years’ imprisonment ( PERSON , also known as GPE ) . On DATE and CARDINAL DATE , respectively , ORG of ORG upheld those first - instance judgments .

On DATE the applicant sought and obtained declarations of presumed death with respect to his parents .

The applicant ’s father , PERSON , was identified by DNA on DATE . His mother , PERSON , has not yet been identified .

On DATE ORG held that there had been a violation of LAW and CARDINAL of the Convention . It ordered PERSON to release any and all information in its custody pertaining to the fate or whereabouts of the applicant ’s parents and to conduct a full , meaningful , thorough and detailed investigation aimed at making known the fate or whereabouts of the applicant ’s parents and bringing the responsible to justice . Lastly , it awarded the applicant MONEY ( BAM ) for non - pecuniary damage .

By a judgment of ORG of DATE the applicant was awarded damages as regards the disappearance and death of his parents in the amount of BAM CARDINAL . PERSON lodged an appeal against that judgment which would appear to be still pending .

LAW entered into force on DATE ( ORG GPE no . CARDINAL ) . In accordance with section CARDINAL of the Act , families have the right to know the fate of missing persons ( that is , their whereabouts if they are still alive , or the circumstances of death and their place of burial , if they are dead ) and to obtain their mortal remains . Under section CARDINAL of the Act , the relevant domestic authorities have the obligation to provide any and all such information in their keeping .

Section CARDINAL of that LAW provides for the setting up of a Missing Persons Institute . In DATE the ICMP and the Government of GPE founded the ORG , headquartered in GPE , pursuant to that provision and the Agreement on Assuming ORG - founders of ORG , no . CARDINAL/CARDINAL ) . It became operational on DATE . CARDINAL of the organs of that ORG , comprised of CARDINAL representatives of families of missing persons ( see LAW mentioned above ) .

In accordance with section CARDINAL of the LAW , the status of missing person comes to an end on the date of identification . Therefore , if a missing person is declared dead but the mortal remains have not been found and identified , the process of tracing continues .

Pursuant to LAW , the families of missing persons are entitled to DATE financial support under some conditions , notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support ( in other words , if they are not in paid employment and do not receive welfare benefits beyond PERCENT of the average salary paid in GPE ) . LAW provides for the setting up of ORG for that purpose . However , as the ORG has not yet been established , no payment has been made so far .

Families of missing persons are also entitled to , inter alia , temporary administration of the property of missing persons , burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons ( section CARDINAL of the Act ) .

Section CARDINAL of the LAW provides for the setting up of ORG with the aim of verifying information about missing persons from different sources ( government agencies , associations of families of missing persons , the FAC and ORG ) and creating a single database . While ORG were founded on DATE , it would appear that the verification process is still ongoing . Once that process is completed , all those recorded as missing will be declared dead ( section CARDINAL of the Act ) , but the tracing process will nevertheless continue ( see paragraph CARDINAL above ) .

Despite the fact that the verification process outlined in paragraph CARDINAL above is pending , any person may request that a declaration of presumed death be issued with respect to a missing person ( see the Non - Contentious Procedure Act DATE , ORG GPE , nos . CARDINAL , CARDINAL , CARDINAL ; and ORG DATE , ORG of ORG , no . CARDINAL ) .


CASE OF JAKŠOVSKI AND TRIFUNOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano;Ksenija Turković

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

Following allegations raised by a lawyer ( which were subsequently withdrawn ) , ORG , a member of ORG ( “ the ORG ” ) , a body vested with jurisdiction to decide , inter alia , on the dismissal of judges ( see PERSON to the LAW , paragraph CARDINAL below ) , made enquiries through the President of the court in which the first applicant worked as a judge . A preliminary inquiry was carried out , and on DATE PERSON requested , under sections DATE and CARDINAL of LAW of DATE ( “ the CARDINAL Act ” , see paragraph CARDINAL below ) and section CARDINAL of the Rules governing professional misconduct proceedings in respect of a judge ( “ the Rules ” , see paragraph CARDINAL below ) , that the ORG initiate professional misconduct proceedings in respect of the first applicant . In the request PERSON claimed that the first applicant had not been diligent in conducting proceedings in a civil case . The first applicant responded in writing .

On DATE the ORG set up , under LAW of LAW ( see paragraph CARDINAL below ) , a Commission for determination of professional misconduct by a judge ( GPE за утврдување нестручно и несовесно вршење на судиската функција , hereinafter “ the Commission ” ) .

On the basis of ORG ’s request and the ORG ’s report as to whether the request was justified , on DATE the plenary of the ORG initiated proceedings for professional misconduct in respect of the first applicant .

On DATE the Commission held a hearing at which it heard evidence from GPE and the first applicant . It also took other evidence into account . On DATE the Commission drew up , under section CARDINAL ) of LAW , a report on the question whether the request for the first applicant ’s dismissal had been justified . It submitted the report to the plenary of the ORG for consideration .

On DATE the plenary of the ORG , the composition of which included GPE , dismissed the first applicant for professional misconduct .

The first applicant challenged that decision at second instance , namely before an Appeal Panel formed within ORG ( “ the Appeal Panel ” ) . Such panels were set up on an ad hoc basis in each separate case . As specified under section DATE CARDINAL Act , they were composed of CARDINAL judges , of whom CARDINAL were to be ORG judges , CARDINAL ORG judges and CARDINAL judges of the court of the applicant . On DATE ORG dismissed the first applicant ’s appeal and upheld the ORG ’s decision .

On DATE GPE , a member of the ORG , applied to the ORG for professional misconduct proceedings to be instituted in respect of the second applicant . It had been alleged that , as an on - duty investigating judge , the second applicant had not been diligent in the investigation of an incident that had occurred in the LOC detention centre . Under section CARDINAL of the Rules ( see paragraph CARDINAL below ) , the request was submitted to the second applicant for comments . He responded in writing .

On an unspecified date , the ORG set up , under LAW of LAW , a CARDINAL - member Commission in the second applicant ’s case . On DATE the Commission submitted a report to the ORG in which it sought that it initiate professional misconduct proceedings against the second applicant .

With CARDINAL separate decisions delivered on DATE , the plenary of the ORG , including GPE , initiated professional misconduct proceedings in respect of the second applicant and ordered his temporary suspension . The decisions were not amenable to appeal .

On DATE the Commission held a hearing at which GPE and the second applicant presented their arguments and concluding remarks ( завршни зборови ) . Evidence against the second

On DATE the plenary of the ORG , the composition of which included GPE , dismissed the second applicant for professional misconduct . The second applicant appealed against his dismissal to ORG that had been formed in his case within ORG , arguing , inter alia , that he had not been given the opportunity to comment on the evidence against him when the request for his dismissal had been served on him . He also asked ORG to inform him of the date of its session . At a hearing held in private on CARDINAL DATE , ORG dismissed the second applicant ’s appeal .

On DATE the second applicant challenged his dismissal before ORG by means of an administrative - dispute action ( тужба за управен спор ) . He complained , inter alia , about the alleged refusal of his request for exclusion of Judges PERSON and PERSON who had been parties to the decision of ORG in his case . He had requested their withdrawal because Judge PERSON had applied at the relevant time to the ORG for the post of president of a first - instance court , and Judge PERSON allegedly had a close relationship with the public prosecutor involved in the case in respect of which he had been dismissed . On DATE ORG rejected the second applicant ’s action as inadmissible . That decision was upheld by ORG .

The second applicant produced copies of articles published in local newspapers on DATE and CARDINAL DATE reporting on his case . The article published on DATE cited the then President of the ORG as saying that the ORG was still dealing with the case and that no report had yet been submitted to the ORG for consideration . On CARDINAL DATE the newspaper announced that the second applicant had been removed from office .


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

The first applicant , PERSON GPE ( ORG Netherlands , “ OvRAN ” ) is an association under GPE law based in ORG . Mr PERSON was born in DATE and lives in GPE ; Mr PERSON was born in DATE and lives in GPE ; Mr PERSON was born in DATE and lives in GPE ; and Mr PERSON was born in DATE and lives in GPE . All CARDINAL individual applicants are GPE nationals and all state their occupation as “ ORG ” . The applicants are represented by ORG , a lawyer practising in GPE .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Preliminary objection dismissed (Article 34 - Victim);Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

András Sajó;Ann Power-Forde;Dean Spielmann;Dmitry Dedov;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Mark Villiger;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

In DATE she had recourse to assisted reproduction techniques , undergoing in vitro fertilisation ( “ ORG ” ) treatment with her partner at FAC at ORG ( “ the centre ” ) in GPE . The CARDINAL embryos obtained from the ORG treatment were placed in cryopreservation .

Before the embryos could be implanted the applicant ’s partner died , on DATE , in a bomb attack in GPE ( Irak ) while he was reporting on the war .

After deciding not to have the embryos implanted , the applicant sought to donate them to scientific research and thus contribute to promoting advances in treatment for diseases that are difficult to cure .

According to the information provided at the hearing before FAC , the applicant made a number of unsuccessful verbal requests for release of the embryos at the centre where they were being stored .

In a letter of DATE the applicant asked the director of the centre to release the CARDINAL cryopreserved embryos so that they could be used for stem - cell research . The director refused to comply with her request on the grounds that this type of research was banned and punishable as a criminal offence in GPE under LAW no . CARDINAL of DATE ( “ Law no . CARDINAL ” ) .

The embryos in question are currently stored in the cryogenic storage bank at the centre where the ORG treatment was carried out .


GAVRILOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

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

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

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

The applicant is the owner and manager of a local radio station in GPE . DATE he was also President of ORG . In that capacity , he reported to the relevant ORG authorities some irregularities in the operation of company NORP , a cable TV broadcasting company owned by Mr PERSON According to the applicant , on account of that criticism , PERSON had threatened on several occasions to kill him . As established in the criminal proceedings described below , in a reported incident of CARDINAL DATE Mr PERSON issued verbal threats against the applicant . Other alleged incidents , the latest dated DATE , were not reported to the police .

On DATE the public prosecutor indicted Mr PERSON , Mr PERSON and Mr PERSON for the attempted murder of the applicant . The charges concerned an incident occurring on DATE in which PERSON , a member of the special military forces known as the Wolves , and PERSON , had allegedly assaulted the applicant with the intention of killing him . Both accused had allegedly worn black masks and used metal clubs to beat the applicant . The applicant sustained head and body injuries . CARDINAL of his fingers were broken . In the assault , PERSON allegedly fired a shot , which did not hit the applicant . As stated in the indictment , PERSON , who had threatened on DATE to kill the applicant , had incited PERSON and PERSON to carry out the attempted killing .

The proceedings were conducted before ORG ( “ the trial court ” ) . At the trial , the court heard oral evidence from the accused and several witnesses and confronted the applicant with PERSON PERSON It also admitted a considerable volume of documentary evidence , including several expert reports ; lists of temporarily seized objects ; detailed lists of calls on mobile phones confiscated from the accused ; reports on identity parades set up during the trial ; excerpts from several DATE newspapers , and other items of evidence . On DATE the trial court delivered a judgment acquitting the accused . The applicant was instructed to pursue possible compensation claims against the accused by means of a separate civil action for damages . In the judgment , the trial court examined the available evidence . It did not give weight to an expert report according to which strands of textile found on CARDINAL of the metal clubs used in the attack matched fibres from jeans like those confiscated from Mr PERSON It further disregarded an expert report which stated that a residue of saliva on a cigarette butt found at the scene of the incident immediately after the assault was consistent with blood group A , which was PERSON blood group . It did so because a DNA analysis of the saliva had excluded the possibility that the cigarette butt belonged to PERSON Because of some irregularities in the identity parade held by the police , the court also disregarded the fact that the applicant and CARDINAL witnesses had identified PERSON PERSON as one of the assailants . Lastly , it had not been confirmed that PERSON PERSON had threatened the applicant . The confrontation between the CARDINAL men had not supported the applicant ’s allegations in that respect . According to the receipt slip , this judgment was served on the applicant on DATE .

On DATE ORG dismissed an appeal by the public prosecutor and upheld the trial court ’s judgment . It found that the lower court had established the facts correctly and had provided sufficient reasons for its judgment . Further to the assessment of the evidence carried out by the trial court , ORG examined evidence regarding the bullet found at the scene after the incident . Forensic ballistics tests confirmed that its calibre corresponded to ammunition used by an NORP - produced gun of a type that had been reported stolen from a military unit in GPE in which Mr PERSON had served at CARDINAL time . That finding , coupled with the fact that the gun from which the bullet had been fired had not been found , had been insufficient , in the court ’s opinion , to attribute any guilt to Mr ORG concluded that the lower court had given a clear and lawful judgment . The Government provided a copy of a receipt slip according to which the applicant was served with this judgment on DATE . In the comments submitted in reply to the ORG ’s observations , the applicant did not contest the date of service of this judgment .

On DATE the public prosecutor challenged the lower courts’ judgments by lodging , of his own motion , a request for the protection of legality ( барање за заштита на законитоста ) with ORG .

On DATE ORG granted the request and stated that the lower courts had violated section QUANTITY ) , paragraph CARDINAL , and ( CARDINAL ) read in conjunction with section CARDINAL of LAW of DATE ( “ the CARDINAL LAW ) ( see paragraphs CARDINAL below ) in favour of the accused . Referring to section CARDINAL(CARDINAL ) of LAW , it stated that its judgment would not affect the final judgment . ORG found that , on the basis of the evidence in the case file , the reasons given in the trial court ’s judgment had been unclear and contrary to the evidence adduced . The lower court had erred on the facts and had assessed the available evidence incorrectly , in particular evidence provided by the applicant and other witnesses who had identified the accused as the perpetrators of the crime . It stated that the trial court had established the facts solely on the basis of the evidence in favour of the defence . Evidence against the accused had been disregarded , with reasoning which lacked any substantiation . ORG further criticised the way in which the trial court had assessed the expert evidence . It also observed that ORG had upheld the trial court ’s judgment despite being vested with jurisdiction to ascertain of its own motion whether there had been any procedural flaws . The applicant was served with this judgment on DATE .

On DATE the applicant lodged a constitutional appeal with ORG seeking protection of his right to freedom of expression , which had allegedly been violated owing to the failure of the ORG to identify and punish those responsible for the incident . Since ORG judgment had no bearing on the final judgment acquitting the accused , he alleged that he had also been denied the opportunity to claim compensation from the accused . The applicant reiterated that the incident of DATE had been connected to his criticism of company NORP and had been intended to silence him .

On DATE ORG rejected ( отфрла ) the applicant ’s appeal . It found that the criminal courts had been required to establish whether any liability could be attributed to the accused . They had neither adduced any evidence nor established the facts in respect of whether the assault had been intended to restrict the applicant ’s freedom of expression . The intention to commit the crime was of importance for identifying the perpetrators and determining the penalty . Furthermore , the protected interest damaged by the alleged crime was the right to life and not freedom of expression . The assault in question had happened at a time and place that could not be directly linked to the applicant ’s freedom of expression . ORG accordingly found that the judgments of the first and second - instance courts had not been of any relevance to the applicant ’s freedom of expression . It further stated that ORG had no jurisdiction , in view of the proscription of reformatio in pejus set forth in DATE ) of LAW , to remit the case for re - examination or decide it on the merits . The ORG could not therefore be held responsible for failing to punish the perpetrators . Lastly , it had been open to the applicant to claim monetary compensation in civil proceedings as he had been instructed to do by the criminal courts .

NORP Under LAW , the courts were responsible for establishing the relevant facts correctly and completely and assessing with equal diligence the evidence against and in favour of the accused .

LAW ) , paragraph CARDINAL , and ( CARDINAL ) of the DATE Act provided that there was a substantial procedural flaw if a judgment contained no reasoning or the reasoning was incomprehensible or inconsistent , or if the court did not apply a statutory provision or applied it incorrectly .

Sections CARDINAL and CARDINAL provided that the public prosecutor could lodge a request for the protection of legality ( барање за заштита на законитоста ) against final court judgments . ORG determined such requests .

NORP Under section CARDINAL(CARDINAL ) and ( CARDINAL ) , ORG was limited to examining the violations alleged in the request for the protection of legality . If such a request was lodged in favour of the convicted person , ORG could not amend the lower courts’ judgments to his or her detriment regarding the legal classification of the crime and the penalty imposed .

NORP Under section CARDINAL(CARDINAL ) , if ORG granted the request for the protection of legality it could issue the following judgments : it could overturn the final judgment ; it could annul the first and second - instance courts’ judgments or only the second - instance court ’s judgment and remit the case for re - examination ; or it could merely acknowledge the violation . Under sub - section CARDINAL of that provision , if a request was lodged to the detriment of the accused and the court found the request well - founded , it would acknowledge that there had been a violation of the law . The judgment of ORG would not affect the final judgment .

In DATE the word “ accused ” in DATE ) of LAW was replaced with the words “ convicted person ” ( Official Gazette no . CARDINAL ) .

The DATE LAW , which came into operation on DATE , contains the same provision as section CARDINAL(CARDINAL ) of LAW , as amended in DATE ( section CARDINAL ) ) .

The Government submitted copies of several judgments ( Кзз.бр.CARDINAL/CARDINAL ; Кзз.бр.CARDINAL/CARDINAL ; PERSON ; GPE CARDINAL/CARDINAL and PERSON ) in which ORG had granted requests for the protection of legality lodged by the public prosecutor and found that the law had been violated by the lower courts’ judgments in which the accused had been acquitted . In all these judgments ORG , relying on DATE ) of LAW , had held that its findings would not affect the final judgments of the lower courts . In these cases , the first - instance courts’ judgments were given DATE and DATE .