Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants , ORG PERSON ( “ the first applicant ” ) , PERSON PERSON ( “ the second applicant ” ) , PERSON ( “ the third applicant ” ) , and PERSON ( “ the fourth applicant ” ) are all NORP citizens who were born in DATE , DATE , DATE and DATE , respectively , and currently live in GPE , GPE .

On DATE and DATE , respectively , the first and the second applicants , both employed with ORG , on DATE , the third applicant employed with PERSON ( succeeded by ORG ) , and on DATE the fourth applicant employed with “ ORG pamučna predionica ” , were all “ placed ” by their respective “ socially - owned ” employers on “ compulsory ” paid leave “ until such time ” when “ normal production could be resumed ” and the said ORG business performance “ improved sufficiently ” .

Whilst on this leave , in accordance with the relevant domestic legislation , the applicants were entitled to a significantly reduced DATE income , as well as the payment of their pension , disability and other social security contributions .

Since the companies failed to fulfil these obligations , the applicants brought numerous separate civil claims before ORG ( PERSON ) in ORG ( hereinafter “ the ORG ” ) .

On DATE ORG ruled in favour of the first applicant and ordered her employer to pay her the DATE “ paid leave benefits ” ( “ naknada za vreme plaćenog odsustva ” ) due from DATE to DATE , plus statutory interest .

This judgment became final in DATE or DATE .

On DATE ORG ruled in favour of the applicant and ordered her employer to pay her :

i. the DATE paid leave benefits due from DATE to CARDINAL DATE , with statutory interest ; and

ii . MONEY for her legal costs .

This judgment became final on DATE .

On DATE ORG again ruled in favour of the applicant and ordered her employer to pay her :

i. the DATE paid leave benefits due from DATE ( MONEY in all ) , together with statutory interest ;

ii . MONEY for her legal costs ; and

iii . the pension and disability insurance contributions ( “ doprinosi za penzijsko i invalidsko osiguranje ” ) due for that period .

This judgment became final on DATE .

On DATE the applicant filed a request for the enforcement of the above judgments , proposing that it be carried out either by means of a bank account transfer or through the auctioning of the debtor ’s specified movable and/or immovable assets .

On DATE ORG accepted the applicant ’s request and issued an enforcement order .

On DATE ORG provided ORG ( ORG banka ORG ) with this order .

On DATE ORG ruled in favour of the first applicant and ordered her employer to pay her :

i. the DATE paid leave benefits due from DATE to DATE ( MONEY in all ) , together with statutory interest ;

ii . MONEY for her legal costs ; and

iii . the pension , disability , health and unemployment insurance contributions due for that period .

This judgment became final on DATE .

On DATE the applicant filed a request for the enforcement of the above judgment , proposing that it be carried out either by means of a bank account transfer or through the auctioning of the debtor ’s specified movable and/or immovable assets .

On DATE ORG provided ORG with this order .

ii . MONEY for her legal costs ; and

iii . the pension , health and unemployment insurance contributions due from DATE to CARDINAL DATE and DATE to CARDINAL DATE .

This judgment became final on DATE .

On DATE and DATE the applicant filed CARDINAL separate requests for the enforcement of the above judgment , proposing that it be carried out either by means of a bank account transfer or through the auctioning of the debtor ’s specified movable and/or immovable assets .

On DATE and DATE , respectively , ORG accepted the applicant ’s requests and issued CARDINAL enforcement orders .

ii . MONEY for her legal costs ; and

This judgment became final on DATE .

On DATE the applicant filed a request for the enforcement of the above judgment ( except for the costs awarded ) , proposing that it be carried out through the auctioning of the debtor ’s specified immovable assets .

It would appear that the first applicant ’s employer ultimately paid the various pension and other social insurance contributions awarded in the above judgments , but that the paid leave benefits , legal costs and statutory interest have yet to be enforced .

On DATE and DATE , respectively , ORG ruled in favour of the second applicant and ordered her employer to pay her :

ii . the pension and disability insurance contributions due for that period ; and

iii . MONEY for her legal costs .

On an unspecified date thereafter these judgments became final .

On DATE , DATE and DATE , respectively , ORG accepted the applicant ’s enforcement requests and ordered that the above judgments be executed either by means of a bank account transfer or through the auctioning of the debtor ’s specified movable and/or immovable assets .

On DATE ORG stayed the proceedings based on the relevant provisions of the LAW and Additions to LAW DATE ( see paragraphs CARDINAL - CARDINAL below ) .

On DATE ORG ruled in favour of the second applicant and ordered her employer to pay her the DATE paid leave benefits due from DATE to CARDINAL DATE , as well as those due from DATE to DATE ( the latter amounting to MONEY in all ) , together with statutory interest and MONEY for her legal costs .

This judgment became final on DATE .

On DATE the applicant filed a request for the enforcement of the above judgment , proposing that it be carried out through the auctioning of the debtor ’s specified movable and/or immovable assets . On DATE the applicant requested that enforcement also be attempted by means of a bank account transfer .

On DATE and DATE , respectively , ORG accepted the applicant ’s enforcement requests and issued CARDINAL separate orders .

In DATE some of the debtor ’s movable assets were sold and a number of other NORP claims were settled . The applicant , however , received nothing in view of her low ranking on the list of creditors .

On DATE and CARDINAL DATE , respectively , ORG ruled in favour of the second applicant and ordered her employer to pay her :

i. the DATE paid leave benefits due from DATE to DATE , ( MONEY in all ) , together with statutory interest ;

iii . MONEY for legal costs .

On DATE ORG accepted the applicant ’s request and issued an enforcement order .

On DATE ORG provided ORG with this order .

Soon thereafter some of the debtor ’s movable assets were sold and a number of other LOC claims were settled . The applicant , however , received nothing in view of her low ranking on the list of creditors .

On DATE ORG ruled in favour of the second applicant and ordered her employer to pay her :

i. the DATE paid leave benefits due from DATE ( MONEY in all ) , together with statutory interest ;

ii . the pension and disability insurance contributions due from DATE to DATE and DATE to CARDINAL DATE ; and

iii . MONEY for legal costs .

On an unspecified date thereafter this judgment became final .

On DATE and DATE , respectively , the applicant filed CARDINAL separate requests for the enforcement of the above judgment , proposing that it be carried out either by means of a bank account transfer or through the auctioning of the debtor ’s specified movable and/or immovable assets .

On DATE and DATE ORG accepted the applicant ’s successive requests and issued CARDINAL separate enforcement orders .

On DATE and DATE , respectively , ORG provided ORG with these orders .

On DATE ORG ruled in favour of the third applicant and ordered her employer to pay her the DATE paid leave benefits due from DATE to DATE ( MONEY in all ) , together with statutory interest as of DATE , and MONEY for legal costs .

This judgment became final on DATE .

On DATE the applicant filed a request for the enforcement of the above judgment , proposing that it be carried out by means of a bank account transfer .

On DATE ORG issued an enforcement order .

On CARDINAL DATE ORG provided ORG with this order .

On DATE the applicant complained about the delay to ORG and proposed alternative enforcement through the auctioning of the debtor ’s movable assets .

On DATE the applicant urged ORG to consider her request of CARDINAL DATE .

On DATE ORG ruled partly in favour of the third applicant and ordered her employer to pay her :

i. the DATE paid leave benefits due from DATE to CARDINAL DATE , together with statutory interest ;

ii . the pension and disability insurance contributions due from DATE ; and

iii . MONEY for legal costs .

This judgment became final on DATE .

On DATE ORG accepted this request and issued an enforcement order .

On an unspecified date thereafter ORG provided ORG with this order .

On DATE the latter informed the former that certain information needed for the enforcement was missing .

DATE . On DATE the applicant provided ORG with the information sought and on DATE this information was forwarded to ORG .

On DATE ORG ruled in favour of the third applicant and ordered her employer to pay her :

i. the DATE paid leave benefits due from DATE to CARDINAL DATE ( MONEY in all ) , together with statutory interest ;

iii . MONEY for legal costs .

This judgment became final on DATE .

In DATE ORG provided ORG with this order , but by DATE the latter informed the former that certain information needed for the enforcement was missing .

On DATE ORG terminated enforcement of the pension and disability insurance contributions since the applicant had failed to cover the anticipated costs of a financial expert .

On DATE the applicant was declared redundant .

DATE . On DATE she signed an agreement with the debtor concerning her salary arrears and taxes , as well as her other labour - related benefits and/or contributions . The agreement provided , inter alia , that :

i. all pension and disability insurance contributions due by DATE shall be covered by the debtor within DATE ;

ii . the applicant shall renounce her right to seek judicial enforcement of any final judgments rendered in her favour before DATE ; and

iii . the applicant shall be paid MONEY in accordance with the Government ’s “ social programme ” .

It would appear that the applicant had received the said payment , but that the debtor has yet to cover the pension and disability insurance contributions in question .

On DATE ORG ruled in favour of the fourth applicant and ordered her employer to pay her :

i. the DATE paid leave benefits ( minimalnu zaradu ) due from DATE to DATE ( PERSON in all ) , plus statutory interest ;

ii . MONEY for her legal costs ; and

iii . the social security contributions due from DATE to CARDINAL DATE .

This judgment became final by DATE .

On DATE and DATE , respectively , the applicant filed CARDINAL separate requests for the enforcement of the above judgment , proposing that it be carried out either by means of a bank transfer or through the auctioning of the debtor ’s movable and/or immovable assets .

On DATE and DATE ORG accepted the applicant ’s requests and issued CARDINAL separate enforcement orders .

i. the DATE paid leave benefits due from DATE to DATE ( MONEY in all ) , plus statutory interest ;

ii . MONEY for her legal costs ; and

iii . the social security contributions due for that period .

This judgment became final by CARDINAL DATE .

On DATE the applicant filed a request for the enforcement of the above judgment , proposing that it be carried out either by means of a bank transfer or through the auctioning of the debtor ’s movable and/or immovable assets .

On DATE ORG accepted the applicant ’s request and issued an enforcement order .

i. the DATE paid leave benefits due from DATE to DATE ( MONEY in all ) , plus statutory interest ; and

ii . the social security contributions due for that period .

On DATE ORG again ruled in favour of the applicant and ordered her employer to pay MONEY for her legal costs incurred during the above proceedings .

Both decisions became final by DATE .

On DATE the applicant filed a request for their enforcement , proposing that it be carried out either by means of a bank transfer or through the auctioning of the debtor ’s specified movable and/or immovable assets .

ii . MONEY for her legal costs ; and

On DATE the applicant filed a request for the enforcement of the above judgment , proposing that it be carried out either by means of a bank transfer or through the auctioning of the debtor ’s movable assets .

On DATE ORG ordered the restructuring of the first , second and fourth applicants’ debtors , as part of the privatisation process . On DATE this privatisation was stayed , but on DATE it resumed .

As of DATE , the first and second applicants’ debtor was still predominantly socially - owned , directly or indirectly through other companies , whilst the fourth applicant ’s debtor was itself solely owned by DATE applicants’ debtor . The third applicant ’s debtor , however , having been privatised , was predominantly comprised of private capital .

On DATE and CARDINAL DATE , respectively , the applicants’ lawyer sent CARDINAL separate letters to ORG , stating , inter alia , that the companies at issue :

i. have , for DATE , deliberately avoided doing business through their official bank accounts ;

ii . have instead , apparently , engaged in cash transactions or even the use of other , “ secret ” , bank accounts unknown to the tax authorities ; and

iii . that , as a result , judicial enforcement by means of a bank account transfer had been rendered impossible .

The applicants’ lawyer concluded by requesting that urgent action be taken to secure the enforcement of the final judgments in question .

On DATE ORG responded that the above letters had been duly considered but that , in view of the confidential nature of the information obtained , no details could be disclosed .

On DATE the ORG lawyer sent another complaint to ORG , stating that the situation concerning the said bank accounts had remained unchanged .

Articles DATE set out the details as regards the restructuring of companies about to be privatised . This restructuring , however , is optional and a company may be sold without having been restructured if ORG so decides .

DATE provides that a company whose restructuring commenced prior to DATE , as part of an ongoing privatisation , can not be subjected to an enforcement procedure within DATE of that date . If the decision to restructure a company , however , was not adopted prior to DATE , the relevant time limit shall be DATE as of the subsequent adoption of a decision to this effect . Any ongoing enforcement proceedings shall be stayed while new enforcement proceedings shall not be instituted until the expiry of the above time - limits .

Articles CARDINAL and CARDINAL provide that the privatisation of all remaining socially - owned capital shall commence by DATE . Should this prove impossible , the companies in question shall be liquidated .

Article CARDINAL provides , inter alia , that a company undergoing restructuring , as part of the privatisation process , can not be subjected to an enforcement procedure until the conclusion of this process . Any ongoing enforcement proceedings shall be stayed .

These provisions entered into force in DATE .

Other relevant domestic provisions are set out in the cases of NORP GPE and Others v. GPE and ORG GPE ( nos . CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL , § § CARDINAL , DATE , as well as no . CARDINAL , § § CARDINAL and DATE , CARDINAL DATE , respectively ) .


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

NORP The applicant was represented by Mr PERSON of ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

NORP The applicant was brought up by his mother , who is of NORP origin and speaks little LANGUAGE . He was DATE at the time of the events in question .

DATE the applicant was a registered pupil at FAC , a ORG secondary school in GPE , GPE . The CARDINAL - CARDINAL academic year was his final year of compulsory schooling . In DATE he was due to take ORG examinations in CARDINAL subjects as well as a GNVQ ( vocational qualification ) in ORG .

The applicant did not have a history of being a disruptive pupil . However , on DATE he assaulted the school ’s canteen manager . He was seen by her to be pushing his way into the canteen queue and , when she told him to stop , he abused her verbally . Despite attempts by several teachers to calm him down , the applicant knocked a sandwich out of the canteen manager ’s hand and then grabbed her wrist and twisted it . The applicant caused injury to her wrist which required hospital treatment and CARDINAL GPE sick leave from work .

The school authorities took the view that the level of violence used and threatened by the applicant was extremely intimidating . The Headteacher decided that the applicant should be permanently excluded from the school . This decision was approved by ORG and he was so notified in a letter dated DATE .

The applicant exercised his statutory right of appeal to ORG ( ORG ) . The hearing took place on DATE . The ORG considered written and oral evidence from the applicant and other witnesses . It did not , however , hear evidence concerning the views of the teaching staff and their unions as to whether it would be possible to reintegrate the applicant .

The ORG delivered its decision by a letter to the applicant ’s mother dated DATE , as follows :

“ After careful consideration of your representations both oral and written and those of ORG and in the light of the available evidence , the Panel concluded to direct [ the applicant ’s ] reinstatement , with a view to a staggered reinstatement , with [ the applicant ] back in full - time education by CARDINAL term . You are advised to contact the Headteacher of ORG to arrange an appointment .

In coming to their decision , the ORG accepted that :

▪ [ The applicant ] did what he was alleged to have done and this was supported by the evidence presented both by the school and [ his own ] admission .

The ORG then took into consideration the guidance from the Secretary of ORG before coming to their decision . In this instance , the panel felt there were exceptional circumstances and after considering all the relevant factors , that permanent exclusion was not the appropriate sanction . The reasons for the panel decision were as follows :

▪ [ The applicant ] previously had a relatively unblemished record ;

▪ [ The applicant ] behaved “ out of character ” and possible medical factors could have contributed to his behaviour ;

▪ Took into consideration the stage in [ the applicant ’s ] education .

The ORG then considered the broader interests of other pupils and staff in school , as well as those of [ the applicant ] and ... though it was reasonable of the school to consider permanent exclusion , it was felt that long term fixed exclusion would have been the most appropriate sanction in this instance .

In conclusion , the ORG endorsed your suggestion that [ the applicant ] be provided with a packed lunch in future . ”

The Headteacher did not agree with the ORG ’s decision but he informed the staff at the school that he was under a legal duty to provide the applicant with an education . On DATE the representative at the school of ORG ) , of which the majority of the teaching staff were members , sent an e - mail to all members of staff at the school informing them that the ORG members had decided to call for “ a ballot not to teach or supervise the student who was reinstated on appeal after assaulting a member of staff ” . The Headteacher was also informed by the other ORG union represented at the school that its members would vote in favour of industrial action if asked to teach the applicant . The Headteacher therefore formed the view that if he directed the teaching staff to accept the applicant back into the class - rooms they would vote in favour of industrial action and refuse to teach him . He therefore informed the applicant ’s mother that , if the applicant wanted to continue to be educated at the school , this would take place in a room on his own . In the alternative , he could attend classes in ORG and LANGUAGE at a local further education college , with a personal tutor to teach him ORG .

Initially , the offer of college provision was refused because the applicant wished to continue to be educated at his school . The family enlisted the help of a local councillor to seek to persuade the school to take him back , but the representatives of the ORG refused to talk to him .

Finally , the applicant decided to accept the limited tuition being offered at the further education college , because he felt that being taught in isolation at the school , without being allowed any contact with his friends , would make him “ feel like a criminal ” . At the college he received CARDINAL ORG tuition DATE in Maths and English Literature . Until DATE he did not receive any teaching in any of his other ORG or PERSON subjects , nor in any of the other national curriculum subjects such as physical education , other than DATE of coaching in ORG and DATE in ORG provided by external tutors who taught him in isolation in a room at the school .

NORP In DATE the applicant issued proceedings for judicial review of the school ’s decision . On DATE representatives of the ORG wrote to PERSON at GPE indicating that they intended to hold a ballot of their members at the school . On DATE the Headteacher and Chairman of ORG were informed that , following a ballot , the ORG would commence industrial action on DATE . This would initially take the form of a refusal to teach , supervise or otherwise work with the applicant , but could escalate to a strike if disciplinary measures were taken against an ORG member as a result .

The High Court gave judgment on DATE . The applicant had argued , inter alia , that the offer to teach him in isolation did not amount to “ reinstatement ” ; that the Headteacher had been too greatly influenced by the threat of industrial action ; and that the school owed him a statutory duty , which it had not met , to provide him with tuition in the national curriculum subjects in which he had planned to take GCSEs . PERSON held , inter alia , that the position taken by the ORG had to be respected , unless it could be shown to be a sham , and that the “ reinstatement ” required by the ORG ’s decision did not have to include reinstatement to the class - room as before . During the course of the proceedings the school had given an undertaking to use its best endeavours , without using ORG teachers , to supply the applicant with tuition in his other ORG subjects , and in the light of this undertaking the judge did not consider it necessary to decide whether the applicant was owed a statutory duty . He was “ unpersuaded that the reaction of the Headteacher to the industrial discontent among the majority of the teaching staff was unreasonable or disproportionate ” and concluded :

“ In my judgment the maintenance of the regime must be regularly tested , and its reasonableness and the reasonableness of its continuation depend upon the facts . On the evidence before me the imposition of the regime was reasonable in all the circumstances . It might well have been that there would have come a time when it became unreasonable to continue that regime . However , it is quite plain that the industrial difficulties which the school faces preventing complete reinstatement continue as of now . I conclude that the imposition of the regime was not unlawful , and that , accompanied by the without prejudice undertaking , the continuation remains lawful . ”

Following this judgment and the undertaking given during the proceedings , from DATE to CARDINAL DATE the applicant received TIME tuition DATE at the school , using external tutors , in ORG studies , LANGUAGE Literature and ORG . The applicant sat ORG and GNVQ examinations in DATE . He failed to achieve a grade C or higher in any of them and was not , therefore , able to continue to study for A Levels as he had hoped . In addition to the academic consequences , the applicant had no contact with his former teachers or fellow pupils at the school for the entirety of DATE . He was not permitted to take part in any extra - curricular activities or to mix with pupils during breaks .

The applicant appealed to ORG . His appeal was dismissed by a judgment dated CARDINAL DATE ( NORP v. ORG and Another [ DATE ] EWCA Civ CARDINAL ) . ORG commenced by observing :

“ CARDINAL . This is a troubling case , as any school exclusion case is likely to be . There are particular factors here which give rise to concern . The applicant ... has been brought up by his mother alone and she speaks little LANGUAGE . He has clearly had a number of hurdles to overcome . He is now in DATE , leading to ORG exams DATE . He is currently in course of taking , as I understand it , CARDINAL ORG subjects . He has generally had a good record . On any view , it is tragic that his education has been disrupted at this critical period as a result of what everyone agrees was a CARDINAL - off and uncharacteristic incident .

NORP However , the function of this court is very limited and is concerned simply with any legal defects in the school ’s response to the problem . ... ”

He continued by finding that the case could not be distinguished from ORG ( see Relevant domestic law , below ) . In that case ORG held that the term “ reinstate ” in the applicable legislation connoted restoration of the legal relationship between the pupil and the school community . Once the pupil had been reinstated , the management of his further educational regime had to be consistent with his status as a pupil of the school and was a question of reasonableness and proportionality on the facts of each case . He observed that ORG in ORG had made clear that the threat of industrial action was a relevant matter which the Headteacher was entitled to take into account and he concluded that :

“ Short of perversity in response to that threat , I see no basis on which it can be said to give rise to an error of law ” .

He considered that the question whether the school owed the applicant a duty under LAW CARDINAL to provide tuition as required by the national curriculum was “ potentially important and ... far from straightforward ” . However , he held that PERSON , in the exercise of his discretion , had been entitled to take the view that it was better to accept the undertaking offered by the school as being the most practical way forward :

“ That being the case , it would be wrong for this court to interfere unless the judge ’s approach was outside the bounds of his discretion . Although other judges might have taken a different view , I can not see error of principle in his approach ” .

On CARDINAL DATE ORG refused the applicant leave to appeal to ORG .

LAW ( section CARDINAL ) and the Education ( LAW ) ( ORG ) ( England ) DATE ( “ LAW ” ) regulation CARDINAL ) provide that ORG must set up independent appeal panels ( “ IAPs ) to enable the parents of children permanently excluded from maintained schools to appeal against that exclusion .

Pursuant to regulation CARDINAL(CARDINAL ) of LAW , following an appeal , the ORG may : ( a ) uphold the exclusion ; ( b ) direct that the pupil is to be reinstated ( either immediately or by a date specified in the direction ) ; or ( c ) decide that because of exceptional circumstances or for other reasons it is not practical to give a direction requiring his reinstatement , but that it would otherwise have been appropriate to give such a direction .

Pursuant to regulation CARDINAL(CARDINAL ) , the decision of an ORG to reinstate a pupil is binding on the Governors of the school in question , the school ’s Headteacher and the applicable ORG .

The constitution of IAPs is set out in the Schedule of the Exclusion Regulations CARDINAL . Pursuant to paragraph CARDINAL , an ORG must have either CARDINAL members . CARDINAL member must be a lay member with no experience of managing a school . If it is a CARDINAL - member ORG , the other members must be : CARDINAL person who is , or has been in DATE , the Headteacher of a maintained school and CARDINAL person who is , or has been in DATE , the Governor of a maintained school . If the panel is made up of CARDINAL members , there are CARDINAL ORG and CARDINAL Governors on the panel as well as the lay member . The consequence is that the ORG always has a majority of members who have experience in matters of school discipline and have been , or are , involved in the management of a school .

In R v Governors of ORG [ DATE ] CARDINAL AC CARDINAL , ORG held that where an ORG ordered the “ reinstatement ” of a permanently excluded pupil , that pupil could still be regarded as “ reinstated ” where he was effectively permitted no contact with the rest of the school community for the remainder of his time at the school and was taught in isolation by a retired teacher . ORG held , by CARDINAL majority , that a school which treated a pupil in this way following an order of an ORG had complied with the order to “ reinstate ” the pupil even if it made no effort to reintegrate him . In that case , the time spent in isolation was DATE of DATE . In the L case , like the applicant ’s , the reason that the pupil in question was taught in isolation was that the teachers had threatened industrial action . Although some members of ORG were strongly critical of the teachers , the view of the majority was that , given the effect on the rest of the school of the teachers striking , it was a rational managerial decision for Headteacher and Governors to educate the pupil in question for DATE in isolation from the rest of the school .

On DATE as judgment was handed down in the L case , ORG handed down a judgment in P v ORG [ DATE ] CARDINAL AC CARDINAL . It concerned an application brought by a pupil under section CARDINAL of ORG DATE ( “ TULCRA ” ) . Pursuant to section CARDINAL , an individual who is affected by unlawful industrial action may bring a claim in ORG against the union or person that had induced others to take part in the industrial action . The claimant in the P case was a pupil whom teaching unions had refused to teach . He argued that the refusal constituted “ unlawful industrial action ” as it was not part of a “ trade dispute ” within the meaning of ORG section CARDINAL and therefore was not protected pursuant to section CARDINAL . ORG rejected the claim . It held that there was a dispute between employees and employers which related to the job the employees were required to do , and/or a dispute as to the terms and conditions on which the teachers were employed . The dispute was , ORG concluded , a “ trade dispute ” within the meaning of section CARDINAL . It was , therefore , not unlawful .

The ORG incorporates the ORG into GPE law . Section DATE ) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right , except where it is constrained to act in that way as a result of primary legislation which can not be interpreted so as to be compatible with Convention rights . Under section ORG ) , a person claiming that a public authority has acted unlawfully under section DATE ) may bring proceedings against it in the appropriate court or rely on the Convention right in any legal proceedings .

Pursuant to section CARDINAL of the HRA DATE , in relation to any act ( or proposed act ) of a public authority which the court finds is ( or would be ) unlawful , it may grant such relief or remedy , or make such order , within its powers as it considers just and appropriate .


Violation of Art. 8;Not necessary to examine Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

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

The applicant has a son , ORG , born out of wedlock in DATE . Under NORP law she has sole custody of her son .

The applicant had lived with her son and his father , GPE , until DATE , when GPE fled GPE on account of several sets of criminal proceedings instituted against him . From then on GPE lived in GPE , whereas the applicant intended to continue living with her son in GPE . They visited GPE on several occasions .

At some time in DATE , during CARDINAL of their visits to GPE , GPE did not allow the applicant to take ORG back to GPE . In DATE the applicant visited her son several times in GPE and requested GPE to allow her to take him back , but in vain .

On DATE the applicant managed to take ORG back to GPE . However , on DATE FAC kidnapped FAC in the open street in GPE and took him back to GPE .

Meanwhile , on an application by the applicant , on DATE ORG ( ORG ) issued a decision confirming that ORG ’s decision to keep the child in GPE had been “ wrongful ” within the meaning of LAW ( “ LAW ) . Following an appeal by GPE , on DATE ORG ( GPE ) upheld the first - instance decision .

Furthermore , on DATE , relying on LAW , the applicant requested ORG ( ORG ) as the NORP central authority to return her son . The Chief Federal Prosecutor immediately contacted ORG ( ORG zdravstva i socijalne skrbi ) as the NORP central authority . In letters of DATE and DATE the Chief ORG informed the applicant that he had not received any reply to his request from the NORP central authority .

In GPE , on an unspecified date in DATE , ORG instructed ORG ( centar za socijalnu skrb ) to contact GPE and order him to return ORG to the applicant . PERSON refused to do so .

Thus , on DATE ORG instituted proceedings for the child ’s return in ORG ( PERSON GPE ) .

The court held CARDINAL hearings and took testimonies from the applicant , GPE and a representative of ORG .

On CARDINAL DATE ORG ordered that ORG be returned to the applicant . On appeal , on DATE ORG ( Županijski sud u GPE ) quashed that decision and remitted the case to the first - instance court , ordering it to determine the exact time of ORG ’s alleged abduction and whether the conditions set out in LAW and CARDINAL of LAW had been met .

In the resumed proceedings ORG held a hearing on DATE , when it heard evidence from an expert in clinical psychology . The expert stated that there was no threat that , by being returned to GPE , ORG would be exposed to any harm .

On DATE ORG again ordered that ORG be returned to the applicant . On DATE ORG dismissed an appeal by GPE as being ill - founded .

On an application by the applicant , on CARDINAL DATE ORG issued an enforcement order ( rješenje o ovrsi ) , ordering immediate enforcement of the above decision by a court bailiff assisted by the police .

On DATE a court bailiff attempted to enforce the above decision . He went to ORG house , but ORG was not there and PERSON refused to say where he was .

NORP In letters of DATE and DATE the court requested the local police authorities to provide information on the whereabouts of the child . The police informed the court that ORG was in PERSON . Subsequently , ORG forwarded the enforcement order to ORG ( PERSON ) . On DATE the ORG informed ORG that ORG was not residing in that area .

On DATE ORG again requested the local police to locate FAC and ORG

On DATE ORG imposed a sanction of CARDINAL days’ detention on GPE for failing to comply with the court ’s order of CARDINAL DATE . He was also ordered to disclose where ORG was . On appeal , on DATE the ORG upheld the first - instance decision , but reduced the sanction to CARDINAL days’ detention .

On DATE ORG again imposed a sanction of CARDINAL days’ detention on GPE

On DATE the authorities made another attempt to enforce ORG order of CARDINAL DATE . CARDINAL police officers , a court bailiff and the applicant ’s lawyer came to Ž.P. ’s home and requested him to hand over FAC refused to do so and used force in fleeing the premises along with his son .

NORP The GPE police subsequently filed a criminal complaint against GPE alleging the criminal offence of making threats . On DATE Ž.P. was found and taken into custody . Having complained about some health problems , he was transferred to a hospital , from which he managed to escape .

The Government submitted that on DATE the applicant sought postponement of the enforcement for DATE , considering that it might be possible to reach a settlement with GPE concerning the return of ORG

ORG held a hearing on DATE , at which the lawyer representing the applicant , a certain PERSON , stated that ORG had been returned to the applicant . At the same time , GPE ’s lawyer stated that his client had covered the full cost of the proceedings . In accordance with the parties’ statements , on DATE the court delivered a decision declaring that the enforcement proceedings had been concluded . The applicant never appealed against that decision .

The applicant submitted that ORG ’s statement given to the court on DATE was false and did not reflect the facts . She claimed not to have known that the hearing of DATE would take place at all and not to have given any instruction to PERSON to declare that she had been reunited with ORG While it was true that she had seen her son on several occasions in DATE , she had never been alone with him , nor had he ever been returned to her custody .

The applicant submits that she has not yet been reunited with ORG , who is apparently still in GPE with GPE

The preamble of the DATE LAW on the Civil Aspects of ORG , which was ratified by GPE on DATE ( ORG , International Agreements no . CARDINAL ) , includes the following statement as to its purpose :

“ ... to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the ORG of their habitual residence ... ”

The relevant provisions of LAW read as follows :

“ The removal or the retention of a child is to be considered wrongful where

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or the retention ; and

( b ) at the time of the removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention . ... ”

“ ORG shall co - operate with each other and promote co - operation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW . ”

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay ... ”

“ Where a child has been wrongfully removed or retained in terms of LAW of the proceedings before the judicial ... authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith . ”

“ Notwithstanding the provisions of DATE , the judicial ... authority of the requested ORG is not bound to order the return of the child if ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation . ”

The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under subsection CARDINAL of this section is accepted , the Constitutional Court shall determine the time within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under subsection CARDINAL of this section , the Constitutional Court shall award appropriate compensation to the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment . ”

Under the case - law of ORG as applied until DATE , constitutional complaints lodged under section DATE in the context of enforcement proceedings were to be declared inadmissible in cases where an enforcement order had already been issued . In decision no . U - IIIA/CARDINAL/CARDINAL of CARDINAL DATE ORG interpreted section CARDINAL of LAW as follows :

“ The Constitutional Court shall institute proceedings pursuant to a constitutional complaint lodged under section CARDINAL of LAW [ on FAC ] in respect of the length of proceedings only in cases where the court has not determined within a reasonable time the merits of the rights and obligations of the complainant , that is , where it has failed to deliver a decision on the merits within a reasonable time .

In the present case the constitutional complaint has been lodged on account of the failure to enforce a final decision by which the party ’s rights and obligations had already been determined .

Taking into consideration the provisions of LAW cited above ... , ORG is of the opinion that in this case the conditions for applicability of section CARDINAL were not met . ”

In decision no . U - IIIA/CARDINAL/CARDINAL of CARDINAL DATE the ORG provided further interpretation of CARDINAL of LAW :

“ Taking into consideration the provisions of LAW cited above and the fact that the constitutional complaint was not lodged on account of a failure to deliver a decision within a reasonable time but rather because enforcement did not take place , ORG is of the opinion that in this case the conditions for applicability of CARDINAL were not met . ”

In decision no . U - IIIA/CARDINAL/CARDINAL of DATE ORG changed its practice , accepting a complainant ’s constitutional complaint and awarding him compensation as well as ordering the competent court to conclude the enforcement proceedings within DATE from its decision .


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

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

He is the proprietor , editor - in - chief and journalist of a local DATE Komu i Czemu , published in the PERSON and ORG .

At DATE PERSON . , a local businessman providing services to a district hospital , visited PERSON , the district mayor ( starosta ) , to complain about GPE , the director of the hospital . It appears that the hospital owed some money to the businessman . PERSON . recorded the conversation and the following day passed it on to the applicant .

On DATE the applicant wrote to the district mayor and asked him to explain why he had delayed informing the prosecution authorities about the alleged corruption at the district hospital . In reaction to the letter , the district mayor summoned GPE to respond to those allegations . He also sent a copy of the applicant ’s letter to the prosecution service asking for the matter to be examined . In his letter to the prosecution service , the district mayor stated that the applicant ’s allegations were insinuations aimed at undermining the public trust in him . A copy of this letter was sent to the applicant .

On DATE PERSON . notified a local member of parliament ( “ MP ” ) that the director of the hospital had received bribes from PERSON . He stated that his recent conversation with the district mayor indicated that the latter had some knowledge about the bribe - taking . On DATE the MP relayed this information to the Minister of ORG and Administration . Subsequently , the information was transmitted to ORG and then , in turn , to ORG .

In the article “ PERSON took bribes ” published in issue no . CARDINAL ( DATE ) , the applicant stated that “ the hospital director was being protected by the district mayor who knew that the subordinate director had taken bribes ” . In the article “ Corruption of Madame Director ” published in issue no . CARDINAL ( DATE ) the applicant wrote that the district mayor had known that GPE was corrupt but had not notified the prosecution authorities . The same allegation was made in the article published in issue no . DATE ) . In the article “ PERSON prosecutor examines PERSON [ the district mayor ] ” published in issue no . CARDINAL the applicant stated that “ the district mayor is obviously fibbing , because he received information that the director took [ bribes ] from CARDINAL sources ” .

On an unspecified date in DATE the district mayor lodged a private bill of indictment against the applicant with ORG . He accused the applicant of defamation committed through the mass media under LAW .

NORP The bill of indictment related to CARDINAL separate charges . The first concerned an article entitled “ Hey those district roads ” published in issue no . DATE in which the applicant had discussed mismanagement of road works in the district . The second charge concerned CARDINAL articles published by the DATE in DATE and DATE in which the applicant alleged that the district mayor had known that GPE was corrupt but had failed to inform the prosecution service . The district mayor claimed that the impugned articles lowered his standing in the eyes of the public and undermined the public confidence necessary for the discharge of his duties .

On DATE the Piotrków Trybunalski ORG gave judgment . It acquitted the applicant of the first charge and convicted him of defamation committed through the mass media in respect of the second charge . ORG held that the applicant had wrongly alleged in his articles that the district mayor had known that GPE accepted bribes but had not informed the police about it , despite having been under a duty to do so . Thus , the applicant had lowered PERSON ’s public standing and undermined the public confidence necessary for the discharge of his duties . ORG sentenced the applicant to a fine of MONEY ( ORG ; MONEY ( ORG ) ) . It further ordered him to pay the private prosecutor ’s costs ( ORG CARDINAL ; LAW ) and the costs of ORG ( ORG MONEY ; ORG CARDINAL ) .

When examining the first charge against the applicant , the trial court observed that the contours of the offence of defamation specified in LAW were delimited on one hand by the protection of reputation and dignity of a person and , on the other , by socalled legitimate criticism ( dozwolona krytyka ) which derived from LAW . It noted that in accordance with the GPE case - law political or public activity inevitably resulted in subjecting officials to the judgment of the public opinion . Persons holding important offices were thus required to show a higher degree of tolerance to criticism .

In respect of the second charge , the trial court heard evidence from the applicant , the district mayor , PERSON . , PERSON and PERSON ( spokesperson of the district mayor ) . It further heard the recording of the conversation between the district mayor and PERSON .

ORG observed that the applicant and the district mayor had once been good colleagues ; however their relations had deteriorated since PERSON ’s election as district mayor in DATE . From then onwards the applicant ’s newspaper had begun publishing articles virulently criticising the district mayor and his staff .

The court established that the local businessman PERSON . , who provided services to the local hospital and was dissatisfied with his cooperation with the hospital director ( GPE ) , had informed the district mayor that GPE had been taking bribes . PERSON . had recorded his conversation with the district mayor . Subsequently , he had provided the applicant with the content of the recording and informed him that he had given bribes to GPE

The court found that the applicant had alleged in a series of articles published DATE and DATE that the district mayor had covered up the corruption affair , without having verified the information received from PERSON . and disregarding the actual content of the recording .

The court further established that the applicant , when publishing a series of articles about the alleged corruption affair , had relied exclusively on the recorded conversation between the district mayor and PERSON . It noted that neither the recording nor the statements of PERSON . had confirmed the allegation that the district mayor had known about bribe - taking in the hospital , and thus the applicant ’s assertions had been untrue . Even if the district mayor had some misgivings about the management of the hospital it could not be inferred from that that he had specific knowledge about the corruption . The trial court noted that allegations of covering - up corruption were of immense gravity and that the applicant had published them without having them verified . It underlined that shortly after having received the applicant ’s letter of DATE the district mayor referred the matter of corruption allegations to the prosecution service . In the court ’s view , the applicant had flagrantly breached the journalistic principles of diligence and objectivity . The court further noted that in none of the impugned articles had the applicant referred to the uncertain nature of the presented information . The applicant , as an experienced journalist , should have been particularly cautious with the information received from the disgruntled businessman as he had been aware of a sharp conflict between him and the hospital management . However , he had failed to display particular diligence and had exploited that information for sensational purposes in making the district mayor and his alleged cover - up of the corruption the central part of his articles . The trial court referred to section CARDINAL of LAW which obliged journalists to display particular diligence in gathering and using the information , and , in particular , to verify the truthfulness of obtained information .

ORG held , inter alia , as follows :

“ There is no doubt that by imparting information clearly presupposing that PERSON [ the district mayor ] had allegedly covered up the corruption affair [ the applicant ] not only did not demonstrate the requisite diligence but in general did not take the trouble to confirm and verify in any way the information he had received . Without having regard to the gravity of the allegations made against PERSON , the applicant hastily used the words of his informant for the purposes of settling his scores with GPE ... The articles discrediting PERSON did not serve anything but the personal satisfaction of [ the applicant ] , and the concern for the respect of law in the local hospital appeared to be of marginal importance .

Having read the series of the above - mentioned articles it is difficult to escape the conclusion that the attention of the applicant was focused on damaging the reputation of the district mayor , while the hospital director PERSON was put on the sidelines . ... Besides , these actions constitute not the only but certainly the most far - reaching element of the personal war with PERSON waged in the weekly PERSON i czemu .

Defamation committed with the knowledge that information and opinions concerning the behaviour or characteristics of another person are false never serve to defend a justifiable public interest .

Such actions do not benefit from the protection granted to freedom of expression and the right to criticise under LAW of LAW or LAW .

The real effect of the applicant ’s publication can not be assessed in isolation from the public office held by PERSON It is obvious that the office of the district mayor must be based on public trust and respect . Imparting by means of mass communication information about the alleged participation of the district mayor in the cover - up of a corruption scandal does not enhance his popularity . It risks not only the loss of the office , but also lowers his public standing creating an atmosphere of scandal and suspicion . ... By attributing to GPE behaviour constituting an offence and doing so by means of mass communication , PERSON made out all the statutory features of the offence specified in LAW . ”

NORP The trial court noted that the applicant published CARDINAL separate articles containing defamatory statements in respect of the district mayor within DATE . Those statements fell outside the limits of permissible criticism referred to in LAW since they had been untrue .

The trial court considered that the degree of the applicant ’s guilt was significant and for that reason the proceedings could not have been conditionally discontinued . ’s guilt and his financial standing which was beyond average . With regard to the latter , it had regard to the profits from the ownership of CARDINAL of the most widely read newspapers in the region . As regards other relevant factors , the court noted that the applicant had deliberately infringed the district mayor ’s reputation and had been motivated by personal animosity . At variance with the professional and deontological standards , he failed to respect the requirement of particular diligence when using information at his disposal . The trial court took further into account that the applicant had not in any way recognised that he had acted inappropriately .

The applicant appealed . He contested the factual findings of the first - instance court , in particular that the recorded conversation between PERSON . and the district mayor had constituted the only source of information about the bribe - taking . He further alleged that the first - instance court had erroneously assessed the evidence .

On DATE the Piotrków Trybunalski Regional Court upheld the first - instance judgment and found the applicant ’s appeal manifestly illfounded . It ordered him to pay costs of ORG CARDINAL,CARDINAL for the appeal proceedings .

ORG endorsed the lower court ’s findings . It noted that PERSON . had been in conflict with the director of the hospital which was related to unpaid invoices of his company . In the past he had frequently complained to the district mayor about the director of the hospital .

ORG held that the recorded conversation and information passed orally by PERSON . to the applicant had constituted the only basis of the allegations made against the district mayor . According to the court , there was not a single statement of the district mayor in that conversation indicating that he had been aware of the alleged corruption of the director of the hospital . The allegations made by the applicant had been based on isolated parts of the conversation which were taken out of context . ORG also noted that the applicant had not sought comments from GPE At the time of the publication the applicant had not disposed of any information corroborating the alleged cover - up of the corruption . Nor had such information been disclosed during the trial . ORG , having regard to the evidence heard by the trial court , found that the district mayor had learnt about the alleged corruption in the local hospital from his conversation with PERSON . at DATE and then from the applicant ’s letter of DATE . It accordingly confirmed that the allegations raised by the applicant in his articles had proved to be untrue .

Referring to the case - law of ORG , it recalled that the limits of acceptable criticism were wider with regard to politicians than with regard to private individuals . However , it did not follow from that that the insulting of a politician could go unpunished .

The judgment was served on the applicant on DATE .

Article CARDINAL provides as follows :

“ GPE shall ensure freedom of the press and other means of social communication . ”

LAW , which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms ( the principle of proportionality ) , provides :

“ Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic ORG for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”

LAW guarantees freedom of expression . It states , in so far as relevant :

“ Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information . ”

Article CARDINAL provides in so far as relevant :

“ § CARDINAL . Anyone who imputes to another person , a group of persons , an institution , a legal person or an organisation without legal personality , such behaviour or characteristics as may lower this person , group or entity in public opinion or undermine public confidence in their capacity necessary for a given position , occupation or type of activity , shall be liable to a fine , a restriction of liberty or imprisonment not exceeding one year .

§ CARDINAL . NORP If the perpetrator commits the act described in paragraph CARDINAL through the mass media he shall be liable to a fine , a restriction of liberty or imprisonment not exceeding two years . ”

Article CARDINAL provides as follows :

“ § CARDINAL . The offence specified in LAW is not committed , if the allegation made in public is true .

§ CARDINAL . Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article CARDINAL § § CARDINAL or CARDINAL ; if the allegation regards private or family life evidence of truthfulness shall be admitted only when it serves to prevent a danger to someone ’s life or to prevent the demoralisation of a minor . ”

On DATE ORG , ruling on a legal question referred to it by ORG , declared LAW compatible with Articles DATE read in conjunction with Article CARDINAL § CARDINAL .

ORG found that in some circumstances the protection of rights and freedoms like dignity , good name and privacy might prevail over the protection of freedom of expression . The ORG further found that there was no basis to assume that protection of personal rights through the civil law alone would be equally efficient as criminal law . Protection of personal rights by means of criminal law did not by itself infringe the relevant provisions of LAW .


The applicant , PERSON , is a NORP citizen , born in DATE , and living in GPE . The respondent Government are represented by their agent PERSON .

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

According to the applicant , he lodged a constitutional complaint on DATE against ORG ( PERSON ) judgment of DATE , upholding the first instance judgment by which the applicant had been convicted of war crimes against the civilian population . At that time he was serving his sentence in the PERSON prison . The applicant complained about the fairness of the proceedings alleging that the lower courts erroneously assessed the facts of the case and that the rules of procedure were violated .

According to the Government , the applicant ’s constitutional complaint was lodged on DATE .

ORG ) did not acknowledge receipt of the applicant ’s complaint .

On DATE and DATE the applicant asked ORG to speed up the proceedings . His letters were sent from the PERSON prison and the address of the PERSON prison was indicated on the letters .

By decree of the President of GPE of CARDINAL DATE , the applicant was amnestied from serving the rest of his sentence and released from prison .

As , meanwhile , due to his conviction for war crimes , the applicant and his family had lost a specially protected tenancy on a flat in GPE they previously occupied , they moved to the village of GPE , GPE .

According to the applicant , he notified the PERSON prison authorities of his new address in PERSON , as well as of his telephone number there .

According to the ORG the applicant failed to notify either ORG or the PERSON prison authorities about his new address in PERSON . In support of this fact the Government submit a copy of the applicant ’s prisoner ’s card where the only indicated address is the one in PERSON and no further changes were entered .

It is undisputed between the parties that the applicant did not notify ORG of his new address .

The Government submit further that on DATE ORG requested the applicant to submit a copy of the contested judgment . The letter was sent to the PERSON prison . However , the PERSON prison authorities returned the letter stating that the applicant had been released from prison and was living at the address in PERSON .

According to the Government the Constitutional Court ’s above request was sent to the applicant at the PERSON address on DATE . It was , however , returned to the court stating that the applicant was no longer living there . On DATE another unsuccessful attempt was made to deliver ORG letter to the applicant at the same address .

On DATE the court placed the letter to the applicant on its public notice - board , where it stayed posted until DATE .

On DATE ORG terminated the proceedings concerning the applicant ’s constitutional complaint . It stated that the applicant had failed to submit a copy of the contested judgment and that the letters subsequently sent to the applicant were returned to the ORG stating that the applicant did not live at the address indicated . The court deemed that the applicant had withdrawn his complaint .

On DATE the applicant asked ORG once more to speed up the proceedings concerning his constitutional complaint , indicating his address in GPE .

On DATE ORG sent a letter to the applicant informing him that the proceedings had been terminated .

On DATE the applicant lodged a request to have his case restored , although in respect of the proceedings before the ORG such possibility does not exist under NORP law . On DATE he asked ORG to reply to his request . He has received no answer .

The relevant provisions of the Rules of the Constitutional Court ( PERSON Gazette CARDINAL/CARDINAL ) provide as follows :

Section CARDINAL provides that when a party ’s written submissions to the court do not contain the information the court needs it must instruct the party concerned to submit such information within a certain time . If the party fails to comply with the court ’s instructions , the court will deem that party to have withdrawn its submissions .

Section CARDINAL provides that when it is not possible to serve letters or decisions of the court on a party , they shall be placed on the court ’s public notice - board .

Section CARDINAL § CARDINAL provides that when lodging a constitutional complaint a party must submit a copy of the contested decision .

The relevant parts of the DATE LAW on ORG ( Ustavni zakon o PERSON ) provides as follows :

“ By the decision granting a claim , the impugned decision that violated a constitutional right is quashed and the case is remitted to the competent body for retrial . ”


Remainder inadmissible;No violation of Art. 6-1;Violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

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

On DATE the applicant was arrested in connection with a series of gang robberies that had taken place from DATE in a number of GPE massage parlours .

On DATE the authorities opened a criminal case and drew up a record of the applicant ’s arrest .

On DATE the applicant was charged with robbery and on DATE he was remanded in detention by the decision of a prosecutor .

On an unspecified date in DATE and later , in DATE , the applicant asked to be tried by a jury . Both his requests were dismissed .

On DATE the applicant was newly charged with banditry and organised robbery .

On DATE the charges against the applicant were finalised , and now also included charges of organisation and management of a criminal gang , CARDINAL organised robberies with further aggravating factors , and illegal carrying and storage of arms .

On DATE the pre - trial investigation was completed , following which the applicant and his counsel spent until DATE studying the case file .

On DATE the case was referred to GPE ( “ the ORG ” ) .

On DATE ORG fixed a preliminary hearing for DATE . On that date the hearing was postponed to CARDINAL DATE , according to the applicant , on account of the prosecutor ’s failure to appear .

At the hearing of DATE the applicant filed a number of requests for the striking - out of some of the evidence as inadmissible , the summoning of witnesses , the dropping of the banditry charge , the transfer of the case to a district court , and the selection of a non - custodial measure of restraint . These requests were dismissed at the next hearing on DATE , which was further adjourned following a decision to summon the victims and witnesses .

At the hearings that took place on DATE , DATE , CARDINAL DATE , CARDINAL DATE and DATE the trial court questioned the victims and witnesses in the case .

The next QUANTITY hearings did not take place on account of the unavailability or illness of counsel .

The hearings continued on DATE , CARDINAL , DATE and DATE , andCARDINAL and DATE .

By a judgment of DATE ORG convicted the applicant of aggravated robbery and sentenced him to CARDINAL years’ imprisonment .

The applicant appealed and his grounds of appeal and CARDINAL supplements to it were returned to him for insufficient reasoning . The new grounds of appeal and a request for the extension of the time - limit for appeal were also rejected for the same reasons on DATE . That decision was overturned on appeal by ORG of GPE on DATE , when the time - limit in question was extended .

On DATE ORG of GPE modified the judgment in the part concerning the legal classification of the criminal acts and upheld the remainder of the conviction .

On DATE the prosecutor of GPE authorised the applicant ’s pre - trial detention in accordance with the old LAW . This decision was upheld in a final decision of ORG of DATE .

On an unspecified date the prosecutor extended the applicant ’s detention until DATE .

On DATE the Kuybyshevskiy ORG of GPE , citing the gravity of the charges against the applicant , extended his detention until DATE . On DATE ORG upheld the extension order on appeal . However , on DATE the Presidium of ORG quashed the decisions of the lower courts by way of supervisory review on the ground that the applicant had not appeared at the hearing , and ordered the re - examination of his detention in respect of the above - mentioned period .

On DATE the GPE ORG discontinued the examination of the request to extend the applicant ’s detention since on DATE the applicant had been convicted . On DATE ORG set aside this decision on appeal and remitted the matter for fresh consideration . On DATE ORG approved the extension of the applicant ’s detention from CARDINAL DATE to CARDINAL DATE and on DATE ORG upheld that decision .

On DATE ORG held that the measure of restraint applied to the applicant should remain unchanged . A copy of that decision was made available to the applicant on DATE , that is , after the expiry of the statutory time - limit for lodging an appeal . In DATE the applicant sought to have the time - limit for introducing his appeal extended , but on QUANTITY DATE ORG , at final instance , dismissed his request since by that time his conviction had become final .

On DATE , CARDINAL DATE , DATE and DATE ORG extended the applicant ’s detention until DATE and CARDINAL DATE , and DATE and CARDINAL DATE , respectively . On DATE , CARDINAL DATE and DATE and DATE ORG upheld the above extension orders on appeal .

On DATE the applicant submitted to the special registry office ( отдел специального учета ) of remand centre SIZO-CARDINAL of GPE and GPE a completed application form with enclosures of CARDINAL pages addressed to the ORG . On DATE the mailing was registered by the special registry office and handed over to the dispatch office . However , the mailing was never dispatched .

The applicant brought this issue before the prosecutor ’s office of GPE on DATE . Following an inquiry , the town prosecutor established that the mailing had never been dispatched and had subsequently been lost . The prosecutor issued a special statement addressed to the head of the SIZO-CARDINAL remand centre following which , according to the ORG , the official responsible was disciplined . The ORG further submitted that the applicant had received CARDINAL new application forms from the officials of the prison system to compensate him for the loss of his mailing .

In DATE the applicant brought proceedings against the remand centre and the federal penitentiary agency seeking compensation for non - pecuniary damage sustained as result of the loss of the mailing . By a judgment of DATE the ORG of GPE dismissed the applicant ’s claim , finding that he had not been irreversibly deprived of the opportunity to lodge a complaint with ORG . That judgment was upheld on appeal by ORG on DATE .

Federal Law no . CARDINAL-ФЗ “ On Compensation for Violation of the Right to a Trial within a Reasonable ORG or ORG of a ORG within a Reasonable Time ” of DATE ( in force from CARDINAL DATE ) provides that in the case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment , NORP citizens are entitled to seek compensation for non - pecuniary damage . Federal Law no . CARDINAL-ФЗ , adopted on DATE , introduced the pertinent changes into NORP legislation .

The transitional arrangements ( section CARDINAL of Federal Law no . CARDINAL ) provided that everyone who had a pending application before ORG concerning a complaint of the type described in the law had DATE to lodge the complaint with the domestic courts .