Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The first and second applicants were born in DATE and DATE respectively . The third and fourth applicants were born in DATE . They all live in LOC .

The first and second applicants are husband and wife . They were unable to have a child of their own because the second applicant is infertile .

After a number of unsuccessful attempts to conceive a child using in vitro fertilisation ( ORG ) with their own gametes , the first and second applicants decided to undergo ORG using the gametes of the first applicant and an egg from a donor with a view to implanting the fertilised embryos in the uterus of another woman . Accordingly , they went to GPE , where the process is legal , and entered into a gestational surrogacy agreement .

The applicants specified that , in accordance with NORP law , the “ surrogate mother ” was not remunerated but merely received expenses . They added that she and her husband were both high earners and therefore had a much higher income than the applicants and that it had been an act of solidarity on her part .

On DATE the surrogate mother was found to be carrying twins and , in a judgment of DATE , ORG , to which the first and second applicants and the surrogate mother and her husband had applied , ruled that the first applicant would be the “ genetic father ” and the second applicant the “ legal mother ” of any child to whom the surrogate mother gave birth within DATE . The judgment specified the particulars that were to be entered in the birth certificate and stated that the first and second applicants should be recorded as the father and mother .

DATE the third and fourth applicants DATE were born on DATE and their birth certificates were drawn up in accordance with the terms stated above .

NORP In DATE the first applicant went to the NORP consulate in GPE to have the particulars of the birth certificates entered in the NORP register of births , marriages and deaths and the children ’s names entered on his passport so that he could return to GPE with them .

The applicants stated that many NORP couples in their situation had previously succeeded in carrying out that procedure . The consulate rejected the first applicant ’s request , however , on the grounds that he could not establish that the second applicant had given birth and , suspecting a surrogacy arrangement , sent the file to the GPE public prosecutor ’s office .

As ORG had issued GPE passports for the twins on which the first and second applicants were named as their parents , the CARDINAL applicants were able to return to GPE in DATE .

NORP In DATE a preliminary investigation was carried out at the request of the public prosecutor ’s office .

In DATE an investigation was commenced against a person or persons unknown for acting as intermediary in a surrogacy arrangement and in respect of the first and second applicants for false representation infringing the civil status of children .

On DATE , in accordance with the submissions of the NORP public prosecutor , the investigating judge gave a ruling of no case to answer on the ground that the acts had been committed on GPE territory , where they were not classified as an offence , and therefore did not constitute a punishable offence in GPE .

In the meantime , on DATE , on the instructions of the public prosecutor ’s office , the particulars of the birth certificates of the third and fourth applicants had been recorded in the central register of births , marriages and deaths in GPE by the NORP consulate in GPE .

However , on CARDINAL DATE the NORP public prosecutor instituted proceedings against the first and second applicants in the NORP tribunal de grande instance to have the entries annulled and the judgment recorded in the margin of the entries thus invalidated . He observed that an agreement whereby a woman undertook to conceive and bear a child and relinquish it at birth was null and void in accordance with the public - policy principle that the human body and civil status are inalienable . He concluded that , as the judgment of ORG was contrary to the NORP concept of international public policy and of NORP public policy , it could not be executed in GPE and that the validity of civil - status certificates drawn up on the basis of that judgment could not be recognised in GPE .

By a judgment of DATE , the NORP tribunal de grande instance declared the action inadmissible . It found that “ the entries had been recorded on the sole initiative of the public prosecutor with the purpose , since avowed , of bringing proceedings to have the entries annulled ” . It concluded from this that “ an action by the public prosecutor on grounds of public policy which he himself ha[d ] infringed could not be deemed admissible where the provisions of LAW on which he [ relied ] allowed him to verify the validity of the certificates in any respect and to reject any request for registration that would render them binding in GPE ” .

NORP The public prosecutor ’s office appealed to ORG , which upheld the lower court ’s judgment on DATE . ORG also considered the public prosecutor ’s action for annulment of the entries in the GPE central register of births , marriages and deaths inadmissible as a matter of international public policy . It substituted its own grounds for that decision , however , finding that the contents of the entries were accurate as regards the judgment of ORG and that the public prosecutor ’s office was not disputing the fact that the judgment was binding on GPE or that , under LAW , the certificates drawn up in GPE in accordance with the usual procedures in that ORG should be deemed valid .

On DATE ORG ( ORG ) quashed that judgment on the ground that the public prosecutor ’s office had an interest in bringing proceedings for annulment of the entries since , as established by ORG , the birth certificates in question could only have been drawn up following a surrogacy arrangement . It remitted the case to ORG with a differently constituted bench .

By a judgment of DATE , ORG overturned the judgment remitted to it , annulled the entries pertaining to the birth certificates and ordered its judgment to be recorded in the margin of the invalidated birth certificates .

Regarding the admissibility of the action brought by the public prosecutor ’s office , the court found that it could not be seriously alleged that the prosecution authorities had contravened public policy or disrupted peaceful family relations by requesting that the contents of an entry that they themselves had ordered be annulled , since the purpose was to frustrate the effects of a foreign civil status which they considered contrary to NORP public policy or to guard against an application to have the entries recorded .

ORG ruled on the merits as follows :

“ ... The birth certificates were drawn up on the basis of ORG judgment of DATE which declared [ the first applicant ] the genetic father and [ the second applicant ] the legal mother of any child to which [ the surrogate mother ] gave birth between CARDINAL DATE and DATE . The civil - status documents are therefore indissociable from the decision underlying them and the effectiveness of that decision remains conditional on its international lawfulness .

ORG , on national territory , of a decision delivered by a court of a ORG that is not bound to GPE by any convention is subject to CARDINAL conditions : the indirect jurisdiction of the foreign court based on the connection between the court and the case ; compliance of the merits and procedure with international public policy ; and absence of circumvention of the law .

It has been established in the present case that following a surrogacy agreement [ the surrogate mother ] gave birth to twins who were conceived from the gametes of [ the first applicant ] and of a third party and were relinquished to [ the first and second applicants ] .

Under LAW , whose provisions deriving from Law no . MONEY of DATE , and not amended by PERSON no . CARDINAL of DATE , are a matter of public policy by virtue of LAW of the same Code , any agreement concerning reproductive or gestational surrogacy is null and void . Accordingly , the judgment of ORG , which indirectly validated a surrogacy agreement , contravenes the NORP concept of international public policy . Consequently , without having to ascertain whether the law has been circumvented , the entries in the NORP central register of births , marriages and deaths of the particulars of the GPE birth certificates naming [ the second applicant ] as the mother of the children must be annulled and the present judgment recorded in the margin of the invalidated birth certificates .

[ The applicants ] can not seriously claim that they have not had a fair hearing ; nor do they have justifiable grounds for arguing that this measure contravenes provisions laid down in international conventions and domestic law . The concepts to which they refer , in particular the child ’s best interests , can not allow them – despite the practical difficulties engendered by the situation DATE to validate ex post facto a process whose illegality , established first in the case - law and subsequently by the NORP legislature , is currently enshrined in positive law . Furthermore , non - registration does not have the effect of depriving the QUANTITY children of their GPE civil status or calling into question their legal parent - child relationship with [ the first and second applicants ] recognised under NORP law ... ”

The applicants appealed on points of law , submitting that the children ’s best interests – within the meaning of LAW of LAW on the Rights of the Child – had been disregarded and complaining of a breach of their right to a stable legal parent - child relationship and , further , of a violation of LAW taken alone and in conjunction with LAW . They submitted , further , that the decision of a foreign court recognising the legal parent - child relationship between a child and a couple who had lawfully contracted an agreement with a surrogate mother was not contrary to international public policy , which should not be confused with domestic public policy .

At a hearing on DATE the advocate - general recommended quashing the judgment . He expressed the view that a right lawfully acquired abroad or a foreign decision lawfully delivered by a foreign court could not be prevented from taking legal effect in GPE on grounds of international public policy where this would infringe a principle , a freedom or a right guaranteed by an international convention ratified by GPE .

He noted in particular that in PERSON and PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) the ORG had taken account , in its examination of the case under LAW , of an “ effective family life ” and “ de facto family ties ” between a single mother and the child she had adopted in GPE , without attaching any importance to the fact that the former had gone abroad in search of a legal system which would allow her to obtain what the law of her country of origin refused her . In the advocate - general ’s opinion , if the same rationale were applied in the present case , even where domestic law had been circumvented , a legal relationship lawfully created abroad could not be prevented from producing the relevant legal effects where it concerned an effective family set - up and allowed it to function and evolve in normal conditions from the standpoint of LAW . He also observed that the third and fourth applicants had been living in GPE for DATE and “ [ were being ] brought up there by genetic and intended parents in a de facto family unit in which [ they were receiving ] affection , care , education , and the material welfare necessary to their development ” and that this effective and affective family unit DATE fully lawful in the eyes of the law of the country in which it had originated – [ was ] “ legally clandestine ” , “ the children having no civil status recognised in GPE and no parent - child relationship regarded as valid under NORP law ” . As to whether that state of affairs infringed their “ right to a normal family life ” , the advocate - general replied as follows :

“ ... At this stage CARDINAL answers are possible : either – somewhat theoretically and largely paradoxically – the refusal to register the birth particulars is inconsequential and does not substantially affect the family ’s DATE life , which means that registration is a mere formality and it is therefore difficult to see any major obstacle in the circumstances to recording the details of certificates with such minimal legal effect that it is inconceivable that they are capable in themselves of shaking the foundations of our fundamental principles and seriously contravening public policy ( since they do not intrinsically contain any mention of the nature of the birth ) .

Alternatively , the refusal to register the birth details permanently and substantially disrupts the family ’s life , which is legally split into CARDINAL in GPE – the NORP couple on one side and the foreign children on the other – and the question then arises whether our international public policy – even based upon proximity – can frustrate the right to family life within the meaning of Article CARDINAL [ of the Convention ] or whether , on the contrary , public policy of that kind , whose effects have to be analysed in practical terms as do those of the foreign rights or decisions that it seeks to exclude , should not be overridden by the obligation to comply with a provision of the ORG .

If the second alternative is retained on the grounds that international conventions must take precedence over public policy based on a standard provided for in a legislative provision , this will not necessarily result in the automatic collapse of the barriers erected by the domestic public - policy provision in such circumstances . As long as ORG has not given a clear ruling on the question of the lawfulness of surrogacy and allows the GPE to legislate as they deem fit in this area , it can be considered contrary to public policy to validate , on grounds of respect for family life , situations created illegally within the countries which prohibit them .

However , where it is merely a question of giving effect on the national territory to situations lawfully established abroad – be this at the cost of deliberately disregarding the strictures of a mandatory law – there is nothing to preclude international public policy – even based upon proximity – from being overridden in order to allow families to lead a life in conformity with the legal conditions in which they were created and the de facto conditions in which they now live . Furthermore , the best interests of the child , envisaged not only under LAW but also under the case - law of ORG which has established this criterion as a component of respect for family life , also militate in favour of this interpretation . At least this is the lesson that I think we can draw from the judgment in PERSON [ and PERSON ] ... ”

NORP However , on DATE ORG ( ORG ) gave judgment dismissing the appeal on the following grounds :

“ ... the refusal to register the particulars of a birth certificate drawn up in execution of a foreign court decision , based on the incompatibility of that decision with NORP international public policy , is justified where that decision contains provisions which conflict with essential principles of LANGUAGE law . According to the current position under domestic law , it is contrary to the principle of inalienability of civil status – a fundamental principle of LANGUAGE law – to give effect , in terms of the legal parent - child relationship , to a surrogacy agreement , which , while it may be lawful in another country , is null and void on public - policy grounds under LAW and CARDINAL of LAW .

Accordingly , ORG correctly held that , in giving effect to an agreement of this nature , the “ NORP ” judgment of DATE conflicted with the NORP concept of international public policy , with the result that registration of the details of the birth certificates in question , which had been drawn up in application of that judgment , should be annulled . This does not deprive the children of the legal parent - child relationship recognised under NORP law and does not prevent them from living with PERSON and PERSON in GPE ; nor does it infringe the children ’s right to respect for their private and family life within the meaning of LAW ... , or the principle that their best interests are paramount as laid down in LAW of LAW on the Rights of the Child ... ”

On DATE the first applicant lodged an application with the GPE - le - ORG for a certificate of NORP nationality for the third and fourth applicants . The senior registrar sent him acknowledgement - of - receipt forms dated DATE and DATE , indicating that the request “ was still being processed in [ his ] department pending a reply to the request for authentication sent to the consulate of GPE , GPE ” .


Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

André Potocki;Ganna Yudkivska;Vincent A. De Gaetano

The applicant was born in DATE .

On DATE a police investigator initiated criminal proceedings against the applicant and charged him with fraudulent appropriation of property . On DATE the applicant was placed on the list of wanted persons .

On DATE the applicant was arrested and informed of the charges .

On DATE the applicant ’s pre - trial detention was ordered by a court .

On DATE the applicant was released under a written undertaking not to abscond .

NORP In DATE the case was referred to ORG ( “ the ORG ” ) for trial .

On DATE ORG held a preliminary hearing in the case . Following the request of the prosecutor , it ordered that the preventive measure in respect of the applicant should be changed and that the applicant should be placed in pre - trial detention . The court , paying regard to the fact that the applicant denied his guilt , considered that the applicant could influence witnesses , conceal or remove traces and evidence of the crime . It stated that the applicant was charged with a serious crime and his actual place of residence did not coincide with his registered address . It therefore concluded that the applicant could behave negatively and his isolation was necessary . The court noted that the applicant was of middle age , he was not a disabled person , he did not suffer from chronic illnesses , he had a family and a minor son , and that he worked as director of a company .

On a number of occasions during the trial the applicant requested ORG to change the preventive measure in his respect and release him .

On DATE , DATE , DATE and CARDINAL DATE ORG dismissed the applicant ’s requests maintaining the impugned preventive measure . The court referred to its decision of DATE and repeated that the applicant ’s actual and registered addresses did not coincide , he was charged with a serious crime , and that there were grounds to believe that the applicant could behave negatively , if released . The court also repeated that the applicant was of middle age , he was not a disabled person , he did not suffer from chronic illnesses , he had a family and a minor son , and that he worked as director of a company . The court then found that there had been no grounds to change the preventive measure for health reasons or to apply bail ; furthermore , the applicant showed no remorse and had refused to admit his guilt .

On DATE ORG found the applicant guilty of fraudulent appropriation of property and sentenced him to CARDINAL years’ imprisonment and ordered confiscation of his property .

ORG and ORG of GPE upheld the judgment of DATE on DATE and DATE respectively .


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

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

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

In DATE the applicant was practising law . In DATE he sent a letter to ORG ( ORG – the “ ORG ” ) in which he complained about the conduct of a judge , X , at ORG . He subsequently transmitted the content of that letter by means of a “ circular letter ” to a number of judges of the same court , but without expressly referring to X by name .

The relevant parts of that circular letter read as follows :

“ Before you receive any incorrect or untrue information , before the corporatist spirit prevails over a correct interpretation of the reasons that drove me to write to the ORG , to ORG , to ORG and to ORG , about the conduct of CARDINAL judges of ORG in the context of a judicial partition procedure to which my clients were parties , and before any of my colleagues come to apologise , on my behalf , for my initiative , perhaps making out that I am insane or irresponsible , my intention is to clarify and tell you the reasons which led me to do so .

An appeal on points of law is pending against a judgment of ORG in which that court , ruling against the claims by a female partner and deciding on the related issue of the partition of an inheritance , asked the investigating judge to proceed with the sale of a flat , which was the sole item of property to be divided between the heirs , and which was occupied by the partner and her daughter , an heir , born to the cohabiting couple . Since the judgment of ORG was not final , it was not possible to proceed with the sale or to initiate the procedure relating thereto , since this was prohibited expressly by LAW .

The other heir , however , applied for ... the sale , and the investigating judge , in spite of our repeated requests for suspension of the sale , which were all rejected , brought about , after CARDINAL auctions without a buyer , the conveyance of the property to a third party at the third auction .

Here are the specific reasons for which all our requests were rejected :

In spite of this , I would like to point out at the outset that I do not feel any animosity towards the judiciary and judges in general , and that I consider , by contrast , that the role played by judges is crucial and irreplaceable for civil society .

There are and have been judges who carry out and have carried out their duties with great dignity and decorum [ decoro ] , and who deserve my admiration and the admiration of all those who have worked in the field of justice . None of us can forget Y , who died , one can say , on the ‘ battlefield’ . I still remember that , in the courtroom , he was the one , out of all his colleagues , who , even in his state of extreme and obvious suffering , took the greatest number cases for adjudication , and he carried on doing this until the bitter end . I confess that if I had been able to spare him the effort , in view of his condition , I would willingly have taken over his workload . But there are other equally deserving judges who work , even during DATE , going to the office , talking to lawyers , and with whom we can have a form of collaboration and dialogue DATE and to them I also express my esteem and admiration .

I am well aware that justice is done by men and precisely for that reason decisions may be erroneous and incomplete . I still prefer , however , a human justice to one that is automated .

But what I refuse to accept is the idea that , when the rights of the individual and the dignity of those whose task it is to defend him or her are at stake , those rights could be decided upon in a partial manner , perhaps with a display of arrogance , or that a ruling could be given with total indifference and lack of commitment . I personally believe strongly in the autonomy of the judiciary and I feel that without respect for the autonomy of the person whose task it is to decide , it would be impossible to have dispassionate and fair judgments . Autonomy , however , can not be turned into an absolute discretionary power because that would be bordering on or tantamount to arbitrariness . I have pointed out how I see the meaning of justice and reiterate that I think very highly of the duties exercised by judges , and that my full admiration goes to those who act with dedication , commitment and decorum [ decoro ] .

I am even envious of judges , because they probably have more time to study and to dwell on issues , and also to attend to other cultural and social interests , than lawyers who , by the nature and specificity of their work , do not always manage to do things or to do things well . I often take home things to read and to study and I end up , TIME , nodding off over a book after DATE , running from CARDINAL office to another in the morning , and answering the phone or receiving clients in the afternoon . I also understand that the judiciary is burdened with work and with problems , that the staffing is insufficient and the workload huge DATE and for that reason it is true that protests [ esposti ] do not help to get the work done more easily , and that more collaboration and dialogue would be better than protests . There are limits , however , that in my view should not be passed and , after thinking about this for quite some time , I decided to submit this particular protest [ the letter to the ORG ] . I will now quote the last part of my protest in which I dwell on the meaning of the lawyer ’s profession and ask whether it is legitimate that any decision or conduct should always be accepted :

‘ This lawyer would point out as follows :

It is regrettable to direct this letter against individuals who , even [ if they have ] different duties , are considered by this lawyer to be “ colleagues ” , as practitioners in law usually call each other . He considers , however , that he is obliged to do so in response to a lack of commitment and total indifference towards the legitimate demands of the citizen in whose name justice is done , with a belief in impunity , as the position is one of “ power ” , even though it should be seen as the discharge of a “ duty ” , and “ last but not least ” , a lack of respect for the dignity and responsibility of this lawyer ’s profession .

This lawyer has practised law in courts at CARDINAL levels of jurisdiction , has borne very high costs on behalf of his clients – to the point where , if one were to apply the professional rate , one would exceed the amount of the claim – has sought , in CARDINAL statements of claim filed in ORG , a stay of execution under LAW , but his requests were all rejected by reasoning that leaves much to be desired – but that is not the subject of this protest –has accumulated a formidable pile of documents of all descriptions , and has seen the attachment of funds in respect of his own claim go up in smoke .

In the time it has taken to work on these cases , he could probably have dealt with CARDINAL ordinary cases of average complexity .

If work – any type of work , provided it is lawful DATE has its own protection and its own dignity , then the judge too ( more than any person , as a result of his function and role ) can not but allow himself not to respect for the work of others , including that of the lawyer .

As a legal practitioner , this lawyer has a duty to provide some certainty to his client , who is the citizen in whose name justice is done ( judgments are headed “ In the name of the NORP People ” ) .

What certainty can the lawyer provide if each judge , instead of applying the law , gives his preferred interpretation and does not even explain his interpretation of the laws in question ? It should be noted that the system of appeals and claims is no guarantee for the citizen . Judges are only human and can make mistakes ( errare humanum est ) , but they can not and must not wilfully make mistakes , by malicious intent , serious misconduct or negligence , and the citizen must have his or her claims upheld , provided they are well founded , from the earliest stage . There are a large number of cases ; this can be explained by the fact that if many decisions had been taken correctly from the outset , one could have avoided the proliferation of cases , procedures and claims , as can be seen here ; and not forgetting the many cases where the citizen , disappointed and bemused to receive abnormal decisions , having lost all confidence in the justice system , decides not to appeal . This entails a justified loss of confidence in the courts and an increase in workload and expense for the ORG , because of the extra work for other judges , registries and bailiffs .

And what justification and explanation could be given by the lawyer to this client , to whom he had predicted a certain result , with all due caution , only to present a decision by the judge that is diametrically opposed to that which he predicted ? ? If that is the result of an error , or a lack of knowledge or commitment or analysis on the part of the lawyer , he should take responsibility for it ; but when this depends on the judge , it is damaging to the lawyer because the client will necessarily have a negative opinion of the lawyer ’s work . Are clients and citizens capable of understanding whether it is the lawyer or the judge who has made a mistake and to what extent ? ? If the lawyer does not obtain appropriate results with legal argument , what other means are available ? ? What must the lawyer do to obtain something to which he is professionally entitled ? ? ... Or should the lawyer not make life difficult for himself and carry on regardless , tending to his garden [ il suo orticello ] , while protecting his head from any tiles that might fall off the roof – because on the one hand he is not protected and on the other he is at the mercy of another person ’s discretionary power ? ? ... Without any regard for his own professional dignity ? ? ...

When this letter reaches you I will be undergoing a medical operation . I am sorry that , for the time being , I can not provide any further clarification or explanations to those who may wish them . I am however ready , if necessary , to answer for my conduct and to provide any clarification that may be requested of me after my operation , when I am in a better state of health again.’ ”

Finding that certain expressions used in the circular letter had impugned his reputation , ORG filed a criminal complaint for defamation against the applicant .

As X was a judge in GPE , the file was transferred , under LAW , to the judicial authorities of Genoa .

On DATE the Genoa public prosecutor requested that the applicant be committed to stand trial before the court of that city .

X joined the criminal proceedings against the applicant as a civil party .

According to the charge , in the circular letter the applicant had expressed admissible ( lecite ) criticism in so far as he spoke about interpreting and performing the work of a judge , but had then overstepped the limits to his freedom of expression by writing the following sentences in particular :

( a ) “ Autonomy ... can not be turned into an absolute discretionary power because that would be bordering on or tantamount to arbitrariness ” .

( b ) “ ... in a partial manner , perhaps with a display of arrogance , or ... a ruling ... given with total indifference and lack of commitment ” .

( c ) “ ... the judge ... can not allow himself not to respect the work of others , including that of the lawyer ” .

( d ) “ Judges are only human and can make mistakes ... but they can not and must not wilfully make mistakes , by malicious intent , serious misconduct or negligence ” .

At the hearing of CARDINAL DATE the representative of the public prosecutor ’s office stated that the applicant also had to be charged with proffering insults , given that it transpired from ORG statement that he had been one of the recipients of the circular letter .

In a judgment of DATE , deposited in the court ’s registry on DATE , ORG convicted the applicant of defamation and proffering insults and sentenced him to CARDINAL months’ imprisonment and to the reimbursement of ORG court costs ( amounting to MONEY ( ORG ) ) with reparation for the damage sustained by X. The amount of that damage was to be fixed in separate civil proceedings ; the court nevertheless awarded X an advance payment ( provisionale ) of LAW .

ORG observed that it was not in dispute that the applicant had written the circular letter and had asked his secretary to send copies to the judges in the civil divisions of ORG . During the proceedings , the applicant had filed pleadings and had made spontaneous statements . His arguments in defence had not , however , made it possible to disregard the offensive nature of the expressions used in the circular letter , exacerbated by the fact that he was a lawyer . In his letter , the applicant had stated that he had the greatest respect for the judiciary and for judges who carried out their duties with “ dedication , commitment and decorum ” . But he was clearly not talking here CARDINAL , who had been accused by the applicant of being arrogant and indifferent , of believing that he was immune because he held a position of power , and of having committed wilful mistakes , by malicious intent , serious misconduct or negligence . Those accusations could be explained not by PERSON ’s inaction in the handling of a case , but by the decisions taken by X in a case where the applicant ’s requests had been rejected . Instead of reiterating his legal arguments , the applicant had overstepped the limits of his right to criticism , alleging that X had erred “ wilfully ” , thus seriously impugning the honour of the judge in question .

According to ORG , the subject of the accusations contained in the circular letter could only have been X , as shown by similar letters , which expressly referred to that judge , addressed by the applicant and his clients to the ORG , ORG , ORG and ORG .

The applicant ’s defence ( esimente ) of provocation ( LAW ) was not accepted . Even supposing that the decisions of X could be regarded as “ unfair acts ” , the circular letter , sent DATE after those decisions , did not constitute an immediate reaction to them .

The applicant lodged an appeal .

He alleged , among other things , that the offences he was said to have committed were punishable merely by a fine , that the sentence imposed on him had been disproportionate and that the advance he had to pay was excessive . Moreover , in his complaint X had not mentioned that he himself had been a recipient of the circular letter , thus ruling out the charge of proffering insults . The applicant also argued that it could not be seen from the text of the letter that the criticism was directed at X and that this document , when assessed as a whole , was merely a manifestation of his frustrations about the shortcomings of the justice system in general .

Lastly , in the alternative , he took the view that his defence of provocation was valid . He argued that , in the proceedings for the partition of an inheritance , X had on a number of occasions rejected his requests for the suspension of a sale by auction of the flat in question , and that X ’s decisions had subsequently been overturned by another judge .

At the hearing of CARDINAL DATE , the applicant stated that it had not been his intention to offend PERSON personally and he produced documents as evidence of his ill - health .

In a judgment of DATE , deposited in the court ’s registry on DATE , ORG ruled that no prosecution could be brought on a charge of proffering insults , as there had been no criminal complaint on that ground , and reduced the sentence for the offence of defamation to a fine of ORG CARDINAL . It stated that this sentence was fully remitted ( condonata ) , and ordered the applicant to make reparation for the damage sustained by X , which it assessed at ORG CARDINAL,CARDINAL , and to reimburse X ’s court costs in the appeal proceedings ( LAW ) .

The Court of Appeal observed that , in the first part of his circular letter , the applicant had recounted the tribulations of the partition proceedings in which X had taken the impugned decisions . He had added that he regretted having to make complaints about certain individuals ( X and another judge ) whom , even though they had different duties from his own , he regarded as “ colleagues ” . In addition , the judges of ORG , giving testimony in the first - instance proceedings , had had no difficulty in identifying X as the addressee of the criticisms in the circular letter . In those circumstances , the applicant ’s argument that the letter was merely a manifestation of his discontent about the justice system in general could not be accepted .

In ORG view , the decisions taken by X in the context of the inheritance partition proceedings could , at most , be regarded as “ erroneous ” but not as “ unfair ” . The court also pointed out that one of the questions at the heart of the dispute ( the existence of inheritance rights in favour of the partner ) had been settled by ORG differently from the applicant ’s proposed solution . ORG had in fact noted that the applicant ’s letters could have been seen as a means of pressure against the judges concerned .

According to ORG , the applicant had not expressly challenged the part of the first - instance judgment considering that the expressions contained in the circular letter had overstepped the limits of the right to criticise .

The applicant , who had no criminal record , had to be allowed the benefit of mitigating circumstances , and under LAW no . CARDINAL of DATE ( see paragraph CARDINAL below ) , the penalty for defamation was now a mere fine ( and not a custodial sentence ) .

ORG observed that the distribution of a letter such as that sent by the applicant , within a small court , could not but impugn the dignity of the judge against whom it was directed and his image as an independent judge . The expressions used by the applicant , outside any procedural act , sought to call into question the professional conduct of X , who was portrayed , within a restricted community , as a partial and soft judge . In the light of those considerations , ORG , ruling on an equitable basis , awarded the civil party ORG CARDINAL in non - pecuniary damage .

The applicant appealed on points of law .

He reiterated his grievances and , referring to a particular passage in his grounds of appeal , stated that ORG had made a mistake in asserting that the defendant had failed to challenge the finding about the offensive nature of the expressions contained in the circular letter . In any event , the judge had been required , at all stages of the proceedings , to verify of his own motion whether or not the criminal charge in question was made out .

In a judgment of CARDINAL DATE , deposited in the court ’s registry on DATE , ORG , finding that ORG had given logical and correct reasoning in respect of all the contentious points , dismissed the applicant ’s appeal on points of law .


CASE OF KRASNODĘBSKA-KAZIKOWSKA AND ŁUNIEWSKA v. POLAND

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

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

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

The applicants are legal successors of the former owners of a property in the vicinity of GPE , called PERSON , composed of a number of plots owned by several individuals .

NORP In DATE the then owners of the property , including ORG , the ORG mother , were obliged by an administrative decision to transfer their land to ORG without compensation within the framework of a larger expropriation scheme .

On DATE ORG ( PERSON w PERSON ) gave a decision concerning the applicants and CARDINAL other persons , legal successors of the other former owners expropriated by the DATE decision . It declared that that decision had been issued in flagrant breach of the law in force at the material time . The parties were further informed that the corrective decision gave rise to a compensation claim on their part for damage caused by the original unlawful decision .

On DATE the applicants sought compensation for damage caused by the decision given in DATE .

On CARDINAL DATE ORG allowed the applicants’ claim and awarded MONEY ( ORG ) to each of them , corresponding to the value of the expropriated land . It held that the conditions determining civil liability in tort , namely a tortious event which caused damage and the establishment of a causal link between the event and the damage , were met in the case . In respect of tort committed by ORG and caused by unlawful administrative decisions compensation could be sought only after a subsequent decision declared that the original administrative decision was unlawful . Such a corrective decision ( decyzja nadzorcza ) had been given in the applicants’ case in DATE ( see paragraph CARDINAL above ) .

CARDINAL alia , Article CARDINAL of the Code of Administrative Procedure and enacted Article CARDINAL CARDINAL

NORP The defendant ORG , represented by the mayor of GPE , appealed .

On DATE ORG examined the appeal and dismissed the applicants’ claim . It endorsed the findings of fact made by the lower court as to the existence of pecuniary damage and the causal link between the DATE decision and that damage . However , it was of the view that the provisions concerning the ORG ’s civil liability in tort should have been interpreted differently by the first - instance court , in particular as to the determination of the prescription period . The court observed that under the communist regime it was practically impossible , essentially for political reasons , to vindicate claims originating in unlawful administrative decisions or to seek compensation from ORG for damage in tort caused by such decisions . The earliest date on which it was possible to do so was DATE , when the first partially free parliamentary elections were held in GPE . It was from that date that the prescription period of DATE provided for by LAW started to run . The applicants should have availed themselves of the available remedy , namely they should have obtained a decision declaring the original expropriation decision unlawful prior to DATE when the DATE prescription period came to an end .

The applicants appealed on points of law . They argued that the contested judgment was in breach of LAW in so far as it guaranteed the right to compensation for damage caused by the ORG . Neither the damage caused by the DATE decision nor its unlawfulness were in dispute between the parties .

They further submitted that the case raised a significant legal issue in so far as there were divergent strands of case - law regarding the interpretation of legal provisions governing the ORG ’s civil liability for administrative decisions made prior to DATE and declared unlawful after that date . These differences in the judicial approach to similar cases , both as to the determination of the beginning of the prescription period and as to its length , had a decisive influence on the outcome of compensation cases brought by victims of unlawful administrative decisions and on the applicants’ case .

On DATE ORG , sitting in camera as a single judge , refused to hear the applicants’ appeal on points of law , holding that it did not raise any significant legal issue .

Parallel to the applicants’ case , ORG , a successor of another owner expropriated by the same expropriation decision given in DATE and covered by the same corrective decision of DATE ( see paragraph CARDINAL above ) , sought compensation in civil proceedings for damage caused by the original decision . She lodged her claim with ORG on DATE .

By a judgment of CARDINAL DATE ORG allowed her claim and awarded her compensation in the amount of ORG CARDINAL , corresponding to the value of the plot of land owned by ORG ’s legal predecessor . It recounted briefly the divergent views expressed by the civil courts , including ORG , in cases concerning claims for pecuniary damage caused by administrative decisions declared unlawful after DATE . It noted that the manner in which the provisions concerning the ORG ’s liability in tort for unlawful administrative decisions were interpreted had given rise to serious difficulties and differences of opinion in judicial practice . It disagreed with the view expressed in certain judicial decisions that the DATE prescription period for bringing compensation claims before the courts had started to run when the unlawful decision had been given , but its running was subsequently stayed until DATE . ORG was of the view that the CARDINAL

On DATE R.W. , another legal successor of the original owners , brought a compensation case before ORG , claiming compensation from ORG , represented by the mayor of GPE , for damage originating in the DATE decision . He also referred to the corrective decision of DATE .

By a judgment of DATE ORG allowed his claim and awarded him ORG CARDINAL,CARDINAL , corresponding to the value of the land concerned . The court stressed that it was not in dispute that the original administrative decision had been unlawful . Nor was it in dispute that that decision had caused damage to the claimant . The court referred to the resolution given by ORG on DATE ( see paragraph CARDINAL below ) . It shared the view expressed by ORG in this resolution that it was not justified to interpret the applicable provisions in a way imposing on the applicant an obligation to seek a declaration of unlawfulness of the original administrative decision within DATE after DATE .


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On an unspecified date an investigation was opened in respect of the applicant and CARDINAL other persons , ORG GPE , in connection with the killing in ORG , a NORP national . During the investigation A.B. gave oral evidence twice .

On DATE the applicant was indicted before ORG on charges of murder , while ORG GPE were charged under the same indictment with participating in a fight which resulted in the death of CARDINAL person . During the proceedings before the trial court PERSON did not testify and the oral evidence he had given during the investigation was read out . The applicant denied the veracity of his evidence .

On DATE ORG , composed of a panel of CARDINAL professional judges and CARDINAL lay judges , acquitted the applicant and found the other accused guilty as charged . Upon an appeal by the GPE ORG Attorney ’s ORG , on DATE ORG quashed the judgment in respect of the applicant and dismissed the charges against the other accused on account of the statutory prescription period . ORG also ordered that fresh proceedings against the applicant be conducted by a trial panel composed of different judges .

In the fresh proceedings a panel of CARDINAL different professional judges and CARDINAL different lay judges of ORG heard evidence from PERSON in the presence of the applicant and his defence lawyer on DATE . However , since one of the lay judges changed during the proceedings , the trial had to start afresh . At a hearing held on DATE the applicant agreed that PERSON ’s statement could be read out and on DATE the ORG again acquitted the applicant . That judgment was also quashed by ORG , on DATE , which again ordered a fresh trial with different judges .

A third round of proceedings was held before a panel of CARDINAL different professional judges ( PERSON and PERSON . PERSON ) and CARDINAL different lay judges ( GPE , ORG ) of ORG . At a hearing held on DATE PERSON gave oral evidence in the presence of the applicant and his defence counsel . On DATE Judge PERSON . PERSON was replaced by Judge PERSON and the lay judge ORG was replaced by another lay judge , PERSON At a hearing held on DATE that panel heard evidence from PERSON , in the presence of the applicant and his defence counsel . On CARDINAL DATE Judge PERSON was replaced by Judge PERSON and the trial had to start afresh . During the renewed proceedings the trial panel heard evidence from various witnesses , save for the witness PERSON whose prior statement was read out at a hearing held on DATE because he was in a psychiatric institution . PERSON was the only witness who said that he had seen the applicant attacking the victim . A request by the applicant for the trial panel to hear the witness in person was denied on the grounds that the witness was undergoing treatment for alcoholism in a psychiatric institution and that any absence from the institution would have a negative effect on his treatment .

On DATE the ORG found the applicant guilty of murder and sentenced him to CARDINAL months’ imprisonment , suspended for DATE .

NORP In an appeal of CARDINAL DATE , the applicant , inter alia , challenged the veracity of the evidence given by PERSON and objected to the trial court ’s decision not to hear evidence from that witness in person . The applicant countered the reason given by the trial court for not requesting PERSON to come to the hearing by submitting that the witness ’s psychiatric treatment was scheduled to be completed in DATE and that such a delay would not affect the applicant ’s trial .

On DATE ORG upheld the judgment of DATE . The relevant part of ORG judgment reads :

“ The accused is not right in [ alleging ] that the first - instance court committed a serious breach of the rules of criminal procedure when it , without the [ defence ’s ] consent , read out the statements of witnesses PERSON and G.A. The [ first - instance ] court was correct in deciding to read out the statement of witness PERSON ( page CARDINAL of the case file ) , who was questioned several times in these criminal proceedings , because a letter from ORG shows that he was undergoing medical treatment , namely that ‘ ... the medical treatment is ongoing and possible absence would not contribute to the overall therapeutic procedure ... ’ ( page CARDINAL of the case file ) . ”

A subsequent constitutional complaint by the applicant was dismissed by ORG on DATE .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

At the time of the events giving rise to the present application , the applicants lived in GPE and their children attended different public elementary schools .

On unspecified dates in DATE the applicants ( save for Mr PERSON ) each sent petitions to the PERSON , ORG and ORG with a request for their children to be provided with education in NORP in their respective elementary schools . It appears that similar petitions were submitted by many other parents of NORP ethnic origin around the same time .

According to the examples submitted by the applicants , the petitions were worded , with slight variations , as follows :

“ I want my child who is studying at ... school to receive education in NORP , which is his [ her ] mother tongue , in addition to education in NORP , at school ... ”

On receipt of the petitions the relevant education directorates informed ORG , which brought the matter to the attention of the principal public prosecutor ’s office at ORG .

On DATE the public prosecutor asked the Anti - terrorism branch of ORG to identify the names and addresses of the persons who had petitioned the ORG and ORG with a request for education in NORP . It appears that on an unspecified date the same instruction was given in relation to the petitions lodged with ORG .

On DATE the public prosecutor requested a warrant authorising a search of the homes of CARDINAL people , including the applicants , who had submitted petitions . The public prosecutor considered that the petitions in question had been made on the instructions of the NORP ( Workers’ ORG ) , an illegal armed organisation , and wished to collect relevant evidence from the ORG homes . ORG granted the public prosecutor ’s request DATE .

On DATE the public prosecutor instructed the Antiterrorism branch of ORG to conduct the searches with a view to finding evidence that could link the relevant persons to the ORG as aiders and abettors . It also instructed the Anti - terrorism branch to take the petitioners into police custody and question them in relation to the content and purpose of their petitions . The public prosecutor provided a list of questions to ask the petitioners , which mainly aimed to establish whether they had acted on the orders of the ORG .

Early on the morning of DATE police officers from the Anti - terrorism branch of ORG carried out a simultaneous search of all the properties , including the applicants’ houses . The search and seizure reports drafted by the police and signed by the applicants and other members of the household indicated that a search warrant had been issued by ORG on account of their petitions requesting education in NORP for their children . The reports also stated that the public prosecutor had ordered the petitioners’ arrest for questioning . According to these search and seizure reports , no illegal material was found in the applicants’ homes .

The applicants were arrested and taken into police custody following the searches on DATE . The search and seizure reports and custody records submitted by the Government indicate that the applicants were arrested and taken into police custody at the following times :

On DATE the applicants were questioned by officers from the Anti - terrorism branch of ORG . They were asked , in particular , whether they had submitted the petitions in accordance with the ORG ’s new “ civil disobedience ” strategy adopted at its Sixth National Conference held DATE . The applicants PERSON and PERSON claimed that they had not submitted any petitions requesting education in NORP to any ORG authorities . The remaining applicants mainly denied any affiliation with the ORG and stated that they had submitted the petitions in question so that their children could learn their GPE mother tongue . Some of the applicants also stated that the issue of submission of such petitions had also been discussed at the PERSON branch of ORG ) , a NORP political party , which they attended from time to time . The ORG signed statements suggest that interpretation services were provided to CARDINAL of them ( PERSON , PERSON and PERSON ) on request . A note drafted by the police also suggests that the applicants other than PERSON , PERSON , PERSON and PERSON were illiterate .

It appears that in the meantime , some of the applicants’ families contacted ORG seeking legal aid for their relatives during their detention in police custody . A lawyer was accordingly appointed . On DATE the lawyer applied to the public prosecutor ’s office at ORG for information in relation to CARDINAL of the applicants ( PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , Fatma GPE , PERSON and PERSON ) . In particular , he enquired about their legal status and the charges they were facing , and asked to meet them and to provide them with the necessary legal assistance . On DATE he applied to ORG to have the same CARDINAL applicants released , arguing that they were being held in custody unlawfully .

On DATE a judge at ORG decided that there was no need to decide on the lawyer ’s request as there was no record of the individuals in question being detained in relation to an investigation conducted by the public prosecutor ’s office . On DATE ORG rejected a request by the lawyer to have the decision rendered by the judge set aside .

In the meantime , on DATE the public prosecutor informed the lawyer that the applicants in question were in custody on suspicion of being affiliated with an illegal organisation , and that there was no need to decide on the lawyer ’s request to have access to them as no authorisation for their detention in police custody had yet been issued by the public prosecutor ’s office .

It appears that shortly after that decision , still on DATE , the public prosecutor authorised the applicants’ detention in police custody for DATE CARDINAL and DATE . The authorisation was granted in response to a request made by the Anti - terrorism branch of ORG , who had claimed that the applicants’ detention was needed for the completion of their files , in particular to verify whether the petitions had been submitted by the applicants themselves , whether they had any affiliation with the ORG and whether they were being searched for in connection with other offences ( see paragraph CARDINAL below for the legal basis for that authorisation ) .

At TIME on DATE the applicants were taken out of the detention centre and , following a routine medical check - up , were brought before the public prosecutor at ORG . They admitted before the public prosecutor that they had written the petitions , either themselves or with the help of their children , but stated that they had no other motive than wanting their children to learn their mother tongue . They denied any involvement with the ORG . Some of the applicants claimed that they had submitted petitions after hearing about it from other parents at school or on television . According to the information provided by the ORG , CARDINAL of the applicants ( PERSON , PERSON , PERSON , PERSON , PERSON , PERSON Can and PERSON ) were assisted by an interpreter during questioning by the public prosecutor .

At an unspecified time on DATE the applicants ( except for PERSON , PERSON and PERSON ) were brought before a judge at ORG , who ordered their release after taking statements from them . The applicants concerned were actually released following ORG order . CARDINAL of the applicants ( PERSON , PERSON , ORG , PERSON , PERSON , PERSON Can and PERSON ) were assisted by an interpreter before that court . It appears that PERSON , PERSON and PERSON were also released DATE , but the decision ordering their release was not submitted to the ORG .

On DATE the public prosecutor filed an objection concerning the decision to release the applicants , claiming that it was evident from the statements made by them following their arrest that they had submitted the petitions in an organised manner with the aim of assisting the ORG ’s “ politicisation ” process . The public prosecutor added that although the applicants appeared to have lawfully used their right to petition , in reality they were acting on the instructions of the ORG and were thus aiding and abetting that organisation .

On DATE ORG upheld the public prosecutor ’s objection in respect of the applicants PERSON , PERSON , PERSON , NORP Can , ORG , ORG , and issued a warrant for their arrest . The court did not provide any reasons for its decision .

On DATE the lawyer asked ORG to set aside its decision of DATE ordering the arrest of the relevant applicants . On DATE ORG dismissed that request , basing its decision on the nature of the offence , date of arrest , state of the evidence and contents of the case file .

In the meantime , on DATE PERSON , ORG and PERSON were arrested on the basis of that warrant . DATE they were remanded in custody . It appears that the remaining CARDINAL applicants named in the warrant could not be located .

On DATE the applicants PERSON and PERSON filed objections concerning their detention on remand .

On DATE ORG dismissed PERSON and PERSON objections , basing its decision on the nature of the offence and the state of the evidence .

On DATE the public prosecutor at ORG decided not to prosecute the applicant PERSON because of a lack of evidence against him .

On DATE the public prosecutor issued an indictment against CARDINAL suspects , including the remaining applicants , accusing them of aiding and abetting an armed organisation under LAW and LAW no . ORG ) in force at the material time . In the indictment the public prosecutor stated that following the arrest and conviction of their leader PERSON , the ORG had set out to pursue new policies . Accordingly , at the Sixth National Conference held between CARDINAL and DATE , it had adopted the “ ORG and Peace Project ” , a new strategy which had involved undertaking non - violent activities of “ civil disobedience ” and aimed at leaving the ORG and its authorities in a difficult position in the international arena . The public prosecutor submitted that such organised acts of civil disobedience agreed on by the ORG had included petitioning the ORG authorities for education in NORP , dressing up in traditional NORP female costume , and applying to courts or population registration offices with requests for their NORP identities to appear on their national identity cards . When viewed against this background , the petitions in question DATE which had been submitted to certain authorities on predetermined dates and times – could not be considered to be individual acts . They had actually been part of an organised movement which had aimed to implement the decisions adopted by the ORG and thereby undermine the authority of the ORG .

On DATE the first - instance court ordered the release of the applicants PERSON , ORG and PERSON pending the criminal proceedings .

On DATE ORG acquitted all the accused , including the applicants , because on the facts none of the elements of the crime of aiding and abetting an armed organisation had been present in their actions and there was no other evidence to support the allegations brought against them . The judgment became final on DATE .


Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The applicant , J.L. , is a NORP national who was born in DATE and lives in GPE . 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 PERSON of ORG , a lawyer practising in GPE .

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

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

The applicant was married to an army officer . He was an alcoholic who had been violent towards her and had abused CARDINAL of her twin daughters . In DATE he resigned from the army following a court martial which found him guilty of ungentlemanly conduct . The army therefore no longer had any duty to house the applicant but on compassionate grounds , because of her husband ’s misconduct towards her and her family , it was arranged that she should move to ORG accommodation in GPE where her daughters , then aged DATE , were attending boarding school .

The applicant and her daughters moved into the accommodation in GPE in DATE as “ irregular occupiers ” . However , the accommodation in GPE was supposed to be temporary until the applicant was able to obtain housing through the local council and her licence to occupy was terminated on DATE .

ORG was granted a possession order in DATE and attempts were made to find alternative accommodation for the applicant and her children . However , the applicant has a history of spinal surgery , osteoarthritis , poor mobility and chronic pain . She is currently registered disabled and has to use a wheelchair . When an offer of alternative accommodation was made , it was refused because it was not suitable for wheelchair use .

On DATE a letter was sent from the headquarters of LOC of the army stating that the applicant was ill - advised to reject the offer because she had removed herself from ORG priority housing list and the only alternative was to rent or purchase in the private sector . It was asserted that the applicant had been rejecting all attempts to provide help and advice and , in the absence of a specific plan to obtain alternative accommodation , there was no alternative but to apply for a warrant of possession .

NORP In DATE a further letter was sent indicating that the army would do everything they could to help in a difficult situation . The letter also asked for a medical report and an indication of what steps would be taken . Nothing appears to have happened following receipt of the letter and the applicant and her family remained in occupation .

In DATE ORG sold its property to a company called ORG and leased it back . In DATE it was said that the applicant ’s dwelling was surplus to requirements for ORG and should be handed back to ORG . On DATE a fresh notice to quit was served on the applicant .

There was a further delay and on DATE a warrant for possession was sought based on the order made in DATE . The court refused to grant the order as it concluded that a fresh tenancy had been granted since DATE .

Due to a shortage of ORG housing in the GPE area , a further notice to quit was served in DATE . In DATE ORG Assistant Director of Housing met with ORG . At the meeting social services offered to write to the applicant to provide help and advice on re - housing .

On DATE ORG commenced possession proceedings in ORG . On DATE the applicant served a defence and counterclaim in which she asserted that the claim for possession was unlawful and would constitute a breach of her rights under LAW . At the time the applicant was living in the property with her QUANTITY daughters . CARDINAL daughter suffered from mental health problems while the other daughter had a young son who suffered from Crohn ’s disease .

On DATE the case was transferred to ORG .

On DATE ORG made a possession order in favour of ORG . It observed that following PERSON and others v. ORG [ DATE ] ORG CARDINAL the applicant could only challenge the decision to bring possession proceedings and not the proceedings themselves . In the present case there had been no obligation on the authority to enquire into the personal circumstances of the applicant and even if it were aware of her circumstances , personal disability would not generally provide a proper basis for declining to take proceedings . Moreover , while ORG had not always acted in a way which lived up to the proper standards of good administration , there was no reason to doubt that there was a real need for the property . As the Ministry ’s need for available accommodation overrode the applicant ’s rights under LAW , it followed that she could not stay in the property forever and therefore could not have security . Possession had to be attained in due course , although it fell to ORG to consider the question of rehousing .

On DATE ORG refused to grant the applicant leave to appeal . Following renewal of the application , permission was again refused on DATE .

The applicant introduced her complaints to ORG on DATE . At that time the possession order had not been executed as suitable alternative accommodation had not been identified .

DATE ORG handed down its judgment in ORG v. PERSON [ DATE ] ORG CARDINAL ( see paragraphs DATE below ) . In that judgment ORG considered that in order for domestic law to be compatible with LAW , where a court was asked by a local authority to make an order for possession of a person ’s home , the court had to have the power to assess the proportionality of making the order and , in making that assessment , to resolve any relevant dispute of fact .

In DATE the Secretary of ORG decided to take action to enforce the possession order . He applied for and obtained a writ of possession issued on DATE .

The applicant subsequently issued domestic proceedings , requesting that the decision to enforce the possession order made against her be judicially reviewed in light of the judgment in GPE . In particular , she submitted that Article CARDINAL entitled her to a single proportionality review of the eviction process and following PERSON this review had to be conducted when the domestic court was deciding whether or not to make a possession order . As a consequence , such a right could not arise at the enforcement stage .

On DATE the ORG adjourned the application pending the outcome of the domestic proceedings .

The High Court handed down its judgment on DATE . It held , inter alia , that there was no reason to doubt that Article CARDINAL remained engaged at the enforcement stage , as enforcement itself involved a significant and direct infringement of the tenant ’s occupation of her home . That being said , the court held that it would not be in every case that a proportionality review would be appropriate at the enforcement stage . Indeed , where the question of proportionality had been raised and addressed at the possession stage , or where it could have been raised and addressed , it would be difficult for the tenant successfully to invoke it at the enforcement stage absent a marked change in circumstances or some other exceptional reason justifying its consideration . In the vast majority of cases where enforcement took place within DATE or DATE of the possession order , it would be unlikely that such justification could be established . In the present case , the court noted that the domestic courts had been unable to consider LAW in making the possession order , and concluded that in such circumstances she was entitled to a proportionality review at enforcement stage .

The High Court therefore conducted a proportionality review in the applicant ’s case . It considered her longstanding mobility and ill - health difficulties ; her daughter ’s longstanding psychiatric disorder and the impact a forced eviction would have on her ; the family ’s need for particular and accessible accommodation ; and the hardship they would face if required to move . However , given the Secretary of ORG legitimate aim in seeking possession ( his right to do so under domestic law and his public law duty effectively to manage ORG resources ) , and in light of the high threshold identified by ORG in both GPE of GPE v Powell and Others [ DATE ] ORG CARDINAL and PERSON ( see paragraphs CARDINAL - CARDINAL below ) , the court held that the applicant ’s circumstances did not render it disproportionate to seek enforcement of the possession order .

In reaching this conclusion , the court found the following considerations to be of particular relevance : the high threshold that applied to an LAW in possession proceedings applied with even more force at the later stage ; ORG did not have the public function of providing social housing generally ; ORG had such a public function , and it had awarded the applicant the highest level of priority possible ; even if the family had to be placed in temporary accommodation pending the identification of a suitable permanent home , they would be placed together in accommodation that suited their needs ; the applicant had been warned that she could not remain in the property indefinitely ; the Secretary of ORG had refrained from seeking to enforce the possession order for DATE after it became enforceable to give the applicant an opportunity to find alternative accommodation ; no one could say with any certainty that the applicant ’s situation would be different within any fixed time - frame ; and finally , there was no evidence to suggest that the eviction would be more detrimental now than in the future .

NORP The applicant appealed to ORG , which dismissed the appeal on DATE . In doing so , it agreed with ORG that while in the overwhelming majority of cases the occupant ’s LAW could be appropriately and sufficiently respected by the provision of a proportionality review during the possession proceedings themselves , in exceptional cases such as the present the raising of LAW at enforcement stage would not be an abuse of process . It also accepted that in the present case such a review could only have taken place at enforcement stage and the judge had been correct to carry it out when she did . It found that the judge had carried out a careful and sympathetic analysis of the consequences for the applicant and her family of the threatened eviction and her conclusions on proportionality could not be faulted .

Pursuant to LAW , in order to evict a tenant a landlord must first serve a notice to quit , giving the tenant CARDINAL GPE notice . If the tenant does not leave the property voluntarily , the landlord must apply to court for an order for possession . If the court grants the order , it will specify the date on which the tenant must give up possession of the property . If the tenant does not give up possession on that date , the landlord must apply to court for a warrant of possession ( see LAW CCR Order CARDINAL , as set out in PERSON to ORG ) .

For a general summary of domestic proceedings prior to DATE regarding the right of defendants to rely on LAW in the context of a defence to possession proceedings , see the ORG ’s judgment in PERSON and Others v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .

Notably , in PERSON and others v. GPE of GPE and others ; and ORG v. Price and others [ DATE ] ORG CARDINAL , Lord Hope of PERSON clarified the CARDINAL “ gateways ” via which a defendant in possession proceedings could challenge his eviction :

“ ... Where domestic law provides for personal circumstances to be taken into account , as in a case where the statutory test is whether it would be reasonable to make a possession order , then a fair opportunity must be given for the arguments in favour of the occupier to be presented . But if the requirements of the law have been established and the right to recover possession is unqualified , the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these : ( a ) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article CARDINAL [ “ gateway ( a ) ” ] , the county court in the exercise of its jurisdiction under LAW DATE should deal with the argument in CARDINAL or other of CARDINAL ways : ( i ) by giving effect to the law , so far as it is possible for it do so under LAW , in a way that is compatible with article CARDINAL , or ( ii ) by adjourning the proceedings to enable the compatibility issue to be dealt with in ORG ; ( b ) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable [ “ gateway ( b ) ” ] , he should be permitted to do this provided again that the point is seriously arguable ... ”

Lord PERSON of PERSON - under - Heywood referred to the amendment to the DATE Act allowing ORG to suspend , for DATE at a time , any possession order in respect of a local authority caravan site and noted :

“ ... Now , therefore , the county court would be entitled to suspend the order made against someone in Mr Connors’ position ; previously , it was not .

By the same token moreover that the county court judge would have been unable , under the pre - existing law , to decline or postpone a possession order in the case of someone in Mr Connors’ position , so too in my judgment he is unable in other cases to give greater effect or weight to the occupier ’s right to respect for his home than is allowed for under domestic law ... ”

He added :

“ The difficulty with such [ a public law ] defence , however , is that it would be well nigh impossible to make good , the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession . Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right . This would be a more stringent test than would apply were the court ... under a primary duty to reach its own judgment on the justifiability of making a possession order .

For my part I think that such an argument could perhaps have been mounted successfully in ORG : having regard to the great length of time ( most of DATE ) that that gypsy family had resided on the site , it was unreasonable , indeed grossly unfair , for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action ...

It is difficult to suppose , however , that a defence based on a public law challenge of this character to a public authority ’s decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as ORG itself ... ”

The subsequent case of PERSON and others v. ORG [ DATE ] ORG CARDINAL considered the PERSON gateways . As regards the scope of gateway ( b ) , Lord Hope clarified :

“ DATE . ... [ T]he speeches in PERSON show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review ...

NORP ... [ I]t will be open to the defendant by way of a defence to argue under gateway ( b ) that the order should not be made unless the court is satisfied , upon reviewing the respondent ’s decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised , that the decision to do this was in the PERSON sense not unreasonable ...

I think that in this situation it would be unduly formalistic to confine the review strictly to traditional ORG grounds . The considerations that can be brought into account in this case are wider . An examination of the question whether the respondent ’s decision was reasonable , having regard to the aim it was pursuing and to the length of time that the appellant and his family have resided on the site , would be appropriate . But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority . In my opinion the test of reasonableness should be , as I said in para CARDINAL of PERSON , whether the decision to recover possession was one which no reasonable person would consider justifiable . ”

On DATE ORG sitting as a panel of CARDINAL judges in ORG v. PERSON [ DATE ] ORG CARDINAL ( “ Pinnock ” ) considered the application of Article CARDINAL to a claim for possession brought against a demoted tenant under LAW V of LAW DATE ( as inserted by paragraph CARDINAL of Schedule CARDINAL to the Anti - social LAW DATE ) . Following a review of the case - law , ORG considered the following propositions to be well established in the jurisprudence of this ORG :

“ ( a ) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure , and to have it determined by an independent tribunal in the light of DATE , even if his right of occupation under domestic law has come to an end ...

( b ) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review ( i e , one which does not permit the court to make its own assessment of the facts in an appropriate case ) is inadequate as it is not appropriate for resolving sensitive factual issues ...

( c ) Where the measure includes proceedings involving CARDINAL stage , it is the proceedings as a whole which must be considered in order to see if article CARDINAL has been complied with ...

( d ) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there , it would be unlawful to evict him so long as the conclusion obtains – for example , for a specified period , or until a specified event occurs , or a particular condition is satisfied . ”

ORG thus considered that in order for domestic law to be compatible with LAW , where a court was asked by a local authority to make an order for possession of a person ’s home , the court had to have the power to assess the proportionality of making the order , and , in making that assessment , to resolve any relevant dispute of fact .

In terms of the practical implications of this principle , ORG noted that if domestic law justified an outright order for possession , the effect of DATE could , albeit in exceptional cases , justify granting an extended period for possession , suspending the order for possession on the happening of an event , or even refusing an order altogether .

Finally , the court observed that the need for a court to have the ability to assess the LAW proportionality of making a possession order in respect of a person ’s home might require certain statutory and procedural provisions to be revisited .

In GPE of GPE v Powell and Others [ DATE ] ORG CARDINAL ( “ PERSON ” ) , handed down on DATE , ORG held that the principle in PERSON applied not only to demoted tenancies but to all cases where a local authority was seeking possession in respect of a property that constituted a person ’s home for the purposes of LAW .

Lord Hope observed that following PERSON the court had to have the ability to assess the LAW proportionality of making a possession order in respect of a person ’s home , even if his or her right to occupation had come to an end . The question of whether the property in question constitutes the defendant ’s “ home ” was likely to be of concern only in cases where an order for possession was sought against a defendant who had only recently moved into accommodation on a temporary or precarious basis . Therefore , in most cases it could be taken for granted that a claim by a person who was in lawful occupation to remain in possession would attract the protection of article CARDINAL .

With regard to the proportionality assessment , Lord Hope stated that :

“ CARDINAL . The basic rules are not now in doubt . The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable . The question will then be whether making an order for the occupier ’s eviction is a proportionate means of achieving a legitimate aim . ”

The threshold for raising an arguable case on proportionality was a high one which would only succeed in a small proportion of cases . However , if the threshold was crossed , the court would have to consider whether making an order for possession was a proportionate means of achieving a legitimate aim . Lord Hope continued :

“ The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would ( a ) serve to vindicate the authority ’s ownership rights ; and ( b ) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock . Various examples were given of the scope of the duties that the second legitimate aim encompasses – the fair allocation of its housing , the redevelopment of the site , the refurbishing of sub - standard accommodation , the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden - assisted housing . In GPE and ORG ) ( unreported ) given DATE , para CARDINAL the GPE court indicated that the first aim on its own will not suffice where the owner is the ORG itself . But , taken together , the twin aims will satisfy the legitimate aim requirement .

So , as was made clear in GPE , para CARDINAL , there will be no need , in the overwhelming majority of cases , for the local authority to explain and justify its reasons for seeking a possession order . It will be enough that the authority is entitled to possession because the statutory pre - requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock . The court need be concerned only with the occupier ’s personal circumstances and any factual objections she may raise and , in the light only of what view it takes of them , with the question whether making the order for possession would be lawful and proportionate . If it decides to entertain the point because it is seriously arguable , it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority : PERSON and ORG , para CARDINAL .

In the ordinary case the relevant facts will be encapsulated entirely in the CARDINAL legitimate aims that were identified in GPE , para CARDINAL . It is against those aims , which should always be taken for granted , that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances . It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality . If this test is not met , the order for possession should be granted . This is all that is needed to satisfy the procedural imperative that has been laid down by the GPE court . ”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in DATE and is currently serving his term of imprisonment in ORG Tagil .

Since DATE the applicant waited trial in remand prison IZCARDINAL/CARDINAL in GPE . According to him , DATE and DATE he was transported by prison van on CARDINAL occasions between the remand prison and temporary detention facility of Cheboksary ( ORG ) which was the closest secure facility to the court building . Although on some rare occasions the applicant was alone in the van , during other trips he was either placed in a single occupancy cell measuring CARDINAL sq . m or remained on his feet because there were no free seats . There were no toilets in the vans , prisoners used plastic bottles . On DATE of transport , the applicant did not receive food rations . Lengthy check - in and check - out procedures resulted in TIME wait at either facility with inmates staying inside vans . The applicant submitted a certificate issued by the remand prison governor showing the dates of his transport .

The Government provided a description of the applicant ’s conditions of transport , relying on transport logs concerning CARDINAL trips , photographs of the vans , and CARDINAL certificates issued by ORG of the Republic . One of the certificates lacked references to any original documentation and mentioned CARDINAL trips and the one referred to “ extracts from the prisoner transport logs ” and listed QUANTITY trips on different dates . The Government stated that they could not provide the full information about the conditions of the applicant ’s transport . They added that the applicant was transported on CARDINAL occasions in total , on CARDINAL of which he was in the van alone . The number of prisoners did not exceed the maximum capacity of vans , an average trip lasted TIME , some of the vans were equipped with toilets , and the applicant was provided with dry food rations .


Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary

The applicant was born in DATE and lives in GPE ) . When lodging his application , he was detained in FAC .

On DATE the ORG convicted the applicant of several counts of extortion , robbery , burglary , embezzlement and assault . Applying the criminal law relating to young offenders , it sentenced him to DATE imprisonment . ORG suspended the execution of the sentence and granted probation . In a separate decision of DATE , ORG imposed conditions on the applicant during the probation period , which was to run until DATE . The applicant was not to reoffend ; in addition , he was ordered , inter alia , to complete TIME of unpaid social work .

On DATE the applicant ’s counsel informed ORG that he represented the applicant in the proceedings concerning the applicant ’s probation .

On DATE the ORG issued a detention order against the applicant , which was confirmed on appeal . The courts found that there was a strong suspicion that the applicant had committed a burglary on CARDINAL May/CARDINAL DATE in a hotel in PERSON . The suspicion was based on the witness statement made by the applicant ’s former girl - friend PERSON to the police .

By a letter dated CARDINAL DATE the applicant ’s counsel notified ORG , which received the letter on CARDINAL DATE , that he represented the applicant also in the investigation proceedings concerning the burglary on CARDINAL May/CARDINAL DATE .

On DATE the applicant was arrested . He was heard on DATE by the investigating judge at ORG , without his counsel being present , on suspicion of having committed the burglary in a hotel on CARDINAL May/CARDINAL DATE in PERSON . The applicant , who had been informed of his rights to remain silent and to consult a defence counsel at any time , admitted having committed the offence described in the detention order of DATE .

On DATE , in a hearing before ORG for review of the necessity of his further detention on remand , the applicant , in the presence of his counsel , revoked his confession of DATE . He submitted that he had only admitted having committed the burglary on CARDINAL May/CARDINAL DATE as a police officer had told him at the time of his arrest that he had good chances of being released from detention on remand if he did so .

Subsequently , on DATE , ORG charged the applicant with the burglary committed in PERSON .

On DATE the ORG , relying on section CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) , revoked the suspension on probation of the applicant ’s prison sentence granted in that court ’s judgment of DATE .

ORG noted that in its decision of DATE to suspend the sentence on probation , the applicant had been imposed the condition not to reoffend during the probation period . He had breached that condition as he had confessed having committed a burglary on CARDINAL May/CARDINAL DATE in PERSON . His new offence was similarly serious as the offences he had been convicted of on DATE .

ORG further observed that the applicant had failed to comply with additional conditions imposed in the probation order . In particular , he had not completed the unpaid social work he had been obliged to carry out and had not contacted his probation officer without having a valid excuse .

On DATE the applicant lodged an appeal against ORG decision . He contested the court ’s finding that he had reoffended . He stressed , in particular , that he had revoked his confession of CARDINAL DATE . Moreover , a confession alone , the credibility of which had not been tested , was not sufficient to be proved guilty of an offence . In any event , under the standards of NORP law , the revocation of the suspension of a sentence on probation could only be based on a final conviction of a new offence . He had to be presumed innocent until proved guilty according to law .

On DATE ORG dismissed the applicant ’s appeal against ORG decision . ORG considered that the revocation of the suspension on probation of the applicant ’s prison sentence under LAW of LAW could not be based on the applicant ’s failure to carry out the unpaid social work he had been imposed in the probation order because ORG had failed to specify in which institution the applicant was to do that work .

ORG further found : “ However , ultimately it was nevertheless correct to revoke the suspension on probation as the convicted offender , as ORG had correctly found , committed another offence during the probation period . ” ( “ PERSON jedoch i m Ergebnis gleichwohl zu ORG erfolgt , denn PERSON , wie das ORG zutreffend angenommen hat , innerhalb der PERSON straffällig geworden . “ ) .

ORG confirmed that the revocation of the suspension of the applicant ’s sentence did not require that the applicant had been convicted by a final judgment of the offence on which the revocation was based . It was sufficient that the court revoking the suspension of the sentence had obtained certainty by other means that the person concerned had committed the offence . The presumption of innocence laid down in LAW did not warrant a different conclusion . That presumption only related to proceedings in which a decision on the charges against the accused had to be taken and not to proceedings concerning the revocation of the suspension of a sentence on probation . Referring , in particular , to a decision of ORG of DATE ( see paragraphs DATE below ) , ORG found that it was therefore sufficient , in particular , that the court revoking the suspension on probation of the penalty was convinced that the person concerned was guilty of a new offence on the basis of a credible confession that person made before a judge .

In the case before it , ORG then found that in view of the applicant ’s confession on DATE before the investigating judge , it was of the “ firm conviction that the applicant had again committed an offence ” ( “ sichere PERSON erneuten PERSON durch den GPE ) , namely a burglary on CARDINAL May/CARDINAL DATE in a hotel in PERSON . The applicant ’s confession was credible , in particular , as it was supported by the detailed description of the applicant ’s acts before and after the offence given by witness PERSON before the police . The subsequent revocation of the confession by the applicant , who had further contested S. ’s statements , arguing that PERSON wanted to take revenge following the breakdown of their relationship , was not credible in the light of the results of the investigations undertaken to date . ORG referred in this respect , in particular , to the reports of the witness statements made by PERSON and by PERSON , an employee of the hotel concerned , before the police . ORG therefore concluded that the applicant had demonstrated by his new offence that he had not fulfilled the expectations on which the suspension of his sentence had been based .

On DATE , following a decision of ORG , the applicant ’s detention on remand was interrupted in order for him to serve the sentence imposed on him in ORG judgment of DATE .

On DATE the applicant lodged a constitutional complaint with ORG against the decisions of ORG dated DATE and of ORG dated DATE . He argued , in particular , that the said courts’ finding , on the basis of the case - file alone , that he had committed another burglary had disregarded the rule of law and the presumption of innocence as guaranteed by LAW and by LAW and CARDINAL of the LAW . His initial confession before the investigating judge was irrelevant as he had revoked that confession , the credibility of which had not been tested by the courts revoking the suspension of his sentence on probation . He further took the view that the question whether he had committed a new burglary had to be determined by the competent criminal courts following a trial . The domestic courts’ finding that he had committed another burglary before he had been convicted thereof by a final judgment also disregarded ORG Rights’ findings in a judgment of DATE ( GPE v. GPE , no . CARDINAL ) .

On DATE ORG , without giving reasons , declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE the ORG convicted the applicant of burglary , committed on CARDINAL May/CARDINAL DATE in a hotel in PERSON , and sentenced him to DATE imprisonment . The judgment became final on DATE .

The applicant was released from prison on CARDINAL DATE .