Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings

Mr PERSON , a NORP national born in DATE , was formerly a lawyer and lives in GPE ( GPE ) .

The applicant ’s wife , PERSON , was a member of ORG and head of ORG and Police from DATE until her resignation in DATE .

On DATE a Mr Hauser , a member of the law firm ORG , was asked by a client to verify the legality of a request for judicial assistance sent to GPE by GPE authorities concerning a tax matter . After studying the file , PERSON PERSON declined to accept the work , referring to a standing instruction to members of the applicant ’s firm to refuse all cases concerning ORG and Police , for which his wife was at that time responsible . The file was accordingly transferred to the law firm ORG , ORG in GPE .

On DATE ORG , ORG asked ORG if they could inspect the letter of request . On DATE ORG sent the firm an abridged ( gestrippte ) version of the document , withholding a confidential section which concerned organised crime .

In DATE , in a separate development , the media reported allegations that a company , ORG , and PERSON , who was at the relevant time the vice - chairman of its board of directors , were implicated in money laundering . At DATE PERSON lodged a complaint against a newspaper .

At his wife ’s request , the applicant had resigned as vice - chairman of the board in DATE . His wife then came under suspicion of disclosing confidential information obtained in an official capacity . As her husband was also suspected of other offences , she was obliged to resign .

NORP On DATE the NORP parliament set up a parliamentary commission of inquiry to look into the way PERSON had performed her duties , and the circumstances of her resignation .

In DATE the chairman of the parliamentary commission of inquiry , PERSON , was informed that a PERSON , an NORP citizen , had obtained from the applicant a document which ORG and ORG had refused to communicate to him , in exchange for a payment of MONEY . PERSON was given this information by a Mr Y , who had himself obtained it from the initial informant , a Mr Z.

It subsequently transpired that PERSON was named in the NORP letter of request , which contained confidential information about his role in organised crime . Suspicion therefore arose that a member of ORG and Police might have passed on confidential documents relating to the request , thus breaching the duty not to disclose official secrets .

On DATE ORG opened an investigation against a person or persons unknown in order to question the informant Y and to identify the person working at ORG and Police who might have disclosed official secrets .

He also ordered monitoring of the telephone lines of the informants Y and X , and of those of PERSON and his wife . The applicant was monitored as a “ third party ” , not as a suspect .

The monitoring began on CARDINAL DATE and ended on DATE .

On DATE the President of ORG allowed an application by ORG for monitoring of CARDINAL telephone lines in total , including the applicant ’s private and professional lines and those of his wife , and in particular a secret line allocated to her as a former member of ORG . The order expressly mentioned that “ the ORG conversations [ were ] not to be taken into account ” .

On DATE the parliamentary commission of inquiry published its report . It concluded that PERSON had performed her duties with competence , diligence and circumspection , and that the rumours to the effect that she had allowed external influences to affect the way she performed her duties were unfounded . In DATE ORG acquitted PERSON of disclosing official secrets .

On DATE ORG interviewed the informant Y , in the presence of the chairman of the parliamentary commission , PERSON .

On DATE Mr Leuenberger contacted the informant Z , who was interviewed by ORG on DATE .

On DATE , having concluded that the suspicions regarding the disclosure of official secrets were unfounded , ORG discontinued monitoring of all PERSON and PERSON telephone lines .

On DATE ORG submitted its final report on the investigation , which stated that in DATE Mr PERSON had passed on to the firm of ORG , ORG a file relating to the letter of request ( see paragraph CARDINAL above ) and that there was no evidence that the applicant and his wife had been directly involved in that case .

On DATE ORG decided to close the investigation , on the ground that there was no evidence to corroborate the suspicions that the applicant ’s wife or a member of ORG and Police had disclosed official secrets , namely certain passages of the letter of request which had been classified as confidential .

In a letter of CARDINAL DATE ORG informed PERSON that a judicial investigation had been opened , pursuant to ORG CARDINAL and CARDINAL § CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) , in connection with the suspected disclosure of official secrets , and that his private and professional telephone lines had been tapped , in accordance with sections CARDINAL et seq . of LAW ( see paragraphs CARDINAL–CARDINAL below ) .

The letter stated that the monitoring had lasted from DATE to CARDINAL DATE and that “ conversations connected with his professional activities as a lawyer [ had not been ] monitored ” . It also stated that , pursuant to section DATE ter ) of LAW , all the recordings had been destroyed .

On DATE the parliamentary commission of inquiry issued a communiqué concerning the monitoring of PERSON telephone lines in connection with the judicial investigation concerning him . It stated in particular :

“ In the course of its inquiries , in connection with which it obtained authorisation to intercept telephone communications , the [ ORG discovered that the NORP citizen ’s NORP representatives had tried to obtain the confidential document in the file by applying to [ the applicant ] . They were hoping for privileged access to ORG and Police on account of the fact that he was the husband of ORG then responsible for that ORG . For a fee , a lawyer from [ the applicant ] ’s law firm studied the file in order to decide whether to take on the case , but turned it down . An attempt was then made to obtain the confidential part of the file through another lawyer . The NORP letter of request was in the end disclosed , but only after the confidential passages had been blotted out . On the basis of these findings , ORG discontinued the investigation … The suspicion that there had been a disclosure of official secrets thus proved to be unfounded . The police investigation did , however , reveal how the rumour that led to the information and the suspicion arose . ”

On DATE a number of NORP newspapers commented on the above communiqué . They mentioned the applicant among the persons implicated and mentioned that telephones had been tapped .

On DATE , DATE and DATE PERSON lodged complaints with ORG and Police about breaches of the legislation on telephone tapping and of LAW .

On DATE ORG dismissed the applicant ’s complaints . Considering that they were to be classified as complaints to a higher authority , it refused him unrestricted access to his file .

On DATE PERSON lodged an administrative appeal with ORG against the decision taken on DATE by ORG and Police . He complained , among other matters , of unlawful telephone tapping and of the refusal to give him free access to the file .

Under the heading “ Violation of LAW ” , he made the following submission in particular :

“ In that context , it should also be noted that the telephone lines of [ the applicant ] ’s law firm , which included a number of partners , were tapped . Section CARDINAL(CARDINAL bis ) of LAW expressly prohibits the interception of such telephone conversations . Interception of telephone conversations with [ the applicant ] ’s law firm was therefore likewise illegal under the above - mentioned provision of NORP law . ”

On DATE ORG dismissed the administrative appeal .

It observed that , where telephone tapping was concerned , a complaint to a higher authority , even one which had no basis in law , was to be treated as a normal administrative appeal . It held that it had jurisdiction to determine whether monitoring of the applicant ’s telephone lines had been unlawful , whether that measure had been in breach of the LAW and whether the applicant ’s right to inspect his file had been infringed . If his personal rights had been infringed , the applicant could claim damages . He could also rely on ORG decision in order to seek redress ( GPE ) from ORG .

ORG considered that the applicant should have access only to those documents in the file which were directly relevant to the fact that he had had his telephone tapped as a “ third party ” . It noted that he had had restricted access to the documents , some of which had been censored , particularly as regards the informants’ names . Others , which concerned , for instance , the telephone tapping , had not been made available to him , but he had been orally informed of their existence and content . Several documents concerning third parties had not been handed over to him because their interests prevailed over his .

According to ORG , section CARDINAL of LAW authorised monitoring the telephones of third parties , such as the applicant , if there was evidence giving rise to a presumption that they were receiving information from an offender or imparting information to him .

It considered that in the period of general uncertainty due to rumours of subversion which had then obtained ( eine durch GPE verunsicherte PERSON ) there had been specific evidence pointing to a disclosure of official secrets by someone within ORG and Police . The document in question contained confidential information about which guarantees had been given to GPE . The credibility of GPE had therefore been at stake . An apparent risk had been identified when the name of the applicant , who was the husband of the former head of ORG and Police , was mentioned .

According to ORG , it had been necessary to tap the telephone lines at the beginning of the investigation , before contacts were established with Mr Y and PERSON The civil servants concerned had therefore not immediately looked into the informants’ credibility , considering that any further contact would have compromised the investigation .

ORG observed that the applicant had had his telephone tapped not as a suspect but as a “ third party ” within the meaning of section MONEY bis ) of LAW . The conversations he had had in the capacity of lawyer had been expressly excluded . As he was not a civil servant , he could not have been guilty of the offence concerned . His wife had been one of the theoretically possible suspects , but there was no real evidence implicating her or anyone else . The fact that the applicant ’s telephone lines had been monitored did not mean , therefore , that he had been under suspicion in the criminal sense . Moreover , the fact that the police investigation had been initiated in respect of “ a person or persons unknown ” was not simply a ploy to preserve appearances . Lastly , the investigation had not been ordered for political reasons and the chairman of the parliamentary commission had not been in a position to influence it .

In conclusion , ORG observed that the conversations recorded had been of no interest to the investigators and no report on them had been made . Be that as it may , even if such a report had been sent to the parliamentary commission , it could not have been used improperly because its members were bound by the duty not to disclose official secrets .

The applicant also lodged with ORG an administrative - law appeal against the decision taken on DATE by ORG and Police ( see paragraph CARDINAL above ) . He asked ORG to rule that the telephone tapping had been unlawful and accordingly to order the institution of criminal proceedings against those responsible .

On DATE ORG gave judgment against the applicant .

It first considered whether he should have been permitted to inspect the whole of the file when the case had been brought before ORG and Police . It noted that he had been able to inspect those passages in the document which had determined the decision ( entscheidungswesentlich ) and that the decision not to disclose the informants’ names had been justified . It held that the above conclusion was also consistent with the parliamentary commission of inquiry ’s decision to guarantee the informants’ anonymity . Moreover , on the basis of even a partial inspection of the file ( gestützt auf die ihm zugestellten “ gestrippten ” PERSON ) , the applicant had been able to lodge appeals .

ORG then considered whether criminal proceedings should be brought in connection with the monitoring of the applicant ’s telephone lines . It held that it was not required to provide a conclusive ( abschliessend ) answer to the question whether the telephone tapping constituted a violation of LAW , having regard in particular to the fact that the applicant had already appealed to ORG . It noted that criminal proceedings had been instituted for a presumed disclosure of official secrets on the basis of information passed on by the chairman of the parliamentary commission of inquiry . The applicant ’s firm was involved inasmuch as one of his partners had looked into the case in order to decide whether he should take it on . The presumption by ORG that the first informant or the disloyal civil servant would contact the applicant did not seem to have been wholly unjustified .

Under LAW of LAW , any person who discloses a secret entrusted to him in the capacity of civil servant makes himself liable to imprisonment or a fine . Under LAW ( CARDINAL ) , the offence comes under the jurisdiction of ORG .

The relevant provisions of LAW ( “ the NORP ” ) , in the version of DATE , which was in force at the material time , were worded as follows :

“ CARDINAL . The investigating judge may order monitoring of the accused ’s or suspect ’s postal correspondence and telecommunications …

CARDINAL bis . Where the conditions justifying the monitoring of the accused or suspect are satisfied , third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him . Persons who , by virtue of section CARDINAL , may refuse to give evidence shall be exempt .

QUANTITY . Recordings which are not needed for the conduct of an investigation shall be kept in a separate place , under lock and key , and shall be destroyed at the end of the proceedings … ”

“ CARDINAL . Within TIME of his decision , the investigating judge shall submit a copy of it , accompanied by the file and a brief statement of his reasons , for approval by the President of ORG .

NORP The decision shall remain in force for not DATE ; the investigating judge may extend its validity for CARDINAL or more further periods of DATE . The order extending its validity , accompanied by the file and the statement of reasons , must be submitted , not DATE before expiry of the time - limit , for approval by the President of ORG .

The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary , or immediately if his decision is rescinded . ”

“ CARDINAL . NORP The President of ORG shall scrutinise the decision in the light of the statement of reasons and the file . Where he finds that there has been a breach of federal law , including any abuse of a discretionary power , he shall rescind the decision .

He may authorise monitoring provisionally ; in that case , he shall lay down a time - limit within which the investigating judge must justify the measure , either by adding any relevant material to the file or orally . ”

“ CARDINAL . The procedure shall be kept secret even from the person concerned . The President of ORG shall give brief reasons for his decision and notify the investigating judge thereof within DATE of the date when the monitoring began , or , where the period of validity has been extended , before the further period begins .

NORP The President of ORG shall ensure that the interception measures are discontinued on expiry of the time - limit . ”

“ CARDINAL . Before the opening of a preliminary investigation ORG may order interception of postal correspondence and telecommunications … ”

“ Clergymen , lawyers , notaries , doctors , pharmacists , midwives , and their auxiliaries , can not be required to give evidence about secrets confided to them on account of their ministry or profession . ”

By LAW of DATE , which has been in force since DATE , the following relevant provisions were supplemented as follows ( new text shown in italics ) :

“ CARDINAL . The investigating judge may order monitoring of the accused ’s or suspect ’s postal correspondence and telecommunications if

( a ) The criminal proceedings concern a major offence whose seriousness or particular nature justifies intervention ; and if

( b ) Specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence ; and if

( c ) Without interception , the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results .

CARDINAL bis . NORP … The telecommunications connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused .

By LAW of DATE , which has been in force since DATE , the following relevant provisions were amended as follows :

“ CARDINAL . The investigating judge shall inform the person concerned , within DATE of the close of the proceedings , of the reasons for the monitoring carried out , the means employed and its duration .

Sections CARDINAL to CARDINAL quinquies shall be applicable by analogy . ”

In the opinion of academic writers , information not specifically connected with a lawyer ’s work on instructions from a party to proceedings is not covered by professional privilege ( see , for example , PERSON , PERSON pénale GPE , GPE , DATE , p. CARDINAL , no . CARDINAL , and B. Corboz , “ Le secret professionnel de l’avocat selon l’article CARDINAL CP ” , NORP judiciaire , GPE , DATE , pp . CARDINAL–CARDINAL ) .

Thus , in a judgment of CARDINAL DATE ( see ORG [ Judgments of ORG ] CARDINAL lb CARDINAL ) , ORG held that a lawyer may not decline to give evidence about confidential matters of which he has learned in the course of work not going beyond the management of assets and the investment of funds .

In another judgment , of DATE , ORG similarly held that a lawyer who is the director of a company may not plead professional privilege to justify his refusal to give evidence ( ORG CARDINAL la CARDINAL ) .

In a case where a lawyer had complained of a seizure of documents , ORG , after considering the complaint in the particular light of LAW , once again upheld that case - law on DATE ( ORG CARDINAL la CARDINAL ) .

Similarly , in connection with medical confidentiality , ORG has held that information imparted to a doctor in his private capacity is not protected by professional privilege ( ORG CARDINAL la CARDINAL , judgment of CARDINAL DATE ) .


No violation of Art. 6-1;No violation of Art. 6-3

The applicant , who was born in DATE , settled in GPE in DATE . His mother tongue is NORP .

On DATE the applicant was charged before ORG ( tingsrätten ) of GPE with aggravated drunken driving and driving without a driver ’s licence . According to the record of the police investigation , he did not request the assistance of a public defence counsel . On DATE ORG , apparently of its own motion , appointed the lawyer PERSON as public defence counsel for the applicant .

On DATE the applicant was charged with another incident of aggravated drunken driving and driving without a driver ’s licence . According to the record of the police investigation , he stated that he wished the lawyer PERSON to be appointed as public defence counsel .

NORP On DATE the applicant was charged with yet another incident of aggravated drunken driving and driving without a driver ’s licence . According to the record of the police investigation , he did not wish to be assisted by public defence counsel .

On DATE the applicant was charged with causing a traffic accident , leaving the scene of the accident and driving without a driver ’s licence . According to the record of the police investigation , he did not wish to be assisted by public defence counsel .

On DATE the applicant was charged with possessing a knife in a public place . According to the record of the police investigation , he did not wish to be assisted by public defence counsel .

On DATE the public prosecutor applied for a detention order regarding the applicant , who was suspected of attempted aggravated assault . According to the prosecutor ’s application , the applicant wished to have S. as public defence counsel . At the subsequent hearing , the lawyer PERSON replaced , with ORG permission , PERSON as public defence counsel . According to the TIME from the hearing , the applicant requested that PERSON , a NORP lawyer who had previously assisted him and who knew NORP , should be appointed as his public defence counsel , whereupon the judge informed him that he should give reasons for his request in writing . The court rejected the application for a detention order and released the applicant . Subsequently he did not submit a written request for a replacement of defence counsel .

On DATE the applicant was charged with attempted aggravated assault and possessing a knife in a public place .

When scheduling the main hearing , ORG had telephone contact with the applicant who reiterated his request to have PERSON appointed as his public defence counsel . The court asked the applicant to contact PERSON in the matter .

Before ORG the applicant apparently lodged some submissions independently of counsel PERSON It appears that these submissions were all in NORP , the applicant invoking his right under LAW ( PERSON språkkonventionen ) to submit pleadings in his mother tongue . All the written submissions were translated into NORP and entered into the case - file .

At the main hearing on DATE the applicant was assisted by PERSON as public defence counsel . Neither the minutes of the hearing nor the judgment delivered in the case contains any indication that the applicant at that time expressed a wish to have his public defence counsel replaced . In addition to counsel ’s oral submissions , the applicant defended himself orally in NORP via a court - appointed interpreter . He denied some of the offences he was charged with , confessed some and declared that he neither confessed nor denied the remainder of the charges .

By a judgment of CARDINAL DATE the applicant was convicted on all the above - mentioned counts and sentenced to DATE and DATE in prison . He was also ordered to pay MONEY ( SEK ) of the total litigation costs in the case . These included H. ’s fees which amounted to SEK CARDINAL for , inter alia , TIME of work . The remainder of the costs was borne by the ORG .

NORP The applicant appealed against the judgment in respect of the charges he had denied . The prosecution also appealed , seeking a more severe sentence . The prosecution stated that the applicant was in great need of public counsel for his defence , although he clearly did not wish to be represented by H.

On DATE , in the proceedings before ORG ( hovrätten ) for LOC , the applicant requested that counsel PERSON be replaced by S. The applicant reiterated that he had previously been assisted by PERSON and that he was able to communicate with him in NORP . S. had declared that he was willing to assist the applicant as public defence counsel .

On DATE the applicant ’s request was refused , the appellate court considering that sufficient reasons for counsel to be replaced had not been presented . On DATE ORG ( Högsta domstolen ) refused the applicant leave to appeal against ORG decision .

As in the proceedings before ORG , the applicant apparently lodged some submissions in NORP before the appellate court , all of which were translated into NORP and entered into the case - file .

The Court of Appeal heard the case on CARDINAL DATE . PERSON attended the hearing as the applicant ’s counsel . There is no indication in the minutes of the hearing that the applicant opposed PERSON ’s presence . Having heard H. ’s oral pleadings , ORG gave the applicant the floor via a court - appointed interpreter .

On DATE ORG upheld the applicant ’s conviction and sentence . It also decided that the litigation costs in the appeal proceedings – including PERSON ’s fees of SEK CARDINAL,CARDINAL – should be paid by the ORG .

On DATE ORG refused the applicant leave to appeal .

The references made in the following pertain to chapter QUANTITY of LAW ( Rättegångsbalken ; hereinafter “ the Code ” ) , if not otherwise indicated .

The suspect may conduct the defence on his or her own ( section CARDINAL ) or with the assistance of a defence counsel ( section CARDINAL ) who , as a main rule , is appointed by the suspect ( section CARDINAL , subsection CARDINAL ) . A defence counsel so appointed is referred to as private defence counsel , as opposed to CARDINAL appointed by a court who is referred to as public defence counsel .

Public defence counsel is to be appointed for a person who is arrested or in detention , if he or she so requests . Upon request , such counsel will also be appointed for a person suspected of an offence for which the statutory penalty is imprisonment for DATE ( section CARDINAL a , subsection CARDINAL ) . In addition , public defence counsel must be appointed under either of the following circumstances : ( CARDINAL ) if the suspect is in need of counsel due to the criminal investigation , ( CARDINAL ) if there is such a need on account of it being uncertain which penalty will be imposed and there is reason to impose a penalty other than a fine or a conditional sentence or a combination of those penalties , or ( CARDINAL ) there are other special reasons relating to the suspect ’s personal situation or the subject matter of the case ( section CARDINAL a , subsection CARDINAL ) . However , if the suspect has already appointed defence counsel , no additional public counsel is to be appointed ( section CARDINAL a , subsection CARDINAL ) .

The court considers the question of appointing public defence counsel if such appointment has been requested or it finds cause therefor of its own motion ( section CARDINAL , subsection CARDINAL ) . A request for the appointment of public defence counsel may be made by the suspect or the public prosecutor responsible for the pre - trial investigation . In deciding this issue , the starting - point for the court is whether there is a need for counsel considering the character of the matter at stake . According to the preparatory documents to the legislation ( Government PERSON , p. CARDINAL ) , there may not be any consideration of the suspect ’s economic situation in this context .

The suspect has a certain influence on the appointment of public defence counsel . Thus , the person suggested by the suspect is to be appointed if he or she is competent and the appointment would not cause a considerable increase in the costs or there are other special reasons against that appointment ( section CARDINAL , subsection CARDINAL ) . According to the preparatory documents ( Nytt juridiskt arkiv ( NJA ) II DATE , p. CARDINAL ) , it is important that the suspect has confidence in the person assisting him or her . Somebody else than the person suggested should be appointed only if the above - mentioned reasons are at hand . There is no right to have public defence counsel who speaks the suspect ’s mother tongue , but such considerations may be taken into account . Otherwise , the matter of language is solved by using interpreters paid out of public funds .

The appointment of public defence counsel may be revoked if there is no longer a need for such counsel or if there is some other justifiable reason . If the suspect authorises another person than the publicly appointed counsel to conduct his or her defence , the appointment is to be revoked , unless this would cause considerable inconvenience ( section CARDINAL ) .

A publicly appointed counsel may also be replaced ; such a replacement , however , has to be supported by justifiable reasons ( see NJA II DATE , p. CARDINAL ) . There are some examples in case - law of how this issue has been dealt with by the courts .

In CARDINAL case ( NJA DATE , p. CARDINAL ) ORG allowed that public defence counsel be replaced on the ground that special importance had to be attached to a lack in the defendant ’s confidence in his counsel when there was a risk of long - term imprisonment and there could be differing opinions as to what evidence should be presented to the court . ORG had sentenced the defendant to CARDINAL years’ imprisonment for , inter alia , an aggravated narcotics offence .

Another case ( NJA DATE , p. CARDINAL ) concerned an accused who , pleading not guilty , had been sentenced for murder to life imprisonment . ORG stated that in such a case , where the accused had no confidence in his public defence counsel , he should be allowed to have that counsel replaced .

In a third case ( PERSON hovrätterna ( ORG ) CARDINAL ) a NORP national was suspected of murder . ORG did not allow the replacement of his public defence counsel in favour of someone who was able to speak NORP .

Private defence counsel is paid for by the suspect . If the suspect is acquitted , the costs of the defence are normally reimbursed . Public defence counsel , however , is paid out of public funds ( Section CARDINAL a ) . LAW of the LAW regulates who will eventually bear counsel ’s costs in such a case . Normally , if the suspect is convicted , he or she will have to pay the costs of the defence , in whole or in part , depending on his or her economic situation . If the suspect is acquitted , the ORG will bear the costs , as with the costs of private defence counsel .

A decision by a ORG to refuse a request for the appointment of public defence counsel , or a decision to appoint another counsel than the CARDINAL suggested by the suspect , may be appealed against to a ORG and further to ORG .


BERGAUER AND OTHERS v. THE CZECH REPUBLIC

The applicants are CARDINAL NORP , NORP or NORP nationals , all of NORP ethnic origin . They or their ancestors were residing in former GPE , from the territory of which they were expelled after the Second World War . Before the ORG they are represented by PERSON , a lawyer practising in GPE ( GPE ) .

The applicants or their ascendants lost their NORP citizenship as a consequence of LAW ( Mnichovská dohoda ) concluded between GPE , GPE , GPE and GPE on DATE . In DATE border areas of NORP territory , termed by the applicants “ NORP ” , were annexed to GPE under the LAW , on the basis of which CARDINAL NORP citizens were ordered to leave their property and move to the remaining territory of GPE known as GPE . Their real estate was expropriated without compensation .

On DATE the NORP Minister of the Interior adopted an Ordinance on the acquisition of NORP citizenship by former NORP citizens of NORP ethnicity . These persons were collectively made NORP nationals without their consent .

On DATE the NORP territory was liberated and the Government , led by President Mr PERSON , returned from their exile in GPE to re - establish the rule of law after the war . A number of presidential decrees was adopted .

The applicants submit that , during the liberation of GPE and after DATE , they and/or their family ’s predecessors became victims of severe and unjustified ill - treatment . This consisted of , inter alia , various unsubstantiated assaults , individual acts of violence and harassment allegedly committed by members of the NORP partisans’ guards , forcible replacement and internment in inadequate conditions , obligatory labelling of NORP nationals with distinguishing arm bands , forcible evictions , confiscation of movable assets and valuables , and forced labour .

On CARDINAL DATE Presidential Decree no . CARDINAL/CARDINAL on LAW during the period of Lack of Freedom and on ORG , NORP , Traitors and Collaborators , and ORG ( dekret presidenta republiky o neplatnosti některých majetkově - právních jednání z doby nesvobody a o národní správě majetkových hodnot Němců , ORG , zrádců a kolaborantů a některých organisací a ústavů ) entered into force . It provided , inter alia , that “ any form of property transfer and transaction affecting property rights , in terms of movable and immovable assets and public and private property , shall be invalidated if it was adopted after DATE under pressure by the NORP occupation forces or due to national , racial or political persecution ” . Moreover , “ those persons who in any census held after DATE declared themselves to be of NORP or NORP origin , or became members of national groups , formations or political parties , which functioned as associations for persons of NORP or NORP nationality , shall be deemed persons of NORP or NORP nationality ” .

On DATE Presidential Decree no . CARDINAL/CARDINAL on the Confiscation and Accelerated Allocation of the Agricultural Property of NORP , NORP , NORP and Enemies of the NORP and NORP nations ( dekret presidenta republiky o konfiskaci a urychleném rozdělení zemědělského majetku Němců , ORG , jakož i zrádců a nepřátel českého a slovenského národa ) entered into force . It provided for the expropriation , with immediate effect and without compensation , of agricultural property for the purposes of land reform . It concerned any agricultural property , with its attachments - buildings and movable goods - in the ownership of all persons of NORP and NORP origin , irrespective of their citizenship status .

On DATE Presidential Decree no . CARDINAL/CARDINAL on ORG of NORP and NORP Nationality ( dekret presidenta republiky o úpravě československého státního občanství osob národnosti německé a maďarské ) entered into force . On the basis of this decree , the NORP State released from its citizenship those persons who , “ in compliance with the regulations of the foreign occupation forces , had acquired NORP or NORP citizenship ” . NORP citizenship was retained by persons who had demonstrated “ their loyalty to GPE , had never committed any offence against NORP and NORP nationals , and who had either actively participated in the struggle for the liberation of the country , or had suffered under NORP or fascist terror ” . Citizenship was also retained by NORP and NORP who “ in the period of the increased threat to the Republic , officially registered as NORP or NORP ” . A further category provided for people who could apply to recover citizenship within DATE from the date of the publication of the relevant ORG regulation . This group included NORP “ opponents of NORP and NORP ” . Applications for the recovery of NORP citizenship were to be filed with district national committees DATE and DATE .

Following the resolution adopted at ORG with the unanimous consent of ORG , the NORP populations from the territories of GPE , GPE and GPE were moved to GPE . The actual performance and technical modalities of the move were subject to regulation by subordinate legislation ; no particular laws or presidential decrees providing for the execution of the relocation were adopted .

Presidential Decree no . CARDINAL/CARDINAL on the Confiscation of Enemy Property and the National Restoration Funds ( dekret presidenta republiky o konfiskaci nepřátelského majetku a GPE národní obnovy ) entered into force on DATE . It provided for the confiscation of the property of NORP , NORP , traitors and collaborators , and persons with an unreliable attitude to the ORG . However , the property of the people , including NORP and NORP , who took an active part in the fight for the preservation of the territorial integrity and liberation of GPE was not confiscated .

On DATE LAW of the Paris Conference on Reparation ( Dohoda o reparacích od PERSON , o zřízení ORG reparačního úřadu a o vrácení měnového zlata ) established , that :

“ Each of the signatory governments , through the form fixed on its own discretion , will keep NORP enemy property under its authority , or will dispose of it in such a way that it could not return under NORP ownership or control , and will subtract this property from its share of the reparations . ”

On DATE Act No . CARDINAL on ORG in connection with the Struggle to regain the Liberty of the NORP and NORP ( zákon o právnosti jednání souvisících s bojem o znovunabytí svobody Čechů a Slováků ) entered into force . Under section CARDINAL , “ Any act committed DATE and DATE , the object of which was to contribute to the struggle for the liberty of NORP and NORP , or which represented just reprisals for actions of the occupation forces and their accomplices , is not unlawful even if it would be punishable under the currently applicable laws . ”

Established in DATE , ad hoc parliamentary committees investigated the circumstances of acts of violence committed after the liberation in DATE , as a result of which a number of criminal proceedings had commenced and continued until DATE , when the democratic constitution of GPE was undermined again .

II . The period shortly before and after DATE , the date of the entry into force of LAW with regard to GPE

On DATE the Extra - Judicial Rehabilitation Act no . CARDINAL/CARDINAL entered into force . The act affirmed the intention to redress the consequences of certain infringements of property and other rights which had occurred DATE . Section CARDINAL(CARDINAL ) , inter alia , provides that , in order to be entitled to the restitution of property , a claimant must be a natural person and a citizen of the NORP and GPE .

On DATE LAW no . CARDINAL/CARDINAL entered into force . It regulates , inter alia , the restitution of certain agricultural and other property , defined in DATE , which was assigned or transferred to the ORG or other legal entity between CARDINAL DATE and DATE . Section CARDINAL ) lists the acts giving rise to a restitution claim . The persons entitled to claim restitution are set out in section CARDINAL which provides , inter alia , that any natural person who is a citizen of the NORP and GPE and who lost property which once formed his or her agricultural homestead in the period from DATE to DATE , in CARDINAL of the ways set out in section CARDINAL ) , is entitled to claim restitution .

On DATE LAW no . CARDINAL/CARDINAL entered into force . It established NORP ( NORP ) citizenship and permanent residence within the NORP territory as the prerequisite conditions for claiming expropriated real estate .

In a judgment of CARDINAL DATE ORG ( PERSON ) abrogated the condition of permanent residence within the territory of GPE , laid down in LAW , for persons claiming restitution .

On DATE ORG dismissed a constitutional appeal ( ústavní stížnost ) filed by PERSON who had sought to repeal Presidential Decree No . CARDINAL/CARDINAL . It stated in particular :

“ ( ... ) since the enemy occupation of the NORP territory by the armed forces of the PERSON had made it impossible to assert the sovereign ORG power which sprang from LAW of GPE , introduced by LAW no . CARDINAL , as well as from the whole NORP legal order , LAW , set up in GPE , must be looked upon as the internationally recognised legitimate constitutional authority of the NORP State . In consequence thereof and as a result of their ratification by ORG . CARDINAL of DATE , all normative acts of LAW are expressions of legal NORP ( NORP ) legislative power , so that as a result thereof the striving of the nations of GPE to restore the constitutional and legal order of the Republic was achieved . ( ... )

( ... ) it is true in principle that that which emerges from the past must , face to face with the present , pass muster in respect of values ; nevertheless , this assessment of the past may not be merely the present passing judgment upon the past . In other words , the present order , which has been enlightened by subsequent events , draws upon those experiences , and looks upon and assesses a great many phenomena with the advantage of hindsight , may not sit in judgment upon the order which has prevailed in the past . ( ... )

In view of the fact that [ the Decree ] has already accomplished its purposes and for a period of DATE has not created any further legal relations , so that it no longer has any constitutive character , in the given situation its inconsistency with constitutional acts or international treaties ( ... ) can not be reviewed DATE . ”

In a judgment of CARDINAL DATE ORG abrogated the condition of permanent residence within the territory of GPE , laid down in LAW and LAW , for persons claiming restitution .

On DATE Act No . CARDINAL/CARDINAL , amending LAW and LAW , entered into force . It amended the condition of permanent residence within the territory of GPE into the condition of lasting NORP ( NORP ) citizenship , and enabled the entitled persons , originally discriminated by the condition of residence , to re - introduce their restitution claim .

In a judgment of DATE ORG ( PERSON ) referred to Presidential Decree No . CARDINAL/CARDINAL as valid legislation .

According to the applicants , this state of law , whereby the Presidential Decrees of DATE were considered a valid part of the national legal system and a condition of lasting citizenship was required for claiming restitution , prevented them from raising their restitution claims before the courts . Due to this discouragingly defined position , they did not attempt to seek either restitution or financial compensation before the national courts , nor did they lodge an appeal or a proposal to repeal particular acts with ORG .

On DATE the NORP - German Declaration regarding ORG and their Future Development ( GPE - německá deklarace o vzájemných vztazích a jejich budoucím rozvoji ; PERSON - tschechische Erklärung über die gegenseitigen PERSON und deren künftige GPE ) was concluded by the respective governments expressing their regret for the grievances arising from the period of CARDINAL–CARDINAL and a determination to maintain good neighbourly relations .

On DATE ORG adopted a resolution providing , inter alia , that “ the legal and property relations resulting therefore [ from the post - war laws and presidential decrees ] are incontestable , unimpeachable and unchangeable . ”


Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

NORP On DATE the applicant was convicted by ORG ( tingsrätten ) of having harassed a woman with whom he previously had been living and of threatening her new partner . He was given a suspended sentence and a fine . The applicant appealed against the judgment to ORG ( hovrätten ) where a hearing was held on DATE . In a judgment of DATE , ORG upheld the lower court 's judgment in full . On DATE ORG ( ORG domstolen ) refused the applicant leave to appeal .

On DATE the applicant lodged an application with the ORG ( application no . CARDINAL/CARDINAL ) in which he complained under several Articles of the LAW that the criminal trial against him had been flawed in various ways . In particular , he claimed that he had never been informed of the charges against him in LANGUAGE , although he had requested this during the preliminary investigation , that the courts had not presumed him innocent , that the trial had been unfair since ORG had refused leave to appeal and that he had been punished without law as the courts had taken into account the possible motives of the people involved . On DATE the application was declared inadmissible by a ORG as being manifestly ill - founded .

Subsequently , on DATE , the applicant complained to the Chancellor of Justice ( NORP ) that the tape recordings from the oral hearing before ORG had been destroyed . He submitted that he needed the tape recordings in order to complain to the ORG and that the destruction of the tapes hindered him from effectively exercising this right in accordance with LAW . Moreover , he claimed that the time - limit of DATE “ after the final hearing ” for destroying the records according to NORP law was too short and not in accordance with GPE 's obligations under LAW , which afforded individuals a period of DATE to complain to the ORG .

In its reply dated DATE , the Chancellor of ORG first observed that the tape recordings from ORG hearing on DATE had been destroyed at some point in DATE and the applicant had requested a copy of the recordings in DATE . It then noted that , according to the Ordinance on Cases and Matters before ORG ( förordning [ CARDINAL:CARDINAL ] om mål och ärenden i allmän domstol ; hereafter “ the LAW ” ) , a person who requested a copy of a tape recording from a hearing had the right to obtain it and it was possible to have the copy as soon as the protocol from the hearing had been finalised . However , the tape recordings had to be kept for DATE following judgment in the case or , if the judgment was appealed against , until final judgment or decision had been rendered . In the applicant 's case , the Chancellor of ORG observed that ORG had not destroyed the tape recordings until after ORG had refused leave to appeal . Consequently , it had acted in accordance with the law . The Chancellor further considered that DATE time - limit imposed under NORP law could not be considered insufficient for an individual to obtain a copy of the tape recording if he or she wanted to complain to the ORG .

The applicant wrote a second letter to the Chancellor of ORG on DATE in which he repeated that he considered the time - limit for the destruction of tape recordings to be in conflict with GPE 's obligations under LAW and CARDINAL of the Convention . However , in a letter dated DATE , the Chancellor of ORG referred to its previous letter and clarified that it did not consider that the relevant NORP legislation was in violation of GPE 's obligations under the Convention .

According to LAW , LAW ( LANGUAGE , CARDINAL:CARDINAL ) accounts which are given as evidence at a hearing shall be recorded on tape or , if the accounts can be assumed to be of importance to the case , written down .

Section CARDINAL of the Ordinance stipulated that , if someone requested information on the contents of a tape recording which had been made in accordance with LAW , LAW , he or she should be given a copy of that recording , unless the court considered that there were special reasons to furnish the person with a transcript instead . When a transcript was made , its accuracy had to be attested and a copy of the transcript should be included in the case file .

NORP Moreover , according to section CARDINAL of the GPE , a tape recording had to be kept for DATE after the court ruled in the case . However , if the decision or judgment was appealed against , the tape recordings had to be kept until the case had been adjudicated through a domestic judgment or decision which had gained legal force .


The applicant was born in DATE and lives in GPE .

On DATE the police detained him on suspicion of illicit possession of drugs . On DATE the applicant was released from detention . Throughout the ensuing criminal proceedings he has remained on a written undertaking not to abscond .

On DATE , following the completion of the pre - trial investigations , the case was referred to ORG of Odessa , which on DATE absolved the applicant for lack of proof against him . On DATE the ORG ( “ the ORG of Appeal ” ) quashed the above judgment for procedural breaches and remitted the case for retrial .

DATE and DATE the proceedings were suspended as the applicant absconded and his whereabouts were unknown .

On DATE the Prymorskyy District Court of Odessa ( “ the ORG ” ) , to which the case was transferred , found the applicant guilty as charged , sentenced him to DATE imprisonment and exempted him from the sentence as the charges against him became time - barred . On DATE ORG quashed that judgment for procedural breaches and remitted the case for retrial .

On DATE ORG discontinued the criminal proceedings against the applicant as the charges against him became timebarred . On DATE ORG quashed the above decision for procedural breaches and remitted the case for retrial . The proceedings are still pending before ORG .

In the course of the proceedings CARDINAL hearings have been adjourned due to the applicant ’s , his lawyer ’s and the witnesses’ failure to appear or upon the applicant ’s or his lawyer ’s requests . These delays attributable to the applicant have protracted the proceedings by DATE approximately . CARDINAL hearings have been adjourned due to the absence of the judges . CARDINAL hearings have been adjourned due to the witnesses’ failure to appear , in respect of whom the courts have on a number of occasions applied compulsory summonses . CARDINAL hearings have been adjourned due to the absence of the NORP interpreter , on whose presence the applicant has insisted , even though the domestic courts have established that the applicant has been fully conversant in the language of the proceedings . CARDINAL expert examinations have been ordered and have lasted for DATE .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON .

On DATE the applicant sent an e - mail to the headquarters of ORG ) in which he requested access to all information about him held by ORG . He was convinced that ORG had information about him as he claimed that he had been under surveillance since DATE , when he had given a tip about a person to them and he had later turned down an offer to work for them . He alleged that he had , inter alia , been the victim of telephone tapping , camera surveillance , invasion of his correspondence , intrusion into his home , bugging and monitoring of his computer , e - mail and Internet as well as of involuntary medication . As the applicant now wished to initiate proceedings against the NORP State for illegal surveillance and harassment in order to obtain compensation , he needed all the information about him kept by ORG to prove his case .

On DATE ORG granted his request as concerned CARDINAL official documents , namely CARDINAL e - mails and CARDINAL print - out from ORG register , which all concerned the applicant 's present request . As concerned CARDINAL other internal documents , which had also been created as a result of the applicant 's request , ORG rejected the request on the ground that these documents had not yet been dispatched ( expedierade ) . As the documents related to a case which was not yet finalised , they were not considered to have been created within the meaning of the Freedom of the Press Act ( ORG , CARDINAL –hereafter “ the DATE LAW ) and , consequently , they had not yet become official . Thus , the applicant could not obtain access to them . Lastly , ORG noted that most information held by ORG about individuals was not secret in relation to the person it concerned . However , certain information could be confidential under LAW ( Sekretesslagen , CARDINAL ) , such as information relating to national security . In this respect , it could be harmful to national security to inform a person that ORG either had or did not have information about him or her . For this reason , it rejected the remainder of the applicant 's request about whether or not there existed any more information about him .

The applicant appealed against the decision to ORG ( kammarrätten ) in GPE . On DATE , after having visited ORG headquarters and examined the files , the appellate court upheld ORG decision in full .

Upon further appeal , ORG ( Regeringsrätten ) refused leave to appeal on DATE .

LAW , section CARDINAL , of the CARDINAL LAW stipulates that every NORP citizen shall be entitled to free access to official documents in order to encourage the free exchange of opinion and the availability of comprehensive information . However , according to LAW , section CARDINAL , of LAW , the right of access to official documents may be restricted in specific circumstances , such as if the restriction is necessary having regard to the security of the ORG or its relations with another ORG or an international organisation . Any restriction on the right of access to official documents must be carefully specified in a special law , or if more appropriate in a particular situation , in another law to which the special law refers ( LAW , LAW , paragraph CARDINAL ) .

NORP Moreover , LAW , section CARDINAL , of the CARDINAL Act stipulates that a document is considered to be official if it is kept by a public authority and if it can be deemed to have been received or created by a public authority ( LAW , section CARDINAL ) . In this respect , LAW , section CARDINAL , of the DATE LAW that a document is deemed to have been created by a public authority when it has been dispatched . A document which has not been dispatched is considered to have been created when the matter to which it relates has been finally settled by the authority or , if the document does not relate to a specific matter , when it has been finally checked and approved by the authority , or has otherwise received final form .

According to LAW , section CARDINAL , of LAW , as in force at the relevant time , information which related to activities to defend the country or planning or preparing such activities or otherwise related to ORG was secret if the disclosure of such information was likely to harm the country 's defence or otherwise endanger national security .


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

The applicants were active members of ORG in ORG at the time of the events giving rise to the present application .

In DATE , on various dates , the applicants were arrested and taken into police custody on suspicion of their involvement in the activities of an illegal armed organisation , namely the ORG ( ORG Party ) .

NORP The periods spent by the applicants in police custody are as follows :

According to official documents , PERSON and PERSON were arrested for the first time on the basis of statements of Mr GPE , Mr GPE , PERSON PERSON , Mr GPE and Mr GPE , who alleged that the applicants were involved in ORG - related activities . As to the applicants ' arrest in DATE , the case file reveals that the police had been informed that there would be illegal violent acts and demonstrations to celebrate the anniversary of the beginning of the armed struggle of the ORG and that the names of the applicants came up as possible organisers .

Subsequent to these events , criminal proceedings were instigated against the applicants for membership of the ORG by the public prosecutor at ORG , with the exception of ORG and ORG .

On DATE ORG acquitted PERSON and PERSON of the charges against them . The criminal proceedings against PERSON and PERSON were pending at the time of their application to the ORG .

A description of the relevant domestic law at the material time can be found in the NORP v. GPE judgment ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .