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

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

On DATE the applicant was arrested on suspicion of being a member of a criminal gang specialising in the theft of cars . On DATE the applicant was convicted and on DATE his conviction was upheld on appeal by ORG . He was sentenced to DATE imprisonment . During the criminal proceedings against him the applicant was detained in the following detention facilities :

- CARDINAL DATE : Prison no . CARDINAL ;

- CARDINAL DATE – DATE : detention facility of ORG ;

- DATE – DATE : Prison no . CARDINAL ;

- CARDINAL DATE – DATE : Prison no . CARDINAL ;

- CARDINAL DATE present : Prison no . CARDINAL .

According to the applicant the conditions of detention in Prison no . CARDINAL and Prison no . CARDINAL were very poor and amounted to inhuman and degrading treatment . In respect of Prison no . CARDINAL , the applicant submitted that the cells were overcrowded and humid and there was no ventilation . He also complained about the quality and quantity of the food . As to Prison no . CARDINAL , he submitted that it was located on territory controlled by the NORP separatist authorities but was itself under the control of the NORP constitutional authorities . The separatist authorities had cut off the power and water supplies and disconnected the prison from the sewage network . As a result the inmates had electrical power for TIME per day and the water was limited to QUANTITY per day , plus another QUANTITY once a week for showers and washing clothes .

The relevant parts of the Report of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) concerning a visit to GPE DATE read as follows ( unofficial translation ) :

“ CARDINAL . Penitentiary establishment No . CARDINAL in PERSON had been the subject of CARDINAL visits by the ORG since DATE , following the decision of the municipal authorities of PERSON to deprive the establishment of running water and electricity supply ( and , as of DATE , to disconnect it from the city ’s sewage disposal system ) . The seriousness of the situation confronting the establishment led the ORG to state in the report on its visit in DATE that , unless the above - mentioned problems were resolved , prisoners should be relocated elsewhere . In their response to that report , the GPE authorities indicated that they considered the situation at Penitentiary establishment No . CARDINAL in PERSON to be under control and saw no reasons for the relocation of prisoners to other establishments .

When re - visited by the ORG ’s delegation on DATE , the establishment was holding CARDINAL prisoners ( compared with CARDINAL on DATE ) . The delegation was informed that CARDINAL inmates had been released since DATE , and approximately the same number of new prisoners had been admitted . The great majority of the prisoners currently held at the establishment originated from the NORP region or nearby locations . The delegation gained the impression that all prisoners who had been admitted in DATE had themselves asked for a transfer to PERSON , in particular because of wishing to be closer to their families . An examination of the documentation confirmed that newly admitted prisoners had been expressly informed of the conditions prevailing at the establishment ( i.e. absence of running water , electricity and sewage disposal ) and had confirmed with their signature their wish to be transferred there . Further , it appeared that the few inmates who had requested transfer to other establishments had received satisfaction .

As regards material conditions , in terms of living space per prisoner ( CARDINAL m² ) , state of repair and decoration , the dormitories in which inmates were accommodated offered conditions superior to those witnessed at any other penitentiary establishment seen by the ORG in GPE . Further , prisoners stated that the food they received was better than that provided elsewhere . Moreover , no problems were reported as regards the heating .

However , in the absence of any progress in the stand - off between the municipal authorities of PERSON and the NORP authorities , electricity continued to be produced by generators and was available TIME a day in the evenings , enabling inmates inter alia to watch TV . Further , water was delivered regularly by a lorrycistern and was distributed into reservoirs supplying the kitchen and the bathroom ; inmates could take a shower once a week . As for toilets , cesspools had been installed in the basements of the unused buildings .

Prisoners could circulate freely around the establishment ’s extensive LOC and engage in outdoor sports . However , there was a shortage of organised activities . Some CARDINAL prisoners were employed in the establishment ’s general services ( kitchen , cleaning , repairs , etc . ) . Further , the establishment ’s director spoke of plans to set up a carpentry workshop ; however , it was unclear when these plans would materialise .

The delegation was informed that relations with the municipal authorities of ORG had become less tense in DATE . As a result , staff travelling across the border between GPE and the NORP region were reportedly able to come to work on a regular basis .

To sum up , it is clear that the NORP authorities have continued to take steps to alleviate , as far as possible , the difficult situation facing Penitentiary establishment No . CARDINAL in PERSON and to ensure that the health and welfare of prisoners are protected . Further , there are signs of a more pragmatic approach on the part of both parties concerned by the stand - off . This is encouraging .


CASE OF MIKHAYLYUK AND PETROV v. UKRAINE

Violation of Art. 8;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

DATE the second applicant worked for the ORG no . CARDINAL ( “ the colony ” ) . He was provided with a room in a hall of residence , which was situated on the site of the colony and had the same postal address . He resided there until DATE . Afterwards , the applicants lived together in the first applicant 's flat . The second applicant is still entitled to reside in the colony and it remains his registered place of residence .

In DATE the applicants instituted civil proceedings in GPE against the colony and the local post office . They alleged that letters addressed to them by domestic and international courts , which had been delivered to the address of the second applicant , had been unlawfully opened and read by the defendant institutions . The applicants sought compensation for non - pecuniary damage .

On DATE the court rejected the applicants ' claims . It established that the colony had opened CARDINAL letters addressed to the applicants : the letter of DATE , sent by the GPE ORG of GPE to the first applicant , and the letter of CARDINAL DATE , sent by ORG second applicant in the context of his previous application to the ORG ( no . MONEY , declared inadmissible on DATE ) .

The court held that , pursuant to LAW of DATE and section CARDINAL of ORG of DATE , the administration of the colony had been authorised to monitor all correspondence delivered to it . Since the room of the second applicant was situated on the premises of the colony , his correspondence had been dealt with by its administration in accordance with the rules applicable to detainees ' correspondence . The court also found that the administration had acted in accordance with the Instruction on the processing of documents in the organs of ORG and the ORG on the organization of the monitoring of correspondence of persons held in penitentiary institutions and pre - trial detention centres , issued by ORG on DATE and CARDINAL DATE , respectively . The court further stated that the letter addressed to the first applicant had been opened also due to the fact that there had been a detainee with the same name in the colony . The court concluded that the interception of the applicants ' correspondence had not violated their constitutional rights .

On DATE the ORG upheld the first - instance court 's decision . On DATE a panel of CARDINAL judges of ORG rejected the applicants ' request for leave to appeal in cassation .

The relevant provisions of the LAW read as follows :

“ Everyone shall be guaranteed privacy of mail , telephone conversations , telegraph and other correspondence . Exceptions shall be established only by a court in cases envisaged by law , with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case , if it is not possible to obtain information by other means . ”

“ Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions , acts or omissions by public or municipal bodies or civil servants in the performance of their official duties . ”

According to LAW , the correctional labour legislation regulated the procedure and conditions of serving criminal sentences and the activities of the organs enforcing criminal sentences .

Article CARDINAL of the Code provided that detainees ' correspondence was subject to censorship , and their parcels and packages were subject to opening and checking .

According to section CARDINAL of the LAW , pre - trial detention is a preventive measure in respect of an accused , a defendant or a person suspected of having committed a crime punishable with imprisonment , or a convicted person whose sentence has not yet become final .

Section CARDINAL of the LAW provides that detainees ' personal belongings and correspondence must be checked .

At the material time ORG CARDINAL and CARDINAL of the Code empowered investigators to intercept a person 's correspondence on the basis of a prosecutor 's or a court 's warrant if there were sufficient grounds to believe that such correspondence contained information of importance for establishing the truth in a criminal case .

According to section CARDINAL of the LAW , as worded at the material time , retrieval and search operations were aimed at detection and recording of information about unlawful activities by a person or groups of persons and about intelligence and subversive activities of foreign special services , and in the interests of public safety . Retrieval and search operations were to be carried out by the organs of the ORG , ORG , ORG , ORG , and ORG ( section CARDINAL ) . Interception of correspondence , as one of the types of such activities , required a prosecutor 's warrant ( section CARDINAL) .

Section CARDINAL of the LAW contained an exhaustive list of grounds pursuant to which retrieval and search operations might be carried out , which included the presence of sufficient information about crimes , intelligence and subversive activities against GPE , persons who were preparing or have committed crimes , persons hiding from the investigative bodies or evading the application of criminal sanctions , and disappeared persons ; the submission of requests by the relevant authorities to check persons for the reasons of granting them access to secret information ; and the need to obtain intelligence information in the interests of public and ORG safety .


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

The applicant used to be employed by the municipality of ORG as a civil servant in charge of a division ( työkeskus , arbetscentralen ) subordinated to ORG ( perusturvalautakunta , bastrygghetsnämnden ) . The applicant was , among other things , in charge of purchasing within that division . His post was , however , abolished and he was given notice on DATE due to economic reasons and a reorganisation of the organic chart of municipal staff . On DATE ORG confirmed his dismissal .

The applicant appealed to ORG of Oulu ( hallinto - oikeus , förvaltningsdomstolen ) , arguing , among other things , that the decision to dismiss him was unlawful , since he should instead have been given the post as head of purchasing , which was vacant at that time and which he had applied for . ORG , finding that the applicant should have been given another post within the municipality , overturned the decision on DATE .

However , the decision by ORG was overturned , by CARDINAL votes to CARDINAL , by ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) on DATE . It found that there were no vacant posts available to the applicant as the municipality in DATE had decided not to fill the post as head of purchasing . Thus , the dismissal of the applicant became final .

No oral hearing was held at any time of the proceedings , nor did the applicant request that such a hearing be held . He was represented by counsel at least before ORG .


CASE OF EĞİTİM VE BİLİM EMEKÇİLERİ SENDİKASI v. TURKEY [Extracts]

Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

Eğitim - Sen , the ORG and ORG ( “ the union ” ) was formed in GPE on DATE . According to the information it has provided , the union has CARDINAL members with CARDINAL branches and is present in CARDINAL towns and cities . It is affiliated to the KESK ( ORG – ORG ) , which is a member of ORG .

On DATE the union amended LAW b ) of its constitution to read as follows :

“ [ Eğitim - Sen ] defends the right of all individuals in society to receive , with equality and freedom , a democratic , secular , scientific and cost - free education in their mother tongue . ”

On DATE the Governor of GPE requested the applicant union to delete the words “ their mother tongue ” from its constitution on the ground that they were in breach of NORP CARDINAL and CARDINAL of the LAW and of sections LAW no . ORG on public ORG unions .

The applicant union informed the Governor that it was too busy but that it undertook to amend its constitution by DATE .

On DATE , under LAW no . ORG , the Governor of GPE requested the public prosecutor of GPE to bring an action for dissolution against the applicant union on the ground that it had not carried out the requisite amendment of LAW b ) of its constitution .

On DATE the applicant union amended LAW b ) of its constitution to read as follows :

“ [ Eğitim - Sen ] defends the right of all individuals in society to receive education in their mother tongue and to benefit from the development of their culture . ”

On DATE the public prosecutor gave a decision discontinuing the dissolution proceedings initiated by the Governor , on grounds of insufficient evidence and incriminating factors . In his decision the public prosecutor indicated , firstly , that the applicant union had amended LAW ( b ) of its constitution , which now provided that individuals should “ receive education in their mother tongue ” ; he further stated that the matter was being discussed in some depth both publicly and in political parties and that it would be tabled for debate in ORG . He concluded that , in those circumstances , it was not appropriate to bring dissolution proceedings against the applicant union or criminal proceedings against the members of its board .

On DATE ORG ( “ the Ministry ” ) informed the applicant union that , following the examination of its constitution , as amended on DATE to comply with the relevant provisions of Law no . ORG , it had been concluded that the impugned LAW was no longer in breach of the law .

On DATE ORG armed forces requested ORG to take the necessary measures against the applicant union on the ground that LAW b ) of its constitution , as amended on DATE , was in breach of Articles CARDINAL and CARDINAL of the LAW .

On DATE the ORG requested the Governor of GPE to examine the provisions of LAW b ) of the applicant union ’s constitution in the light of LAW CARDINAL of PERSON no . ORG .

On DATE the Governor of GPE requested the applicant union to delete the words “ receive education in their mother tongue ” from DATE ( b ) of its constitution .

On DATE the Governor of GPE , referring to the provisions of LAW b ) of the applicant union ’s constitution and summing up the first set of proceedings against it , applied to the public prosecutor of GPE to initiate fresh dissolution proceedings . The Governor explained that , even though PERSON no . CARDINAL of CARDINAL DATE provided for the teaching of a number of languages and dialects , LAW applicant union ’s constitution , in so far as it provided for education in a language other than NORP , was in breach of that PERSON .

On DATE the public prosecutor of GPE brought proceedings against the CARDINAL members of the executive board of ORG . In the context of that action , the prosecutor further requested the dissolution of the applicant union under LAW no . ORG on the ground that the union had not deleted the impugned wording from its constitution .

ORG assumed jurisdiction to rule on the application for the dissolution of the applicant union pursuant to Law no . ORG .

On DATE ORG , applying section CARDINAL of Law no . ORG , granted the applicant union a period of DATE to amend the impugned provisions of its constitution .

In a judgment of DATE , ORG dismissed the application for dissolution . In its reasoning it indicated in particular that the relevant Articles of Eğitim - Sen ’s constitution did not jeopardise ( tehlike ) territorial , national or ORG unity or the existing borders of GPE . It did not find that the union had committed any unlawful action capable of suggesting that the provisions of the impugned LAW constitution would be used by those opposed to the unity of GPE . Based on LAW , the tribunal also gave its own interpretation of ORG CARDINAL and CARDINAL . It explained in this connection that freedom of expression constituted the basis of a democratic and pluralistic society , and that such freedom was a necessary condition for the progression of democratic societies and the personal development of each individual . It emphasised that , without such freedom , there was no democracy . It concluded that the provisions of LAW b ) of Eğitim - Sen ’s constitution were not in breach of ORG CARDINAL and CARDINAL of the Convention . It further indicated that section CARDINAL(CARDINAL ) of PERSON no . DATE which granted DATE to a union to comply with the law – should be interpreted in the light of the purpose of that PERSON . According to the tribunal , even if the union had not complied with the law within the time allowed , it was still for the tribunal to examine whether the application was well - founded and to rule on the merits of the case .

On DATE the public prosecutor appealed on points of law .

In a judgment of DATE , ORG overturned the judgment of DATE on the ground that ORG had not correctly applied section CARDINAL(CARDINAL ) of PERSON no . ORG . It took the view that this section did not allow for any latitude of interpretation and that the dissolution of the union was mandatory where it had not complied with the provisions of the PERSON within DATE . It therefore concluded that Eğitim - Sen had to be dissolved , as it had not complied with the law within the time allowed to it by the Governor and the tribunal .

In a judgment of CARDINAL DATE , ORG , contrary to ORG judgment of DATE , reiterated its original findings . It referred back to the legal reasoning used in its judgment of DATE and invoked the GPE case - law on the dissolution of political parties , in particular the cases concerning ORG of GPE and ORG ( ÖZDEP ) . It further observed that the official language of GPE was NORP and that , according to LAW , any individual attached to the Republic by citizenship was NORP . In its view , the fact of learning a language other than the official language did not constitute an action or conduct in breach of the law , but such conduct was proof of an attachment to the State of GPE . Whilst agreeing that the official language was NORP and that there could not be any other official language , it found that there should not be any particular impediment to the learning of other languages . Referring to its previous reasoning , based on Articles CARDINAL and CARDINAL of the Convention , the tribunal found that there were CARDINAL main grounds for the dissolution of a union , an association or a political party , namely “ an imminent threat ” and “ the criterion of violence ” . It observed that the union whose dissolution was sought defended in its constitution the principle of education in one ’s own mother tongue and the development of culture . It emphasised that , even supposing that the wording in question was illegal , the content and weight of the terms did not constitute an imminent threat or an incitement to violence and their inclusion in the union ’s constitution did not jeopardise territorial , national or State unity or the existing borders of GPE . It found , on the contrary , that the decision not to dissolve the union would have the effect of calming the social tension , disorder and antagonism that were prevalent in society , and of restoring social peace .

NORP In a judgment of CARDINAL DATE , the combined divisions of ORG ( Yargıtay Hukuk PERSON ) quashed by a majority the judgment of the court below . In its reasoning the court indicated that ORG CARDINAL of the Convention provided for statutory limitations to the exercise of the freedoms of expression , assembly and association and that they notably stipulated that such restrictions had to be necessary in a NORP society . It was therefore the court ’s task to verify whether the restrictions imposed by domestic law on fundamental rights and freedoms were consistent with GPE ’s international commitments . The court took the view that the union ’s call for education in a mother tongue other than NORP was in breach of Articles CARDINAL and CARDINAL of the Constitution and that it ran counter to the acceptance of a unitary ORG and to the existing legal system . In the court ’s opinion , the right to form a union could thus be limited and such restrictions were necessary in a NORP society . The combined divisions of ORG concluded that the defence of education in a mother tongue other than NORP could not rely on LAW and CARDINAL of the Convention .

In their dissenting opinion , some of the members of the combined divisions of ORG , relying on section CARDINAL of Law no . ORG , observed that , according to the conclusion of the court below , the impugned provisions of the union ’s constitution were compliant with the law . The dissenting judges were of the view that , as a result , there had been no legal basis on which to order the union to amend its constitution within DATE . They stated that the judgment had to be quashed to enable the court below to comply with section CARDINAL of Law no . ORG and not for the purpose of having the union dissolved .

On DATE the applicant union amended the offending part of LAW ( b ) of its constitution to read as follows :

“ [ Eğitim - Sen ] defends , in the context of human rights and fundamental freedoms , the right of all individuals in society to receive a democratic , secular , scientific and cost - free education . ”

In a judgment of DATE , ORG , taking note of the amendment to the union ’s constitution , found that there was no longer any reason to rule on the dissolution of the union , since the material elements that had given rise to the action no longer existed .

The relevant provisions of LAW , as in force at the material time , read as follows .

“ CARDINAL . The State of GPE constitutes , with its territory and nation , an indivisible whole . The official language is NORP . ... ”

“ Fundamental rights and freedoms may be restricted only by law and on the grounds set out in special provisions of the LAW , provided always that the essence of such rights and freedoms remain intact . Any such restriction must not conflict with the letter or spirit of the LAW or the requirements of a democratic , secular social order and must comply with the principle of proportionality . ”

“ Everyone has the right to freedom of thought and opinion .

No one may be compelled to reveal his thoughts and opinions or be reprimanded or incriminated on account of his thoughts or opinions for any reason and for any purpose whatsoever . ”

“ Everyone has the right to express , individually or collectively , his thoughts and opinions and to disseminate them orally , in writing , in image or by any other means . This right includes the freedom to receive or impart information and ideas without interference by public authority . The present paragraph shall not preclude the imposition of rules concerning the licensing of broadcasting , television , cinema or other similar enterprises .

The exercise of these freedoms may be restricted in the interests of national security , public order and public safety , for the preservation of the fundamental characteristics of the Republic , to protect the indivisible integrity of the ORG in terms of its territory and nation , to prevent crime , to punish offenders , to prevent the disclosure of information covered by ORG secrecy , to protect the honour , rights and private and family life of others , together with professional secrecy as provided for by law , and to ensure the fulfilment of the judicial function in accordance with its purpose .

Rules governing the use of any means of conveying information and ideas are not to be regarded as restricting freedom of expression or freedom to impart ideas , provided they do not prevent such information or ideas from being conveyed .

Any formalities , conditions and procedures concerning the exercise of freedom of expression and the conveying of ideas shall be regulated by law . ”

“ No one may be deprived of the right to education . ...

ORG are not absolved from the duty to remain loyal to the LAW by the freedom of education .

No language other than NORP may be taught to NORP citizens as their mother tongue or be used for the purposes of teaching in educational institutions . The law lays down the rules concerning the teaching of foreign languages in educational institutions and those that must be complied with by schools where education is provided in a foreign language . The provisions of international conventions are reserved . ”

“ Employees and employers shall have the right to form trade unions and federations of unions , without prior permission , in order to safeguard and develop the economic and social rights and interests of their members in the context of their labour relations , and to join or withdraw from such entities of their own free will . No one shall be compelled to join or resign from a trade union .

The right to form a union may only be limited as prescribed by law in the interests of national security or public order , for the prevention of crime , for the protection of public health or morals or for the protection of the rights and freedoms of others .

The formalities , conditions and procedures applicable to the right to form a trade union shall be prescribed by law .

Membership of CARDINAL trade union within the same sector of activity shall be prohibited .

The scope of the rights , in this sphere , of public officials other than those who have the status of ordinary contractual employee , and the exceptions and limitations applicable to them , shall be prescribed by law in a manner appropriate to the nature of the services they provide .

The constitution , administration and functioning of trade unions and federations of unions shall not be inconsistent with the fundamental characteristics of the LOC or with democratic principles . ”

“ Any individual who is connected to ORG by nationality shall be NORP . ... ”

In the event of conflict as to the scope of fundamental rights and freedoms between an international agreement duly in force and a domestic statute , the provisions of the international agreement shall prevail . ”

The relevant provisions of PERSON no . ORG read as follows .

“ ( CARDINAL ) ORG unions and confederations may be formed freely and without prior authorisation . ...

( CARDINAL ) ... In the event of failure to remedy [ the breaches observed , the Governor ] shall apply to the court for the termination of the activities of the trade union or confederation . ...

( CARDINAL) The court shall allow a time - limit not exceeding DATE [ for the trade union or confederation ] to comply with the law or remedy the breaches observed . If , at DATE said period , the constitution or the documents in question are not compliant with the law , the court may order the dissolution of the union or confederation . ... ”

“ The administration and functioning of trade unions and confederations formed hereunder shall not be incompatible with the democratic qualities and principles of the Republic as defined in the LAW . ... ”

“ Any trade union or confederation which engages in activities that are incompatible with the qualities and principles of the Republic as defined in the LAW shall be dissolved by decision of the court which has jurisdiction to hear labour disputes , on an application by the public prosecutor for the district where the registered office [ of the union or confederation ] is situated . ... ”

Section CARDINAL(a ) of PERSON no . PERSON provides that no language other than NORP may be taught to NORP citizens in educational establishments . However , it is permitted to make available to NORP citizens private classes for the teaching of languages and dialects that they use traditionally in their daily lives , in accordance with a regulation adopted by the Minister for ORG . The teaching of such classes must not undermine the unity of the ORG and the nation or the indivisibility of national territory .

In its latest report on GPE ( paragraphs CARDINAL , DATE , DATE , DATE , DATE and DATE ) , adopted on DATE and published on DATE , ORG against Racism and Intolerance ( ECRI ) reported as follows .

“ Teaching in and of languages other than NORP to persons belonging to minority groups other than those recognised under LAW

Law no . CARDINAL , enacted in DATE and which amended Law no . CARDINAL on foreign - language education and teaching and the learning of different languages and dialects by NORP citizens , paved the way for opening private schools to teach ‘ languages and dialects traditionally used by NORP citizens in their daily lives’ . In accordance with the Regulation on learning of different languages and dialects traditionally used by NORP citizens in their daily lives , which came into effect on QUANTITY DATE , NORP language courses opened in CARDINAL towns DATE and DATE . However , all have since closed , and other attempts to open a NORP language school in GPE did not come to fruition as the relevant administrative requirements could not be met . The authorities have indicated that applications to open ORG and ORG private courses are still being examined by the relevant Governorships in accordance with the above ORG . At present , there are thus no private language schools open in GPE for the teaching of the languages spoken by minority groups . ...

... ECRI welcomes the decision taken by the NORP authorities in DATE to open a ORG at GPE ’s ORG , at which NORP could be taught ; courses in NORP , LANGUAGE and LANGUAGE were also reportedly to be offered at the institute ’s opening in DATE . ... At the same time , ORG notes with regret that in DATE , the ORG rejected a similar application to open a department of NORP studies and NORP language and literature at ORG , on the grounds that the application – introduced by the local ORG DATE had been made by a body that supported terrorism .

ECRI recommends that the NORP authorities revise the wording of LAW , which prohibits the teaching of non - NORP mother tongues in schools except in accordance with provisions of international treaties . ECRI again emphasises that it should be possible for such tuition to be provided alongside tuition in the official language .

In addition , ORG strongly recommends that the NORP authorities pursue their efforts in favour of tuition in languages and dialects traditionally used in GPE . It recommends that full effect be given to the existing possibility of opening private courses , particularly by removing all undue administrative obstacles .

Schooling provided in NORP to children whose mother tongue is not NORP

ECRI again recommends that the NORP authorities look into the situation of children of non - NORP mother tongue and ensure that every effort is made to enable them to learn NORP , the language of instruction , properly , for example through the provision of additional courses or methods for teaching NORP as a second language . More broadly , ORG recommends that the authorities conduct research into the overall situation within the education system of children belonging to minority groups , in order to allow targeted measures to be taken to remedy any inequalities in this field .

ECRI recommends that the NORP authorities engage in dialogue with minority groups on the manner in which the concept of citizenship of ORG is taught in schools , in order to ensure that the desired message of inclusiveness is imparted without leading to a sense that diversity is unwanted . ”


Violation of Article 5 - Right to liberty and security

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

The applicant was born in DATE and lives in ORG .

On DATE the applicant was taken into custody by police officers from the Anti - Terrorist Branch of ORG on suspicion of membership of an illegal organisation , namely the Dev - Yol ( NORP Way ) . On DATE he was brought before the investigating judge at ORG , who ordered him to be detained pending trial . On CARDINAL DATE the public prosecutor at ORG filed an indictment against the applicant and CARDINAL other accused . Invoking Article CARDINAL of LAW , he accused the applicant of membership of an illegal armed organisation and of involvement in activities which undermined the constitutional order of the ORG .

The trial commenced before ORG . In the subsequent hearings the court refused to release the applicant on account of the nature of the alleged offence and the state of the evidence . On DATE ORG were abolished following a constitutional amendment , and the applicant ’s case was transferred to ORG . On DATE the applicant was released pending trial .


No violation of Art. 3 (substantive aspect);No violation of Art. 5;No violation of Art. 6;No violation of Art. 7;No violation of Art. 11;No violation of Art. 13;No violation of Art. 14

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

On DATE she joined an anti - NORP demonstration in the ORG area in GPE in which the applicants in the GPE and PERSON v. GPE and PERSON v. GPE cases ( see below ) also took part .

According to an affidavit sworn by the applicant before ORG on DATE , the demonstration of DATE was peaceful and was held on DATE of the NORP intervention in GPE in support of the missing persons and to protest against human rights violations .

The demonstrators gathered at the ORG school in GPE . After ORG ( ORG ) soldiers had shouted a warning to the demonstrators not to advance further , the applicant was seized by the hair , beaten and assaulted by NORP military personnel and/or other personnel acting under NORP control . The beating was inflicted with electrical batons by QUANTITY or CARDINAL policemen all over the applicant ’s body , in particular the head and back . CARDINAL of the blows caused a painful injury to the applicant ’s right arm and elbow , with loss of blood . She was then dragged to a small , stiflingly hot room in which other demonstrators were also being held . CARDINAL of the prisoners had been severely beaten and was unconscious .

The applicant and the other detainees were subsequently led through a hostile crowd that spat and swore at them to a bus that was waiting to take them to the so - called “ LOC ” . As she entered the garage her handbag was seized . She was forced to sit on the floor ; the toilet facilities were filthy . A crowd that had gathered outside the garage was swearing , shouting abuse and threats and throwing stones , some of which came through the corrugated iron roof . CARDINAL of the detainees , a doctor , treated the applicant ’s arm , which was still bleeding , with whatever he had to hand and bandaged it . CARDINAL of the female prisoners ( PERSON – see application no . MONEY ) was then beaten in front of the others , who remained silent , fearing for their own fate . A woman shouted that she was an NORP citizen and was released shortly afterwards .

While in the garage , the applicant was interrogated but refused to sign the statement , which was written in NORP . The interrogation took place in NORP and touched mainly on political subjects . DATE , DATE , she and the other detainees were given food and at the same time photographed and filmed by a television crew .

DATE , after being subjected to a body search , the applicant was taken to a court which remanded her in custody for DATE . She was transferred with other women who had been arrested at the same time to the GPE prison , where she was held in a cell with another woman . The conditions of detention were appalling , the cell was unbearably hot and during TIME the applicant and the other detainees were constantly checked and counted by the guards and as a result , were unable to sleep . The applicant went on hunger strike .

During TIME of CARDINAL DATE the applicant was taken to ORG for trial . The judge asked her and the other accused whether they wanted legal representation ; they replied that they would only accept as defence counsel a lawyer registered with the bar association of GPE . As a result , they were not assisted by a lawyer . The interpretation into NORP was poor and did not cover all the words used by the witnesses and the parties . Each time an accused tried to speak and give an explanation , she was interrupted . Although the applicant had never previously seen some of the exhibits that were produced at the trial ( notably a pair of scissors , gloves and a saw ) , CARDINAL of the prosecution witnesses said that he had found a penknife in her handbag . The applicant alleged that she had taken it with her to peel an apple and that the blade was not even QUANTITY long . She tried to explain the position to the judge but was not allowed to . She showed her bandaged arm in order to complain about the beating she had suffered , but an officer replied that she could have injured herself by falling down . After the trial the applicant was taken back to prison .

On DATE the court ordered the applicant to enter into a recognizance of MONEY as a guarantee that she would not commit further breaches of the peace for DATE . The trial judge noted that it was the second time the applicant had illegally entered “ GPE ” territory . Most of the accused , including the applicant , were also sentenced to CARDINAL days’ imprisonment and a fine of QUANTITY ( ORG DATE ( ORG ) ) , with DATE in prison in default of payment within TIME . After the public delivery of the judgment , they were returned to prison .

On DATE the applicant was released and taken by bus to southern GPE .

As a result of the beating described above , CARDINAL of the applicant ’s vertebrae were damaged . The doctors told her that the condition of her central nerve was continuously deteriorating and that no surgery could be carried out .

The Government alleged that the applicant had participated in a violent demonstration with the aim of enflaming anti - NORP sentiment . The demonstrators , supported by the NORP - Cypriot administration , were demanding that the “ GPE ” in GPE should be dismantled . Some carried NORP flags , clubs , knives and wire - cutters . They were acting in a provocative manner and shouting abuse . The demonstrators were warned in NORP and LANGUAGE that unless they dispersed they would be arrested in accordance with the laws of the “ GPE ” . The applicant was arrested by the NORP - NORP police after crossing the ORG buffer zone and entering the area under NORP - Cypriot control . The NORP - NORP police intervened in the face of the manifest inability of the NORP - Cypriot authorities and ORG in GPE to contain the incursion and its possible consequences .

No force was used against demonstrators who did not intrude into the “ GPE ” border area and , in the case of demonstrators who were arrested for violating the border , no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned . No one was ill - treated . It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing . Had the NORP police , or anyone else , assaulted or beaten any of the demonstrators , the ORG Secretary General would no doubt have referred to this in his report to ORG .

The applicant was charged , tried , found guilty and sentenced to a short term of imprisonment . She pleaded not guilty , but did not give evidence and declined to use the available judicial remedies . She was asked if she required assistance from a lawyer registered in the “ GPE ” , but refused and did not ask for legal representation . Interpretation services were provided at the trial by qualified interpreters . All the proceedings were translated into NORP .

NORP In his report of DATE on the ORG operations in GPE , the ORG Secretary General stated , inter alia :

“ A serious situation , however , arose in DATE as a result of a demonstration by NORP Cypriots in GPE . The details are as follows :

( a ) In TIME of DATE , some CARDINAL NORP Cypriot demonstrators , mostly women , forced their way into the ORG buffer zone in the ORG area of GPE . The demonstrators broke through a wire barrier maintained by ORG and destroyed an ORG observation post . They then broke through the line formed by ORG soldiers and entered a former school complex where ORG reinforcements regrouped to prevent them from proceeding further . A short while later , NORP - Cypriot police and security forces elements forced their way into the area and apprehended QUANTITY persons , CARDINAL of them women ;

( b ) The ORG school complex is situated in the ORG buffer zone . However , the NORP forces claim it to be on their side of the cease - fire line . Under working arrangements with ORG , the NORP - Cypriot security forces have patrolled the school grounds for DATE within specific restrictions . This patrolling ceased altogether as part of the unmanning agreement implemented DATE ;

( c ) In TIME of QUANTITY DATE , CARDINAL NORP Cypriots gathered at the main entrance to the ORG protected area in GPE , in which the ORG headquarters is located , to protest the continuing detention by the NORP - Cypriot authorities of those apprehended at PERSON . The demonstrators , whose number fluctuated CARDINAL , blocked all ORG traffic through this entrance until DATE , when the NORP - Cypriot authorities released the last QUANTITY detainees ;

( d ) The events described above created considerable tension in the island and intensive efforts were made , both at the ORG headquarters and at GPE , to contain and resolve the situation . On DATE , I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the ORG buffer zone as well as their responsibility to ensure that that area was not violated . I also urged the NORP - Cypriot authorities to release without delay all those who had been detained . On DATE , the President of ORG announced that he had conveyed to the representatives of all the parties , on behalf of the members of ORG , the ORG ’s deep concern at the tense situation created by the incidents of DATE . He also stressed the need strictly to respect the ORG buffer zone and appealed for the immediate release of all persons still detained . He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations . ”

The applicant produced CARDINAL photographs taken at different times during the demonstration on DATE . Photographs CARDINAL to CARDINAL were intended to show that , notwithstanding the deployment of the NORP - NORP police , the demonstration was peaceful . In photographs CARDINAL members of the NORP - NORP police are seen breaking up the ORG cordon . The final set of photographs show members of the NORP - NORP police using force to arrest some of the women demonstrators .

The NORP translation of ORG judgment of CARDINAL DATE indicates that the applicant , together with CARDINAL other women , was charged with CARDINAL offences : entering “ GPE ” territory without permission ( contrary to sections CARDINAL , DATE and DATE of Law No . CARDINAL/CARDINAL – see paragraph CARDINAL below ) and entering “ GPE ” territory other than through an approved port ( contrary to subsections CARDINAL ) and ( CARDINAL ) of the Aliens and Immigration Law – see paragraph CARDINAL below ) .

The judgment was given in the presence of the accused and of an interpreter . The trial judge noted the following :

( i ) the accused did not accept the charges against them and stated that they did not wish to use the services of a lawyer registered in the “ GPE ” ;

( ii ) some of the accused had fainted during the trial and had been taken to hospital and excused from attending the hearing ;

( iii ) the public prosecutor called CARDINAL witnesses , whose statements were translated into NORP for the accused ’s benefit ;

( iv ) the witnesses ( mainly police officers on duty at the time of the demonstration ) declared that the accused had illegally entered the “ GPE ” buffer zone , shouted abuse at the NORP - Cypriot forces , resisted arrest by pulling and pushing ; knives and other cutting objects had been found in the bags of some of the demonstrators who had been arrested ; in particular , the witnesses declared that the demonstrators had passed the barriers at the ORG observation post , broken the wooden door of a church and moved toward a water reservoir ; according to a map shown at trial , the area where the accused had entered was “ TRNC ” territory ;

( v ) the accused did not call any defence witnesses and did not address the court ;

( vi ) the accused had been told that they could cross - examine witnesses in turn and , if they so wished , choose one of their number to cross - examine the witnesses on behalf of all the accused ; however , they had not done so ;

( vii ) relying on the statements of the prosecution witnesses , ORG came to the conclusion that the accused had crossed the borders of the “ TRNC ” at an unapproved entry point and without permission and had resisted by various means the ORG and NORP forces which had tried to stop them ;

( viii ) the prosecution had proved its case beyond reasonable doubt , so that the accused were guilty on both counts ;

( ix ) in deciding on the sentence , ORG took into account the seriousness of the offence , and the fact that the accused had shown no remorse and continued to deny the validity of the “ TRNC ” .

Section CARDINAL of LAW reads as follows :

“ Where CARDINAL or more persons assembled with intent to commit an offence , or , being assembled with intent to carry out some common purpose , conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace , or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly .

It is immaterial that the original assembling was lawful if , being assembled , they conduct themselves with a common purpose in such a manner as aforesaid .

When an unlawful assembly has begun to execute the purpose , whether of a public or of a private nature , for which it assembled by a breach of the peace and to the terror of the public , the assembly is called a riot , and the persons assembled are said to be riotously assembled . ”

According to section CARDINAL of LAW , any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for DATE .

Section CARDINAL of the Criminal Code provides :

“ Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour , and is liable to imprisonment for DATE , and his arm or weapons shall be forfeited . ”

According to LAW , it is an offence to carry a knife outside the home .

The relevant part of LAW , section CARDINAL of GPE states :

" ( CARDINAL ) Any officer may , without warrant , arrest any person -

( b ) who commits in his presence any offence punishable with imprisonment ;

( c ) who obstructs a police officer , while in the execution of his duty ... "

Section CARDINAL of Law No . CARDINAL/CARDINAL states :

" ... Any person who enters a prohibited military area without authorization , or by stealth , or fraudulently , shall be tried by a military court in accordance with LAW ; those found guilty shall be punished . "

Subsections CARDINAL ( CARDINAL ) and ( CARDINAL ) of the Aliens and Immigration PERSON read as follows :

“ CARDINAL . No person shall enter or leave the Colony except through an approved port .

Any person who contravenes or fails to observe any of the provisions of subsections ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding QUANTITY or to both such imprisonment and fine . ”


CASE OF KOHLHOFER AND MINARIK v. THE CZECH REPUBLIC

Remainder inadmissible;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - finding a violation sufficient;Pecuniary damage - claim dismissed

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

Through the acquisition of shares before DATE , the first CARDINAL applicants became minority shareholders of Českomoravský cement , a.s . , a joint stock company incorporated under NORP law .

On DATE LAW ( hereinafter “ the CC ” ) was amended . In accordance with its newly introduced LAW , a general meeting of a joint stock company was empowered to decide to wind up the company and transfer all its assets to a shareholder who owned shares representing PERCENT of the company 's share capital ( “ the main shareholder ” ) . An asset transfer contract between the main shareholder and the company was to be concluded to that end and compensation paid to the minority shareholders .

On DATE the general meeting of the company adopted , by votes of the main shareholder , a resolution on the winding - up of the company and on the transfer of all its assets to the main shareholder ( together also referred to as “ the transfer ” ) .

On DATE the applicants filed an action to have that resolution and the asset transfer contract set aside with ORG ( městský soud ) . They asserted that the resolution had been adopted contrary to law , treaties concerning the encouragement and reciprocal protection of investments and their property rights . They informed the court administering the commercial register ( obchodní rejstřík ) about this step .

On DATE the court administering the commercial register ( rejstříkový soud ) approved the transfer . No hearing was held prior to that decision .

On DATE the applicants contested the decision to register the transfer before ORG ( Ústavní soud ) , alleging an infringement of the right to a fair trial and their property rights . They claimed not to have been able to raise their objections to the general meeting resolution in a hearing during the non - contentious proceedings preceding the delivery of the decision . They invited the court to strike down inter alia Articles CARDINALh(CARDINAL ) and ( CARDINAL ) and PERSON of the ORG .

On DATE ORG in its decision no . IV . ÚS CARDINAL/CARDINAL rejected the applicants ' appeal without holding a hearing . It found that the applicants were not entitled to participate in the proceedings as the task of the court in charge of the commercial register had been to decide on the rights of the company , not on theirs . It noted that that court had the applicants ' arguments in their action to set aside at its disposal and had taken them into consideration before delivering the impugned decision , whilst reviewing the lawfulness of the resolution as a preliminary question . It held that the power to stay the proceedings was still available to that court under the law as it stood at the relevant time . ORG dismissed the applicants ' second claim according to which that decision amounted to other interference by public authority into their right to access to a court . Referring to Article CARDINALh of the ORG , it found the application of LAW in conformity with constitutional law . In this regard , the court pointed to procedural safeguards enshrined in Articles CARDINAL , ORG , CARDINAL , CARDINAL and CARDINALp of the ORG which were available to the applicants , and emphasised the aim of the regulation providing for legal certainty and expeditious transformation of companies . As for the applicants ' challenge to the law providing for the winding - up and the transfer on the ground of insufficient protection of the rights of minority shareholders , the court did not examine it since it went beyond the scope of that court 's review defined by the applicants ' constitutional appeal contesting the decision in which the court in charge of the commercial register had approved the registration of the winding - up and the transfer at the commercial register , but not any decisions adopted in other proceedings available to the complaining minority shareholders .

On DATE ORG dismissed the applicants ' action lodged on DATE . Having noted that the court in charge of the commercial register had approved the registration of the transfer , ORG , referring to LAW , refused to deal with the applicants ' assertions of unlawfulness of the impugned general meeting resolution , their principal allegation being that the resolution had been adopted by the main shareholder whose voting rights had been suspended . As for the applicants ' plea of invalidity of the asset transfer contract , namely the insufficient number of experts commissioned for the expert report on the compensation and the determination of the decisive day ( rozhodný den ) , the court expressed the view that the validity of the asset transfer contract must have been examined as a preliminary question by the court approving the registration of the transfer into the commercial register . At the same time , having reviewed the contract , ORG found that the determination of decisive day complied with the ORG . Having interpreted relevant provisions of the ORG , the court further found that the law did not require that more experts be commissioned for the purposes of assessing the compensation to be paid by the main shareholders to the applicants . Finally , the court examined and dismissed the applicants ' claims that the compensation had not been properly determined as unfounded or reviewable only by a court reviewing the compensation in separate proceedings .

On DATE ORG ( vrchní soud ) , sharing the legal view of the court of first instance , upheld ORG judgment of DATE .

The proceedings are now pending before ORG ( PERSON ) . According to the applicants , they have no prospect of success before that jurisdiction due to its settled case law .

According to the Government , the applicants filed with a court actions under LAW whereby they asserted that the compensation paid for the transfer pursuant to Article CARDINAL ) of the ORG was not adequate and claimed the remainder thereof . According to the Government , these proceedings and the set - aside proceedings are still pending .

The third applicant owned PERCENT of the share capital of YTONG , a.s . , a joint stock company incorporated under NORP law .

On DATE the general meeting of that company adopted , by votes of the main shareholder , a resolution on the winding up of the company and the transfer of all its assets to the main shareholder .

On DATE the third applicant filed with ORG ( krajský soud ) an action to have the resolution set aside , asserting that it had been adopted contrary to the applicable law , treaties concerning the encouragement and reciprocal protection of investments and their property rights . Asserting the unlawfulness of the asset transfer contract on account of its clause reserving for arbitration jurisdiction over disputes concerning the value of the compensation , she further emphasised a number of irregularities of the resolution . She informed the court administering the commercial register about the action .

On DATE the court in charge of the commercial register approved the registration of the transfer . No hearing was held before that decision , which was not served on the third applicant as she did not have standing to participate in the proceedings .

On DATE the ORG rejected the third applicant 's appeal contesting that decision . It ruled that since the applicant did not have standing to take part in the impugned proceedings , she was not entitled to appeal their outcome .

On DATE ORG , relying on DATE ) of the ORG , discontinued the set - aside proceedings without examining the merits .

According to the ORG , the third applicant filed with a court an action under LAW whereby she asserted that the compensation for the transfer paid pursuant to Article CARDINAL ) of the ORG was not adequate and claimed the remainder thereof .

According to the parties , these proceedings are after dismissive rulings of courts of first CARDINAL instances pending before ORG .

On DATE ORG rejected the applicant 's appeal on points of law and upheld ORG ruling of CARDINAL DATE .

On DATE ORG rejected the applicant 's constitutional appeal , in which the applicant claimed an impairment of her right to a fair trial in the set - aside proceedings by reason of the limitation on access to court brought about by Article CARDINALh(CARDINAL ) of the ORG . ORG found that ORG had not erred in its impugned decision of DATE and that neither the applicant 's right to a fair trial nor any other constitutional right had been breached .

The third applicant also raised the claim for compensation , together with CARDINAL other petitioners , before an arbitration tribunal to which she was referred in the decisions of the ordinary courts . The arbitration proceedings were discontinued and the petition rejected on DATE for lack of jurisdiction .

The first applicant was a minority shareholder of ORG , a.s . , a joint stock company incorporated under NORP law .

On DATE the company 's general meeting decided to wind up the company and transfer its assets to the main shareholder .

On DATE the applicant brought an action in ORG ( krajský soud ) to have the general meeting resolution and the asset transfer contract set aside . He argued that the general meeting resolution was void on the grounds of unlawfulness as the main shareholder had taken part in the vote although not entitled to do so , the resolution had been adopted despite the fact that the shares had been lodged as securities , and the compensation payable to minority shareholders had been determined improperly . He further asserted a violation of treaties concerning the encouragement and reciprocal protection of investments and his right to the peaceful enjoyment of his possessions .

On DATE ORG , acting as a court in charge of the commercial register , approved the registration of the transfer at the commercial register without holding a public hearing .

On DATE an appeal by the first applicant against this decision was rejected by ORG , which found that the minority shareholders were not parties to the proceedings concerning the approval of the registration at the commercial register .

On DATE ORG stayed the set - aside proceedings and asked ORG to strike down Article PERSON and other provisions of LAW .

On an unspecified date the first applicant filed a constitutional appeal alleging a violation of his right to judicial protection under LAW ( Listina základních práv a svobod ) . He claimed that he had not been allowed to act as a party in the proceedings conducted by the court in charge of the commercial register and had been prevented de facto , by ORG ) , ORG ) , CARDINAL of the ORG and CARDINAL ) of LAW ( hereinafter “ the ORG ” ) , from acting before the court in the proceedings to set aside the general meeting resolution . He further contended that the relevant law was contrary to ORG . The first applicant requested that the aforementioned provisions be struck down as being contrary to LAW .

On DATE ORG by its decision no . II . ÚS CARDINAL/CARDINAL rejected the applicant 's constitutional appeal against the decision approving the registration of the transfer at the commercial register . It found that , under LAW in charge of the commercial register is entitled to review as a preliminary question the lawfulness and validity of a general meeting resolution on the basis of which a registration in the commercial register is to be made . It held that the right to judicial protection was not denied to the first applicant having regard to the remedies enshrined in Article CARDINAL taken in conjunction with Articles CARDINALh , CARDINAL , CARDINAL and CARDINALp of the ORG . Therefore , shareholders of a joint stock company could seek protection of their rights before an independent and impartial court by another way than by taking part in the proceedings held before the court in charge of the commercial register .

On DATE the Plenary of ORG rejected by its decision no . PERSON . ÚS CARDINAL/CARDINAL the request of ORG that it should strike down , inter alia , LAW . It found that ORG request was ill - founded as LAW ORG could no longer be applied by ORG on account of LAW , which barred that court from deciding the case before it on the merits once the general meeting resolution on the winding - up of the company and the transfer had been inserted into the commercial register . CARDINAL constitutional judges joined their dissenting opinions to the Plenary 's decision .

On DATE the ORG , relying on Article CARDINALh(CARDINAL ) of the ORG discontinued the set - aside proceeding without examining the merits as the transfer was registered in the commercial register .

On DATE the Olomouc High Court upheld that decision of ORG . Referring to ORG decision no . PERSON . ÚS CARDINAL/CARDINAL , ORG found ORG ) and ( c ) and CARDINALh(CARDINAL ) and ( CARDINAL ) , and LAW conform with NORP law including LAW . The first applicant did not pursue the case before higher instances . He alleged to have no prospect of success due to the settled case law of ORG and ORG .

According to the Government , the applicant filed with a court an action under LAW whereby he asserted that the compensation for the transfer paid pursuant to Article CARDINAL ) of the ORG was not adequate and claimed the remainder thereof According to the Government , these proceedings are still pending .

Article CARDINAL provides that ORG is the judicial body responsible for the protection of constitutionality .

Article CARDINAL ) provides that all national authorities and individuals are bound by enforceable rulings of ORG .

Article CARDINAL ) provided inter alia that facts inserted in the commercial register became effective as of the date on which they were made public .

In accordance with LAW a court administering the commercial register made a registration into the commercial register public .

Article CARDINAL ) gave shareholders the right to contest a general meeting resolution by means of an application to set aside if it was deemed to contravene the law , a deed of incorporation or by - laws . An application to set aside could be lodged within DATE or , in certain circumstances , DATE of the adoption of the resolution . The provision was applicable to general meeting resolutions of joint stock companies by virtue of Article CARDINAL ) .

Under LAW ) the court could not set aside a general meeting resolution if a court in charge of the commercial register had recorded a transfer of the company 's assets in the commercial register .

Article CARDINAL(CARDINAL ) provided , inter alia , that persons who had suffered damage by a resolution of the general meeting adopted contrary to law , the deed of incorporation or by - laws , were entitled to claim damages and/or just satisfaction for an impairment of fundamental shareholders ' rights . This right could be asserted even if a court did not declare the general meeting resolution void for CARDINAL of the reasons set out in LAW . Such a claim had to be made before a court within the same time - limit as applied for introducing an application to set aside of a general meeting resolution , or within DATE on which a court decided on such an action .

Under LAW ) everyone is bound by an enunciation of decision delivered pursuant to LAW , ( CARDINAL ) or ( CARDINAL ) .

Article CARDINAL(CARDINAL ) provides that if a resolution of general meeting was not contested under LAW CARDINAL(CARDINAL),(CARDINAL ) or such a claim was not upheld , the resolution may be reviewed only in proceedings on the registration of the resolution in the commercial register , unless the resolution involves amendments of by - laws or a deed of incorporation contrary to law .

Pursuant to Article CARDINALa(CARDINAL ) proceedings to set aside a contract providing for a merger may be brought only if an application to set aside the relevant general meeting resolution has been filed .

Under Article CARDINALh(CARDINAL ) an action to set aside a general meeting resolution , or a contract , on merger could not be filed if a registration of the merger into the commercial register had been allowed by a court in charge thereof .

By DATE ) , proceedings to set aside a general meeting resolution , or a contract , on merger brought prior to an registration of the merger in the commercial register could be continued after the registration had been made only if the plaintiff changed his or her action so as to seek damages or an adequate payment for surrendered shares pursuant to LAW , provided that those claims had not previously been raised .

Under paragraph ( CARDINAL ) of Article CARDINALk , if the exchange ratio for shares together with financial compensation was not adequate , shareholders of a merging company were entitled to seek compensation from an acquiring company . The ratio decidendi of a judicial decision granting compensation to a shareholder was by virtue of paragraph ( CARDINAL ) thereof binding , in respect of remaining shareholders , upon an acquiring company .

Pursuant to Article CARDINALl members of boards of directors and supervisory boards of companies involved in a merger , and experts who drew up an expert report for these companies were liable jointly and severally for damages caused by a breach of their duties during the merger .

Article CARDINAL ) empowered a general meeting of a joint stock company to decide to wind up the company and transfer all its assets to a shareholder owning shares which represented PERCENT of the company 's share capital ( the main shareholder ) .

Under Article CARDINAL ) the main shareholder was obliged to provide other shareholders with adequate compensation paid in cash in order to settle such a transfer .

Article CARDINAL ) provided , inter alia , that Articles CARDINAL ) , PERSON and DATE were to be applied appropriately to the winding - up of a company and the transfer of its assets to its main shareholder .

According to Article CARDINAL ) , among other obligations , a company must have concluded a contract for the transfer of its assets with its main shareholder . Shareholders must have been thereby informed of their right to apply for review by a court of the value of the compensation . Article CARDINAL ) and ( CARDINAL ) governing an exchange of shares pending mergers were to be applied appropriately .

The Act which entered into force on DATE replaced inter alia the provisions of the ORG governing the winding up of a company and the transfer of its assets to its main shareholder , ORG CARDINALh ( CARDINAL ) and ( CARDINAL ) and CARDINALp ( CARDINAL ) of the ORG being among them .

Under Article CARDINAL(CARDINAL ) a court may declare a general meeting resolution on the transfer null and void only until the time when the transfer is inserted into the commercial register . Article CARDINAL ) provides that such a registration may not be rescinded .

Under LAW ) a court is empowered to stay proceedings should a legal issue which might be relevant for its decision be examined in other pending proceedings . Courts deciding in proceedings on a registration into the commercial register ceased to have that power upon the amendment of that provision , which came into force on DATE .

DATE ) defines the persons having standing to participate in proceedings on a request for a registration into the commercial register . Only the requesting entrepreneur and the persons whose names are required to be inserted into the commercial register have such standing .

Under Article CARDINAL ) a court in charge of the commercial register is obliged to proceed so as to take steps to prepare for delivery of decision within DATE from DATE when the request was lodged .

According to Article GPE ) a court in charge of the commercial register may decide the matter before it without holding a hearing if , inter alia , it can do so on the basis of deeds before it which have been written pursuant to a particular statute ( deeds by notary public etc . ) .

By virtue of Article CARDINALd a court to which a case was remitted following a quashing judgment of ORG is bound by a legal view enshrined therein .

Section CARDINAL(CARDINAL)(a ) stipulates that a constitutional appeal may be submitted : a ) pursuant to Article CARDINAL(l)(d ) of the LAW , by a natural or legal person , if he or she alleges that his or her fundamental rights and basic freedoms guaranteed in the constitutional order have been infringed as a result of the final decision in proceedings to which he or she was a party , of a measure , or of some other encroachment by a public authority .

By virtue of Section CARDINAL(CARDINAL ) if the Constitutional Court grants the constitutional appeal of a natural or legal person under Article CARDINAL(l)(d ) of the LAW , it shall : a ) quash the contested decision of the public authority , or b ) if a constitutionally guaranteed fundamental right or basic freedom was infringed as the result of an encroachment by a public authority other than a decision , enjoin the authority from continuing to infringe this right or freedom and order it , to the extent possible , to restore the situation that existed prior to the infringement .

ORG is by virtue of that legislation the highest NORP court of ordinary jurisdiction with the task inter alia to settle case law of ordinary courts .

DATE . In its judgment of DATE ORG , interpreting Article CARDINAL ) of the LAW , rejected the assumption according to which its views enshrined in reasoning of its judgments are legally irrelevant . The court held inter alia that an a priori disrespect by ordinary courts towards such views raises doubts whether ordinary courts decide in conformity with LAW , according to which their principal task is to ensure the protection of rights pursuant to law . Ordinary courts declining to follow such views must be aware that their rulings will be most probably brought by ORG in line with its existent case law . ORG added in this regard that an a priori disrespect towards existent case law , resulting in different decisions on a same matter , contravenes the principle of legal certainty , which is an indispensable component of constitutional law and the rule of law .

In this decision of CARDINAL DATE in which it rejected an appeal against a court 's decision approving the registration of a transfer of company 's assets to the main shareholder at the commercial register and a request to strike down ORG ) , CARDINALh(CARDINAL ) and CARDINAL of the ORG , ORG held as follows :

“ The law providing for the winding up of a company and the transfer of its assets to its main shareholder is at the very limit of constitutional conformity owing to the imperfect coordination of proceedings for a registration into the commercial register with proceedings to set aside an asset transfer contract ( filed together with an application to set aside a general meeting resolution ) which makes possible the irreversible registration of [ the winding up of a company and the transfer of its assets to its main shareholder ] into the commercial register without examination of an action to set it aside . It can not be said , however , that minority shareholders have no remedy at their disposal .. .. [ A]ccording to Article CARDINAL(CARDINAL ) of the [ ORG ] , they can seek damages and just satisfaction .

The law governing proceedings before a court in charge of the commercial register is proportionate to the aim and objective of the legislation providing for transformations of companies , whose purpose is to accommodate expeditious registration of those transformations , made on the basis of the agreement among the companies ' shareholders , into the commercial register , with regard to the fact that such a transformation is from a certain moment irreversible owing to legal , economic and technical aspects of that process .

... [ T]he impugned decision of the court in charge of the commercial register did not amount to unconstitutional interference with the appellant 's property rights as he retained access to legal remedies for the protection of his ownership rights to the shares in a proportionate manner .. .. [ L]egitimate expectations of shareholders do not have the same intensity as those of owners of other property . .. [ as ] the nature of a joint stock company implies risks of a change in the shareholders ' status ...

The gist of the appeal consists in the applicant 's disagreement with the law providing for [ the winding - up of a company and the transfer of its assets to its main shareholder ] as such , in particular with the insufficient guarantees for minority shareholders . ORG , however , by LAW of LAW is not empowered to examine these complaints as the appeal at hand contested only the decision adopted by the court in charge of the commercial register in the proceedings on the registration of the winding up and the transfer into the commercial register . [ Examination ] of these complaints would go beyond the scope of that court 's review defined by the applicants ' constitutional appeal contesting the decision of the court in charge of the commercial register which decided on the registration in the commercial register , not on decisions adopted in other proceedings available to the complaining minority shareholders . ”

In this decision ORG upheld lower court 's views according to which a legal impediment , enshrined in LAW taken in conjunction with Article CARDINAL ) thereof , and Article PERSON ) of the ORG taken in conjunction with Article CARDINAL ) thereof , barred courts from setting aside general meeting resolutions and asset transfer contracts after such an asset transfer had been recorded into the commercial register .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant is the heir of his parents , who owned several properties located on the territory of the former GPE ( “ the GPE ” ) . In DATE his parents left the GPE and their property was expropriated .

NORP In DATE the applicant sought legal advice from GPE and ORG law firm concerning restitution of the property . The lawyers did not inform him about the time - limit ( ORG ) for restitution claims , which expired on DATE . Therefore , when he applied for restitution of the property on CARDINAL and DATE , the ORG and ORG for ORG ( Amt zur Regelung offener Vermögensfragen , “ ORG ” ) rejected his applications because they had been lodged too late .

On DATE the applicant brought proceedings against P.A. and PERSON before ORG claiming damages for their failure to inform him about the time - limit for his restitution claims .

On DATE and CARDINAL DATE ORG held oral hearings .

On DATE ORG dismissed the applicant ’s action , finding that there had been no breach of the lawyers’ duties . On DATE the judgment was served on the applicant ’s lawyers .

On DATE the applicant lodged an appeal with ORG .

On DATE the applicant asked the court to extend the time - limit for submitting his grounds of appeal . The limit was extended until DATE .

On DATE the applicant ’s legal counsel informed the court that she would no longer be representing the applicant . On DATE the applicant , represented by another law firm , submitted the grounds of appeal and requested legal aid .

On DATE ORG refused to grant the applicant legal aid . A complaint by the applicant against that decision was dismissed on DATE .

On a request by the applicant of CARDINAL DATE , the court postponed its hearing scheduled for DATE to DATE .

On DATE the applicant ’s lawyer informed the court that he would no longer be acting for the applicant and asked it to postpone a hearing scheduled for DATE . However , owing to the illness of CARDINAL of the judges sitting in the applicant ’s case , ORG postponed this hearing to DATE .

On DATE ORG dismissed the applicant ’s appeal . On DATE the judgment was served on the parties .

On DATE ORG asked for the files to be transmitted from ORG .

On DATE ORG found that the lawyers had breached their duties . It quashed the judgment of ORG and remitted the case to that court for fresh consideration .

On DATE the applicant increased his claim , seeking PERCENT interest for loss of the profit he would allegedly have received had he placed money resulting from his restitution claims in a bank account . Subsequently , until DATE , the applicant reformulated or increased his compensation claims a further CARDINAL times .

On DATE the applicant ’s lawyer announced that he had ceased representing the applicant . Thereafter , until DATE , the applicant changed his legal representative CARDINAL times , sometimes within a period of DATE .

On DATE ORG scheduled a first hearing for DATE .

DATE and QUANTITY DATE the applicant unsuccessfully complained CARDINAL times to the President of ORG about the course of the proceedings .

On DATE and DATE the applicant lodged ORG third - party complaints ( PERSON ) against CARDINAL lawyers who had previously represented him . Some of them joined the proceedings as interveners on the side of the defendants . However , on DATE the applicant withdrew all of these complaints .

DATE and DATE the applicant asked the court CARDINAL times to grant him an extension of the time allowed for making further submissions .

On DATE ORG granted the applicant ’s request for legal aid in part and decided to request information from the ORG and ORG before commissioning an expert report on the determination of the GPE market values .

On DATE ORG provided the information requested .

On the court ’s request , on DATE ORG recommended the appointment of ORG as expert .

On DATE the applicant complained of the decision awarding legal aid only in part .

DATE and DATE the applicant lodged CARDINAL unsuccessful challenges for bias against several judges involved in his proceedings before ORG . His respective requests made to the court to reconsider its decisions were rejected between DATE and DATE .

On DATE ORG had requested further information from the GPE and ORG , which they provided on DATE . On DATE the court forwarded that information to the parties .

On DATE ORG expressed doubts as to the applicant ’s capacity to be a party to an action ( PERSON ) .

On a request by the applicant on CARDINAL DATE the court postponed a hearing scheduled for DATE to CARDINAL DATE .

On DATE the applicant asked the court to postpone a hearing scheduled for DATE . However , on CARDINAL DATE the court refused that request and held the hearing .

On DATE ORG postponed a further hearing scheduled for DATE to DATE in view of the applicant ’s challenges for bias of DATE .

Following further challenges for bias by the applicant , or his requests to reconsider ORG rejection of these challenges , the court postponed a scheduled hearing CARDINAL times and finally held it on CARDINAL DATE . At the hearing , it ordered the preparation of a psychiatric expert report on the applicant ’s capacity to be a party to an action .

DATE and DATE further necessary information was delivered by ORG ( Ausgleichsamt ) , the ORG and ORG and ORG ( GPE PERSON Vermögensfragen ) at the request of the court .

On DATE an additional examination of the applicant by another expert , ordered by ORG , took place , and on CARDINAL DATE the psychiatric expert gave his report , finding that the applicant was fit to be a party to an action .

On DATE ORG held an oral hearing , and on DATE it updated its decision of DATE and appointed the expert , ORG , to determine , by DATE , inter alia , the market value of the properties in question .

On DATE the applicant asked the court to amend its decision of DATE .

On DATE ORG extended the time - limit for ORG to deliver her expert report until DATE , because she was ill .

On DATE the applicant challenged the expert for bias . On DATE ORG dismissed his objection as being unfounded , and on DATE the court rejected a request by the applicant to reconsider its decision .

On DATE ORG urged the expert to speed up the preparation of her report .

On DATE B.P. produced her reports , which she supplemented at the court ’s request on DATE .

On DATE ORG held a further oral hearing during which it heard evidence from , inter alia , the expert concerning the findings of her report . During the hearing the defendants made further submissions , which the court considered to be relevant and not made too late and authorised both parties to make further submissions in this connection .

In a partial judgment ( Grund- und ORG ) of DATE ORG ordered the defendants , inter alia , to pay the applicant MONEY ( ORG ) in respect of those properties which could have been returned to him under LAW . In respect of the properties subject to indemnification under LAW , it decided to request further information from the authorities .

On DATE and DATE the authorities provided the information .

DATE . On DATE ORG postponed a hearing scheduled for DATE to CARDINAL DATE on the applicant ’s request .

On DATE ORG held an oral hearing .

On DATE and CARDINAL DATE the applicant unsuccessfully asked the court to reopen the hearing .

In its judgment ( PERSON ) of CARDINAL DATE ORG ordered the defendants to pay the applicant a further ORG CARDINAL,CARDINAL as compensation for the loss of indemnification under LAW . It also fixed the total amount of the claim in the appellate proceedings ( EUR CARDINAL ) , calculated on the basis of the value of all claims that the applicant had made throughout the proceedings , and ordered him to pay CARDINAL of the costs of the proceedings .

On DATE the applicant asked ORG to reconsider its decision concerning the division of the court costs . On DATE the court dismissed his request as unfounded .

On DATE the applicant asked ORG to grant him leave to appeal on points of law .

On DATE ORG refused to grant him legal aid because his proposed appeal on points of law lacked any prospect of success .

On DATE the applicant asked ORG to reconsider its decision . The court rejected his request on CARDINAL DATE .

On DATE ORG declined to consider the applicant ’s first constitutional complaint in which he complained about the length of the proceedings before ORG . The court found that , despite some shortcomings in the conduct of the proceedings , their duration could still be considered to be acceptable given the extraordinary legal and factual complexity of the case ORG had had to deal with issues which were normally examined by the administrative courts and which dated back to the time of the former GPE ) and considering the applicant ’s conduct ( numerous challenges for bias , changes of lawyer and modification of his claims ) . It anticipated that ORG would complete its consideration of the case in DATE .

On DATE the applicant lodged a further constitutional complaint , which ORG declined to consider on ORG CARDINAL DATE , stating that there was no appearance of a violation of the applicant ’s fundamental rights .

On CARDINAL DATE ORG fixed the defendants’ costs in the proceedings to be paid by the applicant .

On DATE the applicant asked ORG to fix the costs in the proceedings to be paid by the defendants .

On DATE ORG rejected a complaint by the applicant against ORG decision of DATE . On DATE ORG served the decision on the applicant ’s lawyers .

On DATE ORG declined to consider a constitutional complaint by the applicant concerning ORG alleged refusal to send him a copy of the decision of DATE and ORG refusal to fix his costs in the proceedings .

On DATE ORG fixed the costs in the proceedings to be paid by the defendants . The applicant unsuccessfully challenged that decision several times .

On DATE the applicant lodged a complaint alleging a breach of his right to be heard .

On DATE ORG declared the applicant ’s complaint inadmissible because he had failed to lodge it within the DATE time - limit .

On DATE , without giving any reasons , ORG declined to consider a constitutional complaint by the applicant concerning all the decisions given by the courts since DATE .

On DATE ORG ordered the applicant to pay the court fees ( ORG CARDINAL ) in respect of his complaints against the costs fixed in the proceedings .

DATE . On DATE the applicant complained about that order , but on DATE ORG rejected his complaint .

On DATE ORG declined to consider the applicant ’s constitutional complaint on grounds of inadmissibility .

NORP In DATE the defendants proceeded with the enforcement of ORG costs order of DATE .

On DATE , following a request by the applicant , ORG provisionally ordered a stay of the enforcement proceedings without giving any reasons .

On DATE the ORG quashed ORG judgment because the applicant ’s personal situation did not warrant a stay of the enforcement proceedings .

ORG über die GPE offener Vermögensfragen / Vermögensgesetz ) provides that persons whose property was unlawfully expropriated during the time of the GPE are in principle entitled to restitution , unless the property was purchased in good faith by a third party . In such cases the former owners have a right to financial indemnification under the LAW governing indemnification pursuant to ORG ) .