Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

DATE and DATE a series of robberies and burglaries took place in the ORG area . As a result of their investigations , the police considered that there were CARDINAL persons involved in the commission of these offences , including the applicant and his CARDINAL co - defendants . The police had difficulty obtaining evidence against those who they thought were responsible , and therefore decided to seek authority from the Chief Constable for GPE to carry out a covert operation ( “ LOC ” ) . The operation was to be carried out by arresting the suspects in groups , on suspicion of having committed different offences , and detaining them together in a police cell which had been specially fitted with covert audio equipment . It was hoped that the suspects would discuss the reasons for their arrest and that their ensuing conversation would be incriminating . On CARDINAL DATE the Chief Constable gave authority for ORG to take place .

The applicant and CARDINAL others were arrested on DATE . Their conversations whilst in police detention were recorded on CARDINAL and CARDINAL DATE . Further covert recordings took place on CARDINAL and DATE . The tapes formed the basis of the prosecution against the applicant .

The trial judge held a “ voir dire ” on the admissibility of the tapes . Counsel for the applicant argued that the methods of obtaining the evidence violated Articles CARDINAL , CARDINAL and DATE of the LAW , and that they should therefore be excluded under section CARDINAL or section CARDINAL of ORG PACE ) . The tapes were ruled admissible on DATE . During the course of his ruling , the trial judge rejected the defendants ' argument that the circumstances of obtaining the evidence were oppressive and the tapes should therefore be excluded under section CARDINAL of PACE . In considering section CARDINAL of the LAW , the trial judge said :

“ I find that no mala fides exist in this case and that the Chief Constable acted throughout in good faith . Although I find the decision of the Chief Constable was not in accordance with a strict interpretation of the guidelines [ ORG ] , it does not mean that his authority to use a bugging device or devices is no longer of importance . Of course it is . It is a very important factor which I have to take into account in deciding to exercise my discretion under section CARDINAL of ORG . ”

He went on to consider the points raised under the Convention , saying :

“ There is no doubt that when the defendants were arrested the main plan was that the covert operation would be put into effect , and to do this all the defendants involved should be in the cells at the same time .

However , the matter has to be taken in stages and then considered jointly . Firstly , did the police have power to arrest and was the arrest lawful ? The evidence before me was that the police had information that the accused had committed some or other of the crimes which they were investigating . They not only had the right but the duty , in my judgment , to arrest and investigate the further evidence ... As I have indicated already , the police clearly hoped that the covert bugging operation would bear fruit and if it did not the relevant defendant would have to be released . They were not arresting to create evidence but in the hope that evidence would be forthcoming .

The wording of LAW does not readily read with the NORP system and was clearly designed for taking an accused before a magistrate for investigation . But it obviously is intended to be adjusted to the specific system of member states . I find that there is no breach of LAW . ” [ CARDINALG-CARDINALD ]

On the question of LAW , the trial judge said :

“ It has to be borne in mind but requires no specific findings from me at this stage . ” [ CARDINAL ]

NORP In considering Article CARDINAL , he said :

“ A man in a police cell is entitled to privacy just as much as a man sitting at his fireside in his own home . In fact it may be argued that his right should be greater . He is after all innocent until proved guilty and he is in a vulnerable situation . Any bugging of his cell to intrude on his private conversation with another person would , prima facie , amount to an invasion of his privacy and as such a breach of LAW . However , it can perhaps be argued that whilst he is in a cell he not only does not have to say anything but if in fact he is free of guilt there is nothing that he can say . If , on the other hand , he is guilty then he does not deserve the same right of privacy as anyone else . The weight of his loss of privacy is another matter which I may take into account .

... the main point which I have to decide is as to whether or not the intrusion to privacy was ' in accordance with the law ' .

There is no statute which provides for lawful bugging of police cells nor to prohibit such an action . There are however numerous cases where it has been considered and adopted . In fairness , if bugging is done it should not be done haphazardly and certainly does not bestow on police officers unfettered power . It is to this end that , in DATE , ORG issued LAW . As I have already said , these are merely guidelines , they are certainly not statutes .

The actions of the police and the decision of the Chief Constable have to be considered together with all the other matters which have to be taken into consideration . On the basis of all those matters , I have to consider in which way I should exercise my discretion under section CARDINAL . ” [ CARDINALG-CARDINALA ]

Applicant 's counsel suggested CARDINAL safeguards that should have been afforded to the accused if the bugging was to be lawful . The trial judge said :

“ I have considered each one of these matters and have rejected them all . If they were to be required in each case , no covert listening would ever be realistic or possible . As I have indicated already , such evidence can in serious cases such as this be very important and is , in my judgment , not objectionable . [ CARDINAL ]

In the exercise of my discretion under section CARDINAL , I will allow the tapes to be used in evidence . ”

None of the defendants gave evidence at trial .

The applicant together with CARDINAL others was convicted on DATE of various robbery and firearms offences . He was sentenced to a total of DATE imprisonment .

The applicant and his CARDINAL co - defendants appealed to ORG , submitting , inter alia , that the tapes should not have been admitted in evidence .

Lord PERSON gave the judgment of ORG on DATE , dismissing the appeal . As regards the admissibility of the tapes in evidence , ORG considered the alleged violations of the Convention . It decided that there had been a violation of LAW because the surveillance was not conducted according to law . Lord PERSON said :

“ This is because of the lack of any legal structure to which the public have access authorising the infringement . If there had been such authorisation there would have been no breach . ” [ § CARDINAL ]

He went on to say :

“ The non - compliance with LAW does not , however , mean that the tape - recordings can not be relied upon as evidence .

It is the responsibility of the Government to provide remedies against this violation of LAW . However , the remedy does not have to be the exclusion of the evidence . The remedy can be the finding , which we have now made , that there has been a breach of LAW or it can be an award of compensation . ORG that to insist on the exclusion of evidence could in itself result in a greater injustice to the public than the infringement of LAW creates for the appellants . The infringement is , however , a matter which the trial judge was required to take into account when exercising his discretion under section CARDINAL of PACE . ” [ § § CARDINAL - CARDINAL ]

As regards LAW , ORG rejected the applicant 's argument on the basis that the arrests were for a lawful purpose as well as to enable the surveillance to take place , and the appellants were not therefore unlawfully deprived of their liberty . Lord PERSON said :

“ The fact that the police were operating in accordance with a strategy designed to obtain additional evidence by covert recording does not turn lawful arrests into unlawful arrests . ” [ § DATE ]

The argument that the admission of the tapes in evidence prevented the defendants from receiving a fair trial was also rejected . Lord PERSON said :

“ CARDINAL . The complaints of the appellants with regard to the decision of the judge are not to the relevance of the contents of the tape . They were clearly highly relevant . Instead it is argued that the way the evidence was obtained was contrary to PACE . The submission is not so much based on a contravention of the language of PACE . The allegation is that the surveillance took place contrary to the spirit of the relevant Codes of Practice ...

... On the evidence there were proper grounds for the arrests and ignoring the fact that the police were working to an overall plan , there was nothing improper about the purpose for which the arrests took place .

NORP .... As already indicated it was not suggested that the Chief Constable gave his authority other than in good faith . In addition whether or not the Guidelines applied to what happened in the police cells , the police considered that they were appropriately applying the Guidelines and entitled to act as they did .

Here the trial judge came to the conclusion that the Guidelines had not been complied with ... because of the requirement in the LAW for normal methods of investigation to have been tried and failed or be unlikely to succeed if tried ...

In coming to this conclusion , the trial judge may have been unduly rigorous in his approach because the object of the exercise was not to obtain evidence against CARDINAL or other of the suspects in relation to a particular offence but to obtain the evidence which would enable the police to bring to justice those who were involved in the conspiracy to carry out numerous robberies in the GPE area . Viewed in this way , it was ORG evidence that ' other policing means had failed . ' ...

We are far from satisfied that when the Guidelines were formulated , they were intended to apply to surveillance of the sort that took place here of those in custody in police cells . However , even if the Guidelines were not intended to apply to suspects already in custody , as there was no alternative guidance published , we consider that it was reasonable for the Chief Constable to apply the Guidelines by analogy , unless they conflicted with PACE . ... This was a situation where the police were responding reasonably and proportionately to a very serious threat to the safety of the public and law and order and so were entitled to seek evidence not only of individual wrongdoing but of a conspiracy to commit armed robbery . ...

More difficult is the issue whether the surveillance in cells is inappropriate treatment of those in police custody who are intended to be protected by the safeguards contained in PACE and the Codes . ... the surveillance is not directly in conflict with any provision of PACE or the Codes ...

We have no doubt that it is highly desirable that a statutory code should be established for the surveillance of the sort that occurred here ... but our conclusion is that it is not contrary to the spirit of PACE or the Codes for there to be covert taping of what is said in the cells . ”

Lord PERSON went on to adopt the conclusions reached in other cases that there was no unfairness in admitting such taped evidence where there was no suggestion that the confessions were oppressively obtained or other than wholly reliable . As regarded the complaints under the Convention , he observed :

“ Article CARDINAL for the purposes of the present case does not add anything to section CARDINAL . If there was no unfairness caused by the tapes being relied upon in evidence then there is no breach of Article CARDINAL . ” [ § CARDINAL ]

The Court of Appeal certified a question for consideration by ORG concerning use of evidence obtained by an arrest for the purpose of eavesdropping on the defendant .

On DATE , leave to appeal to ORG was refused .

Guidelines on the use of equipment in police surveillance operations ( ORG of DATE ) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices . The Guidelines were available in the library of ORG and are disclosed by ORG on application .

NORP In each case , the authorising officer had to satisfy himself that the following criteria were met : ( a ) the investigation concerned serious crime ; ( b ) normal methods of investigation must have been tried and failed , or must from the nature of things , have been unlikely to succeed if tried ; ( c ) there must have been good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism and ( d ) the use of equipment must have been operationally feasible . The authorising officer had also to satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance was commensurate with the seriousness of the offence .

Section CARDINAL of the LAW provides as material :

“ ( CARDINAL ) In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings ...

( CARDINAL ) NORP If , in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person , it is represented to the court that the confession was or may have been obtained -

( a ) by oppression of the persons who made it ; or ...

( b ) in consequence of anything said or done which was likely , in the circumstances existing at the time , to render unreliable any confession which might be made by him in consequence thereof ;

the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession ( notwithstanding that it may be true ) was not obtained as aforesaid . ”

Section CARDINAL(CARDINAL ) of the LAW provides as follows :

“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”

LAW provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy . The relevant sections relating to the authorisation of surveillance operations , including the procedures to be adopted in the authorisation process , entered into force on DATE .

Since DATE , these controls have been augmented by Part II of ORG ( “ RIPA ” ) . In particular , covert surveillance in a police cell is now governed by sections GPE ) and CARDINAL ) of RIPA . ORG also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police . These provisions were not in existence at the time of the applicant 's trial .


CASE OF REFAH PARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY

No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)

Refah was founded on DATE . It took part in a number of general and local elections , ultimately obtaining PERCENT of the votes in the general election of DATE and PERCENT of the votes in the local elections of DATE .

The results of the DATE general election made LOC largest political party in the NORP parliament with a total of CARDINAL seats in ORG ( out of CARDINAL altogether ) . On DATE Refah came to power by forming a coalition government with the centre - right True Path ( Doğru Yol ) Party , led by PERSON .

On DATE ORG at ORG applied to ORG to have PERSON dissolved on the grounds that it was a “ centre ” ( mihrak ) of activities contrary to the principles of secularism . In support of his application , he referred to the following acts and remarks by leaders and members of GPE .

– Whenever they spoke in public PERSON ’s chairman and other leaders advocated the wearing of NORP headscarves in ORG schools and buildings occupied by public administrative authorities , whereas ORG had already ruled that this infringed the principle of secularism enshrined in LAW .

– At a meeting on constitutional reform PERSON ’s chairman , ORG , had made proposals tending towards the abolition of secularism in GPE . He had suggested that the adherents of each religious movement should obey the rules of their own organisations rather than NORP law .

– On DATE ORG had asked ORG representatives in ORG to consider whether the change in the social order which the party sought would be “ peaceful or violent ” and would be achieved “ harmoniously or by bloodshed ” .

– At a seminar held in DATE in ORG had called on NORP to join GPE , saying that only his party could establish the supremacy of the Koran through a holy war ( jihad ) and that NORP should therefore make donations to GPE rather than distributing alms to third parties .

– During DATE Necmettin Erbakan had received the heads of the NORP movements at the residence reserved for the Prime Minister , thus assuring them of his support .

– Several members of GPE , including some in high office , had made speeches calling for the secular political system to be replaced by a theocratic regime . These persons had also advocated the elimination of the opponents of this policy , if necessary by force . PERSON , by refusing to open disciplinary proceedings against the members concerned and even , in certain cases , facilitating the dissemination of their speeches , had tacitly approved the views expressed .

– On DATE a Refah MP , PERSON , had said in front of journalists in the corridors of the parliament building that blood would flow if an attempt was made to close the “ PERSON - Hatip ” theological colleges , that the situation might become worse than in GPE , that he personally wanted blood to flow so that democracy could be installed in the country , that he would strike back against anyone who attacked him and that he would fight to the end for the introduction of NORP law ( sharia ) .

– The Minister of ORG , PERSON ( a Refah MP and vice - chairman of the party ) , had expressed his support for the mayor of NORP by visiting him in the prison where he had been detained pending trial after being charged with publicly vindicating international NORP terrorist groups .

ORG further observed that Refah had not opened any disciplinary proceedings against those responsible for the above - mentioned acts and remarks .

On DATE ORG submitted new evidence against FAC to ORG .

On DATE ORG representatives filed their defence submissions , in which they relied on international human - rights - protection instruments , including the Convention , pointing out that these instruments formed part of NORP written law . They further referred to the case - law of the Commission , which had expressed the opinion that LAW had been breached in the cases concerning ORG and ORG , and to the case - law of ORG on the restrictions on freedom of expression and freedom of association authorised by the second paragraphs of ORG CARDINAL and CARDINAL of the Convention . They contended that the dissolution of GPE had not been prompted by a pressing social need and was not necessary in a democratic society . Nor , according to ORG representatives , was their party ’s dissolution justified by application of the “ clear and present danger ” test laid down by ORG .

Refah ’s representatives further rejected ORG argument that the party was a “ centre ” of activities which undermined the secular nature of the Republic . They submitted that PERSON was not caught by the criteria laid down in the PERSON on the regulation of political parties for determining whether a political party constituted a “ centre of activities contrary to LAW . They observed , inter alia , that the prosecuting authorities had not issued any warning to GPE ( which had CARDINAL members ) that might have enabled it to expel any of its members whose acts had contravened the provisions of LAW .

Refah ’s representatives also set out their point of view on the concept of secularism . They asserted that the principle of secularism implied respect for all beliefs and that Refah had shown such respect in its political activity .

NORP The ORG representatives alleged that in accusing PERSON of supporting the use of force to achieve political ends and of infringing the principle of secularism the prosecuting authorities had merely cited extracts from his speeches which they had distorted and taken out of context . Moreover , these remarks were covered by Mr Erbakan ’s parliamentary immunity . They further noted that the dinner Mr Erbakan had given to senior officials of ORG and former members of the theology faculty had been presented by ORG as a reception organised for the leaders of religious movements , which had in any event been legally proscribed since DATE .

With regard to the remarks of other LOC leaders and members criticised by ORG office , ORG representatives observed that these did not constitute any criminal offence .

They asserted that none of the MPs concerned was authorised to represent Refah or held office within the party and claimed that the prosecuting authorities had not set in motion the procedure laid down in the PERSON on the regulation of political parties so as to give LOC the opportunity , if the need arose , to decide whether or not the persons concerned should continue to be members of the party ; the first time Refah ’s leadership had been informed of the remarks criticised in the case had been when they read ORG submissions . The CARDINAL MPs under attack had been expelled from the party , which had thus done what was necessary to avoid becoming a “ centre ” of illegal activities within the meaning of the PERSON on the regulation of political parties .

On DATE ORG filed his observations on the merits of the case with ORG . He submitted that according to the LAW and the case - law of the NORP courts on constitutional law issues nothing obliged GPE to tolerate the existence of political parties that sought the destruction of democracy and the rule of law . He contended that ORG , by describing itself as an army engaged in a jihad and by openly declaring its intention to replace the Republic ’s statute law by sharia , had demonstrated that its objectives were incompatible with the requirements of a democratic society . PERSON ’s aim to establish a plurality of legal systems ( in which each group would be governed by a legal system in conformity with its members’ religious beliefs ) constituted the first stage in the process designed to substitute a theocratic regime for the Republic .

In their observations on the merits of the case ORG representatives again argued that the dissolution of their party could not be grounded on any of the restrictions permitted by the second paragraph of LAW . They went on to say that LAW was not applicable in the case , as Refah had nothing in common with political parties which sought to instal a totalitarian regime . Furthermore , the plurality of legal systems which it proposed was actually intended to promote the freedom to enter into contracts and the freedom to choose which court should have jurisdiction .

On DATE ORG submitted his observations orally . On CARDINAL and DATE ORG submitted his oral observations on behalf of GPE .

In a judgment of CARDINAL DATE ORG , referring to LAW , ruled that the second paragraph of LAW on the regulation of political parties was unconstitutional and declared it null and void . That provision , taken together with section ORG ) of the same PERSON , provided that for a political party to be considered a “ centre ” of activities contrary to the elementary principles of the Republic its members had to have been convicted of criminal offences . According to ORG , that statutory restriction did not cover all cases contrary to the principles of the Republic . It pointed out , among other observations , that after the repeal of LAW activities contrary to the principle of secularism no longer attracted criminal penalties .

On DATE ORG dissolved Refah on the ground that it had become a “ centre of activities contrary to the principle of secularism ” . It based its decision on sections FAC ) and CARDINAL ) of PERSON no . MONEY on the regulation of political parties . It also ordered the transfer of Refah ’s assets to the ORG as an automatic consequence of dissolution , in accordance with LAW no . CARDINAL .

In its judgment ORG first dismissed the preliminary objections raised by GPE . In that connection it held that the parliamentary immunity of the MPs whose remarks had been mentioned in ORG submissions of CARDINAL DATE had nothing to do with consideration of an application for the dissolution of a political party and temporary forfeiture by its members of certain political rights , but was a question of the criminal responsibility of the MPs concerned , which was not a matter of constitutional law .

With regard to the merits , ORG held that while polutical parties were the main protagonists of democratic politics their activities were not exempt from certain restrictions . In particular , activities by them incompatible with the rule of law could not be tolerated . ORG referred to the provisions of the LAW which imposed respect for secularism on the various organs of political power . It also cited the numerous provisions of domestic legislation requiring political parties to apply the principle of secularism in a number of fields of political and social life . ORG observed that secularism was CARDINAL of the indispensable conditions of democracy . In GPE the principle of secularism was safeguarded by the LAW , on account of the country ’s historical experience and the specific features of ORG . The democratic regime was incompatible with the rules of sharia . The principle of secularism prevented the ORG from manifesting a preference for a particular religion or belief and constituted the foundation of freedom of conscience and equality between citizens before the law . Intervention by the ORG to preserve the secular nature of the political regime had to be considered necessary in a NORP society .

ORG held that the following evidence proved that PERSON had become a “ centre of activities contrary to the principle of secularism ” :

- Refah ’s chairman , ORG , had encouraged the wearing of NORP headscarves in public and educational establishments . On DATE , at the party ’s Fourth Ordinary General Meeting , he had said :

“ ... when we were in government , for DATE , the notorious LAW Code was never applied against any child in the country . In our time there was never any question of hostility to the wearing of headscarves ... ”

In his speech of DATE before the general election he had said :

“ ... [ university ] chancellors are going to retreat before the headscarf when PERSON comes to power ” .

But manifesting one ’s religion in such a manner amounted to exerting pressure on persons who did not follow that practice and created discrimination on the ground of religion or beliefs . That finding was supported by various rulings of ORG and ORG and by the case - law of ORG on applications nos . CARDINAL and CARDINAL concerning the wearing of headscarves at universities .

- The plurality of legal systems proposed by ORG was nothing to do with the freedom to enter into contracts as PERSON claimed , but was an attempt to establish a distinction between citizens on the ground of their religion and beliefs and was aimed at the installation of a theocratic regime . On DATE Mr Erbakan had made the following speech to ORG :

“ ... ‘ you shall live in a manner compatible with your beliefs’ . We want despotism to be abolished . There must be several legal systems . The citizen must be able to choose for himself which legal system is most appropriate for him , within a framework of general principles . Moreover , that has always been the case throughout our history . In our history there have been various religious movements . Everyone lived according to the legal rules of his own organisation , and so everyone lived in peace . Why , then , should I be obliged to live according to another ’s rules ? ... The right to choose one ’s own legal system is an integral part of the freedom of religion . ”

In addition , Mr Erbakan had spoken as follows on DATE at a FAC party conference :

“ ... We shall guarantee all human rights . We shall guarantee to everyone the right to live as he sees fit and to choose the legal system he prefers . We shall free the administration from centralism . The ORG which you have installed is a repressive ORG , not a ORG at the people ’s service . You do not allow the freedom to choose one ’s code of law . When we are in power a NORP will be able to get married before the mufti , if he wishes , and a NORP will be able to marry in church , if he prefers . ”

- The plurality of legal systems advocated by Mr Erbakan in his speeches had its origin in the practice introduced in DATE of ORG by the “ GPE ” , which had given the NORP and polytheist communities the right to live according to their own legal systems , not according to NORP law . On the basis of ORG some NORP thinkers and politicians had proposed a model of peaceful co - existence under which each religious group would be free to choose its own legal system . Since the foundation of the PERSON party in DATE ( dissolved by LAW DATE ) Mr Erbakan had been seeking to replace the single legal system with a plurality of legal systems and thus destroy legislative and judicial unity , which were preconditions for secularism and the consciousness of nationhood .

- In addition , Mr Erbakan had made a speech on DATE to the FAC group in parliament in which he had advocated setting up a theocratic regime , if necessary through force :

“ The second important point is this : PERSON will come to power and a just [ social ] order ( adil düzen ) will be established . The question we must ask ourselves is whether this change will be violent or peaceful ; whether it will entail bloodshed . I would have preferred not to use those terms , but in the face of all that , in the face of terrorism , and so that everyone can see the true situation clearly , I feel obliged to do so . DATE GPE must take a decision . ORG will establish a just order , that is certain . [ But ] will the transition be peaceful or violent ; will it be achieved harmoniously or by bloodshed ? The CARDINAL [ citizens ] must make up their minds on that point . ”

- The reception given by ORG at the Prime Minister ’s residence to the leaders of the various religious movements , who had attended in vestments denoting their religious allegiance , clearly evidenced PERSON ’s chairman ’s support for these religious groups vis - à - vis public opinion .

- In a public speech in DATE PERSON , MP for the province of PERSON , had issued a clear call to wage a holy war ( jihad ) and had argued for the introduction of NORP law , making the following declaration :

“ We shall certainly call to account those who turn their backs on the precepts of the Koran and those who deprive Allah ’s messenger of his jurisdiction in their country . ”

In another public speech , also in DATE , PERSON had said :

“ In the hereafter you will be summoned with the leaders you have chosen in this life . ... Have you considered to what extent the Koran is applied in this country ? I have done the sums . PERCENT [ of the rules ] in the Koran are applied in this country . CARDINAL verses have been quietly forgotten ... You found a ORG , you build a hostel , you pay for a child ’s education , you teach , you preach . ... None of that is part of the chapter on jihad but of that on the amel - i PERSON ( peacetime activities ) . Jihad is the name given to the quest for power for the advent of justice , for the propagation of justice and for glorification of ORG ’s Word . Allah did not see that task as an abstract political concept ; he made it a requirement for warriors ( cahudi ) . What does that mean ? That jihad must be waged by an army ! The commander is identified ... The condition to be met before prayer ( namaz ) is the islamisation of power . Allah says that , before mosques , it is the path of power which must be NORP ... It is not erecting vaulted ceilings in the places of prayer which will lead you to LOC . For Allah does not ask whether you have built up vaulted ceilings in this country . He will not ask that . He will ask you if you have reached a sufficient level ... DATE , if NORP have CARDINAL books , they must give thirty to the Koranic schools , to train our children , girls and boys , and the CARDINAL remaining books must be given to the political establishments which open the road to power . Allah asked all his prophets to fight for power . You can not name a single member of a religious movement who does not fight for power . I tell you , if I had as many heads as I have hairs on my head , even if each of those heads were to be torn from my shoulders for following the way of the Koran , I would not abandon my cause ... The question Allah will ask you is this : ‘ Why , in the time of the blasphemous regime , did you not work for the construction of an NORP ORG and his friends want to bring ORG to this country in the form of a political party . The prosecutor understood that clearly . If we could understand that as he did , the problem would be solved . Even PERSON the NORP has realised that in this country the symbol of NORP is PERSON . He who incites the NORP community ( cemaat ) to take up arms before political power is in NORP hands is a fool , or a traitor doing the bidding of others . For none of the prophets authorised war before the capture of State power . ... NORP are intelligent . They do not reveal how they intend to beat their enemy . The general staff gives orders and the soldiers obey . If the general staff reveals its plan , it is up to the commanders of the NORP community to make a new plan . Our mission is not to talk , but to apply the war plan , as soldiers in the army ... ”

Criminal proceedings had been brought against PERSON . Although his antipathy to secularism was well - known , PERSON had adopted him as a candidate in local - government elections . After he had been elected mayor of LAW had made sure that he was elected as an MP in ORG .

- In a public speech on DATE and a television interview first recorded in DATE and rebroadcast on DATE , PERSON , PERSON for the province of GPE , had encouraged discrimination between believers and non - believers and had predicted that if the supporters of applying sharia came to power they would annihilate non - believers :

“ Our homeland belongs to us , but not the regime , dear brothers . The regime and Kemalism belong to others . ... GPE will be destroyed , gentlemen . People say : Could GPE become like GPE ? Just as , in GPE , we got PERCENT [ of the votes ] , here too we will reach PERCENT , we will not remain on PERCENT . Do not waste your energy on us– I am speaking here to you , to those ... of the imperialist LOC , the colonising LOC , the wild LOC , to those who , in order to unite with the rest of the world , become the enemies of honour and modesty , those who lower themselves to the level of dogs , of puppies , in order to imitate the LOC , to the extent of putting dogs between the legs of NORP women – it is to you I speak when I say : ‘ Do not waste your energy on us , you will die at the hands of the people of PERSON ” .

“ ... the army says : ‘ We can accept it if you ’re a supporter of the ORG , but a supporter of sharia , never.’ Well you wo n’t solve the problem with that attitude . If you want the solution , it ’s sharia . ”

ORG had ensured that PERSON was elected as an MP and its local branches had played videotapes of this speech and the interview .

- Refah ’s vice - chairman , PERSON , in a speech he made in DATE while on pilgrimage in GPE which was shown by a NORP television station had said that he advocated installing a regime based on sharia :

“ In countries which have a parliamentary regime , if the people are not sufficiently aware , if they do not work hard enough to bring about the advent of ‘ ORG nizami’ [ a just order or PERSON ’s order ] , CARDINAL calamities lie ahead . The first calamity is the renegades they will have to face . They will be tyrannised by them and will eventually disappear . The second calamity is that they will not be able to give a satisfactory account of themselves to Allah , as they will not have worked to establish ‘ ORG nizami’ . And so they will likewise perish . Venerable brothers , our duty is to do what is necessary to introduce the system of justice , taking all these subtleties into consideration . The political apparatus which seeks to establish ‘ ORG in GPE is ORG . ”

- On DATE the governor of GPE province , PERSON , had urged the population to renounce secularism and asked his audience to “ keep their hatred alive ” until the regime was changed , in the following terms :

“ The dominant forces say ‘ either you live as we do or we will sow discord and corruption among you’ . So even ORG dare not reveal their world - outlook inside their ORG . TIME I too attended a ceremony in my official capacity . When you see me dressed up like this in all this finery , do n’t think it ’s because I ’m a supporter of secularism . In this period when our beliefs are not respected , and indeed are blasphemed against , I have had to attend these ceremonies in spite of myself . The Prime Minister , other Ministers and MPs have certain obligations . But you have no obligations . this system must change . We have waited , we will wait a little longer . Let us see what the future has in store for us . And let NORP keep alive the resentment , rancour and hatred they feel in their hearts . ”

Mr ORG had been convicted of inciting the people to hatred on the ground of religion .

- On DATE PERSON , PERSON for the province of ORG , had spoken in parliament in favour of the establishment of a regime based on sharia and approving acts of violence like those which were taking place in GPE :

“ If you attempt to close down the “ PERSON - Hatip ” theological colleges while ORG is in government , blood will flow . It would be worse than in GPE . I too would like blood to flow . That ’s how democracy will be installed . And it will be a beautiful thing . The army has not been able to deal with QUANTITY members of the ORG . How would it see off CARDINAL NORP ? If they piss into the wind they ’ll get their faces wet . If anyone attacks me I will strike back . I will fight to the end to introduce sharia . ”

ORG had been expelled from the party DATE after the application for dissolution had been lodged . His exclusion was probably only an attempt to evade the penalty in question .

- Refah ’s vice - chairman , the Minister of ORG , PERSON , had visited a person detained pending trial for activities contrary to the principle of secularism , thus publicly lending him his support as a Minister .

On the basis of the evidence adduced on DATE by ORG office , ORG held that the following further evidence confirmed that PERSON was a centre of activities contrary to the principle of secularism :

- In a public speech on DATE PERSON had emphasised the importance of television as an instrument of propaganda in the holy war being waged in order to establish NORP order :

“ ... A ORG without television is not a ORG . If DATE , with your leadership , you wished to create a ORG , if you wanted to set up a television station , you would not even be able to broadcast for CARDINAL . Do you believe it is as easy as that to create a ORG ? That ’s what I told them DATE . I remember it now . Because DATE people who have beliefs , an audience and a certain vision of the world , have a television station of their own , thanks be to God . It is a great event .

Conscience , the fact that the television [ channel ] has the same conscience in all its programmes , and that the whole is harmonious , is very important . A cause can not be fought for without [ the support of ] television . Besides , DATE we can say that television plays the role of artillery or an air force in the jihad , that is the war for domination of the people ... it would be unthinkable to send a soldier to occupy a hill before those forces had shelled or bombed it . That is why the jihad of DATE can not be waged without television . So , for something so vital , sacrifices must be made . What difference does it make if we sacrifice money ? Death is close to all of us . When everything is black , after death , if you want something to show you the way , that something is the money you give DATE , with conviction , for ORG ( FAC ) . It was to remind you of that that I shared my memories with you .

... That is why , from now on , with that conviction , we will truly make every sacrifice , until it hurts . DATE those who contribute , with conviction , to the supremacy of [ Allah ] be happy . May Allah bless you all , and may He grant ORG even more success . Greetings . ”

- By a decree of DATE the cabinet ( in which the NORP members formed a majority ) had reorganised TIME in public establishments to make allowances for fasting during DATE . ORG had annulled this decree on the ground that it undermined the principle of secularism .

The Constitutional Court observed that it had taken into consideration international human - rights - protection instruments , including the Convention . It also referred to the restrictions authorised by the second paragraph of LAW . It pointed out in that context that PERSON ’s leaders and members were using democratic rights and freedoms with a view to replacing the democratic order with a system based on sharia . It held that where a political party pursued activities aimed at bringing the democratic order to an end and used its freedom of expression to issue calls to action to achieve that aim , the LAW and supranational human - rights - protection rules authorised its dissolution .

The Constitutional Court observed that the public statements of ORG ’s leaders , namely those of ORG , PERSON and PERSON , had directly engaged ORG responsibility with regard to the constitutionality of its activities . It further observed that the public statements made by MPs PERSON , PERSON and PERSON had likewise engaged the party ’s responsibility since it had not reacted to them in any way or sought to distance itself from them , or at least not before the commencement of the dissolution proceedings .

As an additional penalty , ORG decided to strip PERSON , PERSON , PERSON , PERSON , PERSON and PERSON of MP status , in accordance with LAW . It found that these persons , by their words and deeds , had caused ORG dissolution . ORG also banned them for DATE from becoming founder members , ordinary members , leaders or auditors of any other political party , pursuant to LAW .

Judges PERSON and PERSON expressed dissenting opinions stating , inter alia , that in their view the dissolution of PERSON was not compatible either with the provisions of the LAW or with the case - law of ORG on the dissolution of political parties . They observed that political parties which did not support the use of violence should be able to take part in political life and that in a pluralist system there should be room for debate about ideas thought to be disturbing or even shocking .

This judgment was published in ORG on DATE .

The relevant provisions of the LAW read as follows :

“ GPE is a democratic , secular and social ORG based on the rule of law , respectful of human rights in a spirit of social peace , national solidarity and justice , adhering to the nationalism of PERSON and resting on the fundamental principles set out in the Preamble . ”

“ No amendment may be made or proposed to the provisions of LAW providing that the ORG shall be a Republic , the provisions of LAW concerning the characteristics of the LOC or the provisions of LAW . ”

“ Sovereignty resides unconditionally and unreservedly in the nation . ... Sovereign power shall not under any circumstances be transferred to an individual , a group or a social class . ... ”

“ All individuals shall be equal before the law without any distinction based on language , race , colour , sex , political opinion , philosophical belief , religion , membership of a religious sect or other similar grounds . ”

“ None of the rights and freedoms referred to in the LAW shall be exercised with a view to undermining the territorial integrity of the ORG and the unity of the nation , jeopardising the existence of ORG , abolishing fundamental rights and freedoms , placing the control of the ORG in the hands of a single individual or group , ensuring the domination of CARDINAL social class over other social classes , introducing discrimination on the grounds of language , race , religion or membership of a religious sect , or establishing by any other means a political system based on such concepts and opinions . ”

“ No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal interest or influence thereby . ”

“ The constitutions , rulebooks and activities of political parties shall not be incompatible with the independence of the ORG , the integrity of ORG territory and of the nation , human rights , the principles of equality and the rule of law , national sovereignty or the principles of a democratic , secular Republic . No political party may be founded with the aim of advocating and establishing the domination of one social class or group , or a dictatorship in any form whatsoever . ... ”

“ ... The Constitutional Court shall give a final ruling on the dissolution of political parties on an application by ORG at ORG . ”

“ ... A political party may not be dissolved on account of activities contrary to the provisions of LAW unless ORG has held that the political party concerned constitutes a centre of such activities . ”

“ ... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members , leaders or auditors of another political party for DATE from the date on which the reasoned decision to dissolve the party is published in ORG ... ”

“ Forfeiture of the status of member

Where ORG has validated the resignation of members of parliament , the loss of their status as members shall be decided by ORG in plenary session .

A convicted member of parliament shall not forfeit the status of member until the court which convicted him has notified the plenary ORG of the final judgment .

A member of parliament who continues to hold an office or carry on an activity incompatible with the status of member , within the meaning of LAW , shall forfeit that status after a secret ballot of ORG held in the light of the relevant committee ’s report showing that the member concerned holds or carries on the office or activity in question .

Where ORG notes that a member of parliament , without valid authorisation or excuse , has failed , for a total of DATE in DATE , to take part in the work of the ORG , that member shall forfeit the status of member where by majority vote ORG so decides .

The term of office of a member of parliament whose words and deeds have , according to ORG judgment , led to the dissolution of his party , shall end on DATE when that judgment is published in ORG . The Presidency of ORG shall enforce that part of the judgment and inform ORG accordingly . ”

The relevant provisions of Law no . PERSON on the regulation of political parties read as follows :

“ Political parties

( a ) shall not aim or strive to or incite third parties to ... jeopardise the existence of ORG , abolish fundamental rights and freedoms , introduce discrimination on grounds of language , race , colour , religion or membership of a religious sect , or establish , by any means , a system of government based on any such notion or concept . ... ”

“ The constitution , programme and activities of political parties shall not contravene the LAW or this PERSON . ”

“ The Constitutional Court shall dissolve a political party

( b ) where its general meeting , central office or executive committee ... takes a decision , issues a circular or makes a statement ... contrary to the provisions of LAW , or where the Chairman , Vice - Chairman or ORG Secretary makes any written or oral statement contrary to those provisions .

( d ) Where acts contrary to the provisions of LAW have been committed by organs , authorities or councils other than those mentioned in sub - section I(b ) , ORG shall , within DATE of the act concerned , require the party in writing to disband those organs and/or authorities and/or councils . State counsel shall [ likewise ] require , in writing , the permanent exclusion from the party of those members who have been convicted for committing acts or making statements which contravene the provisions of LAW .

State counsel shall lodge an application for the dissolution of any political party which fails to comply with the instructions in his letter within DATE of its service . If , within DATE of notification of the application for dissolution lodged by ORG , the party disbands the organ , authority or council concerned , or permanently excludes the member or members in question , the dissolution proceedings shall lapse . If not , the ORG shall consider the case on the basis of the file and shall adjudicate after hearing , if necessary , the oral submissions of ORG , the representatives of the political party and all those capable of providing information about the case ... ”

“ Where it is found that a political party has become a centre of activities contrary to the provisions of sections CARDINAL and section CARDINAL of the present PERSON , the party shall be dissolved by ORG . ”

“ All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the ORG . ”


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

Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

On DATE the applicant brought an action against a construction company , claiming that it had damaged her property by building a construction next to it . In DATE she modified her compensation claim .

In the period DATE and DATE ORG conducted CARDINAL hearings . DATE and DATE the proceedings were stayed , awaiting the outcome of administrative proceedings in respect of the status of the construction . CARDINAL hearings were adjourned at the applicant ’s request , CARDINAL for correction of certain flaws in her modified claim , CARDINAL due to improper summoning , and CARDINAL due to the absence of the experts or a failure to submit their reports . CARDINAL hearings were rescheduled upon the expert ’s request . Several hearings were postponed because the parties posed additional questions to the experts or requested gathering of further evidence .

The applicant ’s claim was partly granted by ORG on DATE , and upon appeal , by ORG on DATE . The courts ordered the defendant company to repair the damage caused to her property or to pay her ORG CARDINAL ( approximately ORG CARDINAL,CARDINAL ) plus interest and court fees .

In a final judgment of CARDINAL DATE ORG upheld ORG judgment .

While the proceedings were pending before ORG , the applicant requested that property of the defendant company be attached as a security of her claim . On DATE ORG imposed an injunction forbidding the defendant company to perform transactions with CARDINAL of its real estates and CARDINAL lorry . On DATE ORG annulled the injunction in respect of one of the real estates , reasoning that the other injunctions guaranteed the applicant ’s claim to a sufficient extent .

After the judgment of ORG of CARDINAL DATE the applicant initiated enforcement proceedings . At the defendant company ’s request , on DATE ORG stayed the enforcement proceedings pending the outcome of the review on points of law , because the defendant company had deposited the amount of ORG CARDINAL , equal to the damages awarded to the applicant .

After the final judgment of ORG , on CARDINAL DATE and again on DATE the applicant requested from the enforcement judge the resuming of the enforcement proceedings , the transfer of the deposited amount to her bank account and the scheduling of other actions for gathering the awarded interest . However , she was informed that the deposited guarantee had been returned to the defendant company on DATE .

On DATE the applicant and the defendant company signed an out - of - court agreement , under which she received the amount of ORG CARDINAL ( about EUR CARDINAL,CARDINAL ) which , according to her submissions , was less than the entire amount of the debt . On DATE the enforcement proceedings were discontinued at the applicant ’s request .

NORP In DATE the defendant company requested the lifting of the injunction in respect of the second real estate , stating that it had settled its debt . The applicant did not comment . On DATE ORG granted the request , reasoning that the injunction was no longer necessary . As the parties did not appeal against the decision , it became final on DATE .

The relevant domestic law concerning the complaint about delays under Article CARDINALa of the DATE Code of Civil Procedure is set out in the ORG ’s judgment in the case of PERSON v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .


Violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

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

On DATE ORG and Highways expropriated plots of land belonging to the applicants in GPE . A committee of experts assessed the value of the plots of land belonging to the applicants and compensation was paid to them when the expropriation took place .

On DATE , following the applicants’ request for increased compensation , ORG awarded them additional compensation of PERSON ( TRL ) plus interest at the statutory rate of PERCENT per annum , namely the rate applicable at the date of the court ’s decision . The date , DATE was fixed by the domestic court for the running of the statutory rate of interest . The parties appealed .

On DATE ORG quashed the decision of the first instance court . On DATE the first instance court re - examined the case and amended the amount of the additional compensation to GPE CARDINAL . The decision became final since none of the parties appealed . On DATE the administration paid the applicants TRL CARDINAL as the additional compensation together with interest . The interest on the additional compensation was calculated at the statutory rate applicable between the date of the decision of the first instance court in favour of the applicant and DATE .

DATE the rate of inflation averaged PERCENT per annum .

The relevant domestic law and practice are set out in the ORG v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , § § DATE ) .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

NORP The applicants’ personal details are listed in GPE I to this judgment .

The applicants were serviceman employed by ORG ( ORG obrane PERSON ) . In DATE the applicants occasionally participated in demining operations in the newly liberated territories in GPE .

On the basis of the Decision of the Minister of Defence of DATE ( see “ Relevant domestic law ” , below ) , they were entitled to a special DATE allowance for such work .

NORP Since the allowances had not been paid to them , on DATE each applicant brought a separate civil action against the ORG in ORG ( PERSON ) , seeking payment of the unpaid allowances .

The ORG responded that their actions were time - barred because the DATE limitation period for employment - related claims had expired .

NORP In reply , the applicants argued that on several occasions they had asked their commanding officer why the allowances had not been paid . Their commanding officer had made enquiries of his superior , who had then contacted ORG PERSON stožer ORG snaga PERSON ) . Eventually , the applicants had been informed through their commanding officer that their claims were not being disputed and that they would be paid once the funds for that purpose had been allocated in the ORG budget . Relying on that information , the applicants argued that the ORG had acknowledged the debt and that the running of the statutory limitation period had thus been interrupted .

On DATE and DATE ORG ruled in favour of the ORG and dismissed the ORG actions . It held that in accordance with the internal regulations of ORG the only person authorised to acknowledge the debt on behalf of ORG before the applicants had brought their actions had been the head of its ORG and his superiors . Therefore , the repeated declarations of the applicants’ commanding officer to the applicants , after making enquiries of his superiors up to the level of ORG , that their claims were not in dispute and that the allowances would be paid once funds had been allocated in the budget for that purpose , had not constituted acknowledgement of the debt capable of interrupting the running of the statutory limitation period .

On DATE the Šibenik ORG ( PERSON u PERSON ) dismissed the ORG appeals and upheld the first - instance judgments endorsing the reasons given therein .

NORP The applicants’ subsequent constitutional complaints were dismissed by ORG ( Ustavni sud PERSON ) in the period DATE and DATE . ORG decisions were served on the ORG representative on the dates indicated in GPE I to this judgment .

Decision of the Minister of Defence on Payment of Special Daily Allowances for Carrying Out Mining and Demining Works ( ORG o isplatama posebnih dnevnica za vrijeme izvođenja radova na miniranju i deminiranju , unpublished ) of DATE reads as follows :

“ CARDINAL . Permanent and reserve members of ORG carrying out mining and demining works shall have the right to special DATE allowances .

Special allowances shall be calculated in the amounts prescribed by the Decision on the Amount of Daily Allowance for Official Journeys and ORG from ORG [ that is , CARDINAL NORP kunas ( HRK ) at the time ] , and so from the time of departure to [ carry out ] mining and demining works , according to the following criteria :

( a ) the entire DATE allowance for TIME spent on mining and demining works , including periods of CARDINAL to TIME [ that is , QUANTITY ] ;

( b ) half the DATE allowance for periods of TIME .

The lists of persons entitled to special DATE allowances , with details , shall be compiled by the commander at independent battalion level or higher , and shall be certified by the commander of the operational zone ... The certified list shall be submitted for payment to the regional finance department on whose territory mining and demining works have been carried out , at the latest on DATE in respect of DATE .

This Decision shall enter into force on DATE of its adoption , and shall be applicable from DATE . ”

The relevant provision of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) reads as follows :

“ ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW or additional protocols thereto ratified by GPE , a party may , within DATE of the judgment of ORG becoming final , file a petition with the court in GPE which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .

( CARDINAL ) The proceedings referred to in paragraph CARDINAL of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .

( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom . ”


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);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 - Procedural guarantees of review);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

The applicant is an active member of civil society who holds leading positions in several NGOs , including ORG , ORG and PERSON charity fund . He is of an NORP origin and since DATE has apparently been permanently resident in GPE where he has a family and owns an apartment .

The applicant appears to be a critic of the NORP authorities . He alleges that in this connection he has been invited to visit ORG ( ORG ) on several occasions , where he was ordered to stop his cooperation with the opposition and his criticism of the government .

On an unspecified date the Head of ORG of the ORG filed a motion , seeking to carry out secret surveillance and recording of the applicant ’s telephone and other conversations .

On DATE the GPE and ORG of GPE examined the motion , finding :

“ It is evident from the materials submitted to the court and the motion that ORG of the ORG has sufficient grounds to believe that [ the applicant ] , born in DATE in GPE , a NORP national , residing at CARDINAL PERSON , apt DATE , GPE , leader of ORG , is carrying out activities aimed to destabilise the internal political situation in GPE and to create a situation of civil disobedience , thereby creating a basis for the change of government in GPE through unconstitutional means by making public calls . ”

ORG decided to grant the motion , authorising the interception and recording of the applicant ’s telephone and other conversations made to and from the applicant ’s CARDINAL mobile and CARDINAL landline numbers for DATE , taking into account that they might contain information substantiating the above - mentioned circumstances , the use of which would facilitate the disclosure of a crime and obtaining evidence , since there were elements of an offence prescribed by LAW in the applicant ’s actions . In doing so , ORG referred to , inter alia , Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ( CCP ) .

On DATE the applicant gave a speech at an assembly organised by ORG . The assembly took place in the hall of ORG and was attended by CARDINAL people . The applicant called on the participants of the assembly to get organised , otherwise nothing would move forward . It was not enough to keep telling the President and the Prime Minister to resign ; they would never do that . Peaceful assemblies would not make them resign . Nor would external pressure . He called on the participants to create a significant force , in order to make the authorities resign , stating that the main and only objective was to get rid of them . He further stressed that they should not allow those in power to multiply , otherwise the future plans of the participants of the assembly would encounter serious obstacles . The applicant called the authorities “ monsters ” who would become even more dangerous if they were allowed to multiply . The applicant agreed with other speech makers that any means were acceptable for achieving their goals .

On DATE ORG of ORG decided to institute criminal proceedings under LAW on the ground that public calls for a violent overthrow of the government had been made during the speeches given at the above assembly .

On DATE at TIME the applicant was arrested and taken to the ORG .

On DATE the applicant ’s office was searched , as a result of which a revolver and various types of bullets were found .

On DATE at TIME the relevant arrest record was drawn up . It stated that the applicant was suspected of offences under Articles CARDINAL § CARDINAL and CARDINAL of the ORG . It appears that his passport was seized .

On DATE the applicant was questioned as a suspect . He refused to give testimony , stating that the criminal proceedings against him were politically motivated .

On DATE the applicant was formally charged under Articles CARDINAL § CARDINAL and CARDINAL of the ORG . He was accused of making calls for a violent overthrow of the government and of not handing in , and illegally keeping , his weapon after his demobilisation in DATE . Another person , PERSON , who had also given a speech at the above assembly , was accused together with the applicant under LAW . Their speeches had been recorded .

On DATE the investigator filed a motion with the GPE and ORG of GPE , seeking to have the applicant detained for DATE and arguing that , if at large , he could abscond and obstruct the investigation . It appears that on DATE members of the parliament filed a statement with ORG , giving their personal guarantees for the applicant ’s proper conduct and requesting that no detention be imposed .

On DATE ORG examined the investigator ’s motion , including the charge and the circumstances surrounding it . ORG decided to grant the motion , taking into account the nature and degree of dangerousness of the imputed offence and the fact that it was at the top of the list of offences directed against state power and finding that the materials of the case provided sufficient reasons to believe that the applicant could abscond and obstruct the investigation by exerting unlawful influence on persons involved in the proceedings .

On DATE the applicant lodged an appeal , arguing , inter alia , that there was no reasonable suspicion of his having committed an offence and that ORG had failed to provide reasons justifying the necessity of his placement in detention . He submitted , in particular , that the investigating authority had a recording of his speech at its disposal , so the allegation that he could unlawfully influence witnesses was unfounded . Furthermore , the allegation that he could abscond was not supported by any arguments or evidence , while the court did not take into account the fact that he was a permanent resident in GPE , with CARDINAL minor children and an elderly , sick mother who were dependent on him .

On DATE the Criminal and Military Court of Appeal dismissed the applicant ’s appeal . In dismissing the applicant ’s argument about the lack of a reasonable suspicion , ORG found that his involvement in the imputed acts , which included features of offences envisaged by Articles CARDINAL § CARDINAL and CARDINAL of the ORG , was substantiated by evidence , such as various records and expert opinions , produced by the investigator and examined in court . As to the reasons given by ORG , ORG found these to be justified .

On DATE the applicant filed a motion requesting to be released on bail . He submitted that he was known to the investigating authority and the court , he had a clear and concrete place of residence and he had never attempted to abscond . He asked the court to fix the amount of bail .

On DATE another person , V.A. , who was the applicant ’s friend , was also charged under LAW ORG with illegal possession of firearms and ammunition in the context of the same criminal proceedings .

On DATE ORG refused the applicant ’s request for bail , citing the same grounds as those justifying his detention .

On DATE ORG upheld this decision , adding that the applicant was a foreign national and therefore could abscond . Furthermore , it was unacceptable to release the applicant on bail in view of the fact that his co - accused , V.A. , who was also charged with illegal possession of firearms and ammunition , was in detention .

On DATE the investigator filed a motion with ORG seeking to have the applicant ’s detention period , which was to expire on DATE , extended by DATE . The investigator argued that the applicant could abscond because he was a foreign national . He further argued that on DATE the applicant had transmitted through his lawyer a short note to co - accused V.A. which said “ be strong ” . This suggested that he was attempting to exert unlawful influence on the participants in the proceedings .

On DATE ORG , having examined the investigator ’s motion and other materials , granted this motion , finding that there was a need to carry out further investigative measures and citing the same grounds as before in justifying the applicant ’s continued detention .

On DATE the applicant lodged an appeal . In his appeal he argued , inter alia , that the extension of his detention had been effected in violation of the time - limits prescribed by LAW ORG .

On DATE ORG dismissed the appeal , finding that ORG , taking into account the circumstances mentioned in the investigator ’s motion , had taken a reasoned decision , since the grounds for the applicant ’s detention had not ceased to exist . As to the violation of the time - limits , ORG considered this not to be of such gravity as to have affected the correct outcome of examination of the investigator ’s motion .

On DATE the investigator filed a motion with ORG seeking to have the applicant ’s detention period , which was to expire on DATE , extended by DATE on the same grounds .

On DATE ORG examined and granted this motion on the same grounds . In the proceedings before ORG the applicant ’s lawyer asked the court whether any evidence had been submitted by the investigator in support of his motion which would be examined in court . The presiding judge replied that the materials of the criminal case related to the motion had been submitted by the investigator during the examination of his previous motion . These materials had been examined and returned by the court . The criminal procedure rules did not allow the lawyers access to the materials of a criminal case before the completion of the investigation .

Following this announcement the applicant ’s lawyer challenged the judge ’s impartiality , inter alia , on the ground that the judge had not disclosed the materials in question to the defence during the previous proceedings . The judge dismissed this challenge with reference to , inter alia , LAW ( CARDINAL ) of the ORG .

On DATE the applicant lodged an appeal , raising similar arguments as previously .

The applicant alleged that his lawyers had not been notified of the hearing to take place upon his appeal and were therefore not able to appear .

The Government contested this allegation and alleged that on CARDINAL DATE ORG had sent notifications to both ORG and the applicant ’s lawyers , which were received by them , informing them that the hearing on the applicant ’s appeal would take place on DATE .

On DATE the applicants lawyers filed a challenge with the Chairman of ORG , contesting the impartiality of the judges who were assigned to examine the appeal . The lawyers stated in their challenge that they had been informed on DATE that the case had been assigned to a judge rapporteur .

On DATE ORG examined the applicant ’s appeal in the absence of both parties . ORG decided to dismiss the appeal with the same reasoning as on DATE . This decision stated that the parties had been duly notified of the hearing but failed to appear . The same follows from the transcript of the court hearing , in which it was stated that the parties had also been informed by a judge ’s assistant by telephone . It appears that a copy of this decision was received by the applicant ’s lawyers on CARDINAL DATE .

In DATE the investigation was over and from DATE May the applicant was granted access to the case file . He submits that only then did he find out about the decision of CARDINAL DATE authorising the secret surveillance of his telephone communications .

On DATE the prosecutor approved the indictment and the case was sent to court .

On DATE Judge PERSON of the GPE and ORG of GPE decided to take over the applicant ’s criminal case .

On DATE the applicant ’s detention period , authorised by the decision of CARDINAL DATE , expired .

On DATE the applicant complained to ORG and the Minister of ORG that his detention authorised by a court had expired on DATE and that his continued detention was unlawful . He sought to be released .

On DATE Judge PERSON decided to put the applicant ’s criminal case down for trial . This decision stated that the preventive measure imposed on the applicant was to remain unchanged .

On DATE the GPE and ORG of GPE found the applicant guilty under LAW and acquitted him LAW . ORG , having examined the statements the applicant had made in his speech , found that they could not be qualified as calls for a violent overthrow of the government . As to the charge of illegal possession of a weapon , ORG found that the applicant had kept the weapon and the ammunition without a permit after his demobilisation . The applicant was sentenced to DATE and CARDINAL months’ imprisonment . The applicant ’s CARDINAL co - accused were found guilty as charged .

On DATE ORG upheld this judgment on appeal .

The relevant provisions of the ORG provide :

“ CARDINAL . Illegal acquisition , sale , possession , transportation or carrying of firearms , except for smooth - bore firearms and their bullets , ammunition , sawn - off firearms , bullets and explosive materials or devices shall be punishable by detention of DATE or by imprisonment for a period not exceeding three years . ”

“ Public calls aimed at violently seizing ORG power and violently changing the constitutional order of GPE shall be punishable by a fine of CARDINAL times the minimum wage or by detention of DATE or by imprisonment for a period not exceeding DATE . ”

For a summary of the relevant provisions see the judgment in the case of NORP v. GPE ( no . CARDINAL , § § DATE , DATE ) . The provisions of the ORG which were not cited in that judgment read as follows .

According to LAW , the court , the prosecutor , the investigator or the body of inquest can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may : ( CARDINAL ) abscond from the authority dealing with the case ; ( CARDINAL ) hinder the examination of the case during the pre - trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings , by concealing or falsifying materials significant for the case , by failing to appear upon the summons of the authority dealing with the case without valid reasons or by other means ; ( CARDINAL ) commit an act prohibited by criminal law ; ( CARDINAL ) avoid criminal liability and serving the imposed sentence ; and ( CARDINAL ) hinder the execution of the judgment . When deciding on the necessity of imposing a preventive measure or choosing the type of preventive measure to be imposed on the suspect or the accused , the following should be taken into account : ( CARDINAL ) the nature and degree of danger of the imputed offence ; ( CARDINAL ) the personality of the suspect or the accused ; ( CARDINAL ) age and state of health ; ( CARDINAL ) sex ; ( CARDINAL ) occupation ; ( CARDINAL ) family status and dependants , if any ; ( CARDINAL ) property situation ; ( CARDINAL) whether he has a permanent residence ; and ( CARDINAL ) other important circumstances .

According to LAW , if it is necessary to extend the accused ’s detention period , the investigator or the prosecutor must submit a well - grounded motion to the court not DATE before the expiry of the detention period . The court , agreeing with the necessity of extending the detention period , shall adopt an appropriate decision not DATE before the expiry of the detention period .

According to LAW , the prosecutor or the investigator shall file a motion with a court seeking to have detention imposed as a preventive measure or the period of detention extended , if such a necessity arises . The motion must indicate the reasons and grounds necessitating the suspect ’s detention . Materials substantiating the motion shall be attached to it . if such is engaged in the case , about the place and time of the court hearing .

According to LAW , judicial control of detention by the court of appeal shall be carried out in camera in the presence of the prosecutor and defence counsel . Failure to appear of a party who has been notified of DATE of the hearing beforehand shall not obstruct the judicial examination .

According to LAW ) , the accused has the right to familiarise himself with all the materials of the case upon the completion of the investigation .

According to LAW ) , defence counsel is entitled to familiarise himself with all the materials of the case , to make copies of and to take notes on any information contained in the case and in any volume , after the completion of the investigation .

According to LAW , materials of the investigation may be made public only with the permission of the authority dealing with the case .

According to Article CARDINAL , the investigator , finding that the collected materials are sufficient to draw up the bill of indictment , informs the accused of this and decides on the location and time for his familiarising with the materials of the case .

According to Article CARDINAL , operative and search activities which restrict the right to secrecy of correspondence , telephone conversations , postal , telegraphic and other communications of citizens shall be carried out only upon a judicial warrant . The types of operative and search activities carried out upon a judicial warrant shall be defined by ORG .

According to LAW , operative and search activities which restrict the right to secrecy of correspondence , telephone conversations , postal , telegraphic and other communications of persons may be carried out only upon a judicial warrant , save in cases where one of the interlocutors has agreed beforehand that his conversations be intercepted or monitored . This Article further prescribes the procedure for the judicial examination of motions seeking authorisation to carry out secret surveillance of telephone conversations filed by the head of the authority charged with carrying out operative and search activities . The motion must indicate the grounds justifying such activity , the information sought to be obtained through such activity , the place and time - limit for such activity , as well as all other relevant elements . The materials substantiating the need to carry out such activity must be attached to the motions . The court must indicate the reasons for granting or refusing the motion . The period during which the judicial warrant is effective shall be calculated from the date of its adoption and may not exceed DATE , unless decided otherwise by the warrant . The period of an operative and search activity may be extended upon a reasoned motion by the authority carrying out the operative and search activity in accordance with the procedure prescribed by this LAW .

The Operative and Search Activities Act prescribes the notion of operative and search activities , their objectives and principles , bodies carrying out such activities , their rights and obligations , types of such activities and control and supervision over them .

Article CARDINAL prescribed the types of operative and search activities which included surveillance of telephone conversations .

Article CARDINAL prescribed certain technical aspects of secret surveillance of telephone conversations , including of landline , mobile and internet conversations .

DATE prescribed that secret surveillance of telephone conversations as an operative and search activity may be authorised only if a person is suspected of a grave or particularly grave crime and if there is sufficient evidence that it is impossible to obtain the information sought by the authority carrying out the activity through other means .

According to LAW , the overall period of secret surveillance of telephone conversations may not exceed DATE .

According to LAW , if a rule prescribed by a legal act can be implemented only by adopting another legal act envisaged by the first legal act or if its implementation is directly dependent on the adoption of another legal act , then the legal act in question in its part concerning that rule shall be effective from the date on which the other legal act enters into force .


Remainder inadmissible;No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Possessions)

András Sajó;Ewald Wiederin;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in GPE in DATE to NORP parents . Her father was arrested DATE . In DATE the family learned of his death . In DATE the applicant ’s mother was arrested . In DATE the applicant and her mother were deported to the concentration camp in GPE . They were transferred to the concentration camp in ORG in DATE and were liberated DATE . After having spent DATE in camps for displaced persons , the applicant and her mother emigrated to GPE in DATE . The applicant is still living in GPE , where she resides in ORG .

The applicant married in DATE . She has CARDINAL children born in DATE , DATE and DATE . She worked as a practising lawyer and notary public .

On DATE an amendment to ORG ( Allgemeines Sozialversicherungsgesetz ) entered into force , creating additional possibilities of obtaining pension entitlements for persons who had been prevented from accumulating insurance periods by their arrest , punishment , detention , unemployment , denaturalisation or emigration as a result of ORG persecution .

Subsequently , the applicant requested ORG ( Pensionsversicherungsanstalt ) to apply these provisions to her case .

On DATE ORG issued a declaratory decision stating that the applicant was entitled to pay insurance contributions in respect of periods of emigration DATE and DATE a total of CARDINAL insurance DATE pursuant to section CARDINAL(CARDINAL ) taken in conjunction with section PERSON ) of ORG . Moreover , certain periods of secondary and university education were accepted as substitute periods ( PERSON ) provided that contributions were paid in respect of periods of emigration .

In a letter of DATE ORG informed the applicant that she would have to pay MONEY ( ORG ) per month , making a total amount of ORG for DATE . By making this payment by CARDINAL DATE at the latest she would be entitled to a DATE pension of ORG CARDINAL plus CARDINAL additional payments in the same amount per year , with effect from DATE .

The applicant appealed against the decision of DATE , arguing , inter alia , that periods of child - raising should be counted for the purpose of calculating her pension . Not doing so would discriminate against her in relation to women who had not been forced to emigrate and had thus raised their children in GPE .

On DATE ORG ( Amt der Landesregierung ) dismissed the applicant ’s appeal . It found that ORG had correctly applied sections CARDINAL ) and ( CARDINAL ) of ORG by declaring that the applicant was entitled to a maximum of DATE between DATE , when she had reached DATE , and DATE . Periods of secondary and university education abroad in DATE were accepted as substitute periods pursuant to LAW taken in conjunction with sections PERSON ) and CARDINAL(CARDINAL)(CARDINAL ) . However , section CARDINAL and the subsequent sections of ORG did not provide for periods of child - raising within the meaning of section CARDINALa to be counted as substitute periods .

The applicant lodged a complaint with ORG ) , alleging that LAW breached the principle of equality as guaranteed by LAW . She argued in particular that excluding periods of child - raising on the ground that they were spent abroad ran counter to the underlying intention of the rules concerning preferential treatment of persons who had suffered disadvantages in their social security status during the ORG era . These rules were aimed at eliminating the financial disadvantages suffered by victims of ORG under social security law .

On DATE ORG refused to deal with the applicant ’s complaint for lack of prospects of success . It observed that in an area such as the present one , concerning special provisions giving preferential treatment to a particular group of persons under social security law , the legislature had a wide margin of appreciation in assessing whether events which occurred abroad were to be treated on an equal footing with events that occurred in GPE .

Following a request by the applicant ORG referred the case to ORG ( Verwaltungsgerichtshof ) . Before that court the applicant repeated in essence the arguments she had raised before ORG . She asserted in particular that , having regard to the aim pursued by LAW and the fact that periods of secondary and university education abroad were accepted as substitute periods , the lack of a provision including periods of child - raising abroad as substitute periods could only be regarded as an omission . The authorities should have closed this unintended gap in the law by accepting periods of child - raising abroad as substitute periods .

On DATE ORG dismissed the applicant ’s complaint as being unfounded . It noted that LAW and its subsequent sections were aimed at eliminating disadvantages in accumulating insurance periods which victims of ORG had suffered on account of their persecution or emigration . The law did not require there to be an actual causal link between persecution and the loss of insurance periods . It proceeded from the assumption that without the persecution , insurance periods would have been accumulated , and provided for overall crediting ( pauschalierte PERSON ) of contribution periods or substitute periods to compensate for periods of persecution or emigration .

ORG went on to hold :

“ In such a system , a teleological gap can not in principle result from the fact that the legislature has not extended the crediting of periods of child - raising in GPE under section CARDINALa of ORG to persons who , for reasons linked to persecution within the meaning of section CARDINAL , live abroad during periods of child - raising . Section CARDINALa has a similar ( substitute ) function in that it likewise provides for the crediting for insurance purposes of periods during which the person concerned was prevented from accumulating insurance periods ( in this instance , on account of child - raising ) . In so far as the legislature already compensates for the loss of insurance periods as a result of persecution , no further compensation is needed . In so far as it does not make such provision , there is no difference in relation to other persons who are resident abroad : on account of the territoriality principle applicable under the social security scheme , the crediting of insurance periods in accordance with section CARDINALa of ORG would in any event require an equalisation arrangement through an international agreement and , moreover , decisions in such matters would be taken not in administrative proceedings but in proceedings concerning benefit entitlements .

Section CARDINAL(CARDINAL ) of ORG does not alter this finding in any way . This provision has CARDINAL aims : it ensures that periods of schooling that were interrupted as a result of persecution are regarded as completed ( thus constituting a situation giving rise to preferential treatment under section CARDINAL(CARDINAL ) ) , and it places school and university attendance abroad and in GPE on an equal footing . This equal treatment is admittedly of significance for benefit entitlement ( and not only for the application of preferential treatment on the basis of emigration ) . However , as such it falls within the discretion enjoyed by the legislature in matters of legal policy . No further inferences are to be drawn from this in terms of the principle of equality , especially not in the manner argued by the complainant . ”

Finally , ORG noted that the applicant ’s complaint failed to give more detailed reasons as to why accepting periods of child - raising abroad as substitute periods was objectively required .

The judgment was served on the applicant ’s counsel on DATE .

The General Social Security Act ( Allgemeines Sozialversicherungs - gesetz ) regulates health and accident insurance and old - age pension insurance for persons employed in GPE , based on the contributory principle .

Section CARDINAL of the General Social Security Act regulates compulsory affiliation to the social security system . Pursuant to section CARDINAL(CARDINAL)(CARDINAL ) , employees are affiliated to the health and accident insurance scheme and to the old - age pension scheme . Section CARDINAL(CARDINAL ) defines an employee as any person working in consideration of remuneration in a relationship of personal and economic dependency . For an employee affiliated to the social security system , compulsory contributions have to be paid in part by the employer and in part by the employee .

Entitlement to an old - age pension arises when a person who has reached pensionable age has accumulated a sufficient number of insurance DATE , the required minimum being DATE .

When calculating the number of insurance DATE , certain periods during which no gainful activity has been pursued , and thus no contributions have been made , are nevertheless taken into account as substitute periods , for instance periods of secondary or university education , child - raising , unemployment , or military or alternative service .

The relevant rules on substitute periods are laid down in sections CARDINAL , CARDINALa and CARDINAL of ORG . The following provisions are relevant in the context of the present case .

Section CARDINAL(CARDINAL)(CARDINAL ) and section CARDINAL(CARDINAL)(CARDINAL ) regulate in detail which periods of secondary education and university education in GPE are to be credited as substitute periods .

Section CARDINALa of ORG provides that periods which the insured person has spent exclusively or mainly raising his or her child are to be counted as substitute periods up to a maximum of DATE , starting with the birth of each child , if the period of child - raising was spent in GPE .

Section CARDINAL of ORG provides that persons who , DATE and DATE , suffered a disadvantage in their social security status for political reasons – except in connection with ORG activities DATE or on account of their religion or race are to receive preferential treatment .

The details regarding this preferential treatment are regulated in the subsequent sections and differ according to whether the person emigrated or not . The relevant provisions were enacted in DATE and have subsequently been amended several times .

Section CARDINAL(CARDINAL ) provides that persons who emigrated during the above - mentioned period and had accumulated insurance periods or substitute periods prior to that time are entitled to pay retroactive contributions ( of approximately ORG DATE ) for periods of emigration up to DATE .

Pursuant to section PERSON ) , in the version in force since DATE , persons who emigrated but had , for reasons beyond their control , not accumulated any insurance periods or substitute periods before their emigration are also entitled to pay retroactive contributions if they were born on or before CARDINAL DATE and were resident in GPE on that date . Retroactive contributions can be made with effect from the person ’s fifteenth birthday at the earliest . A further provision ( section CARDINAL(CARDINAL ) ) limits the possibility of making retroactive contributions to CARDINAL insurance months .

Pursuant to section CARDINAL(CARDINAL ) , periods of secondary education or university education abroad DATE and DATE are to be dealt with in the same way as periods falling under sections CARDINAL ) and CARDINAL(CARDINAL)(CARDINAL ) . In essence , that means that such periods are to be counted as substitute periods , in the same way as periods of secondary education or university education spent in GPE .