Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Speediness of review);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence in person;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

András Sajó;Anatoly Kovler;Ann Power-Forde;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Guido Raimondi;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Julia Laffranque;Luis López Guerra;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen

The applicant was born in DATE and is currently serving a prison sentence in correctional facility no . IK-CARDINAL in Tavda , in the GPE region .

On DATE the applicant was arrested on suspicion of abduction involving an organised criminal group and he was placed in detention . DATE , the relevant prosecutor ordered his detention pending trial . On DATE the applicant was officially charged .

On DATE he was further charged with abduction , extortion , and illegal acquisition and possession of firearms and drugs .

On DATE the case file was forwarded to ORG . ORG returned the case file to the prosecutor ’s office , noting that the bill of indictment was not translated fully into the NORP language .

On DATE the prosecutor ’s office forwarded the amended bill of indictment and the case file to ORG , which received it on DATE . DATE , it was transferred to ORG of GPE .

The first trial hearing was scheduled for DATE , but was adjourned owing to the failure of the other defendants’ counsel to appear in court , as was the following hearing , scheduled for DATE . Of CARDINAL subsequent hearings , CARDINAL were adjourned at the applicant ’s request and CARDINAL owing to the failure of the victim and witnesses to appear in court .

By a decision of CARDINAL DATE LOC remitted the case to ORG for an additional investigation .

On DATE the case file was sent to ORG of GPE for trial . The hearing scheduled for DATE was adjourned owing to the failure of the witnesses and the applicant ’s counsel to appear in court . Of CARDINAL subsequent hearings scheduled DATE and DATE , CARDINAL were adjourned because the applicant , who in the meantime had been released on bail ( on DATE ) , failed to appear in court , CARDINAL owing to the same failure on the part of the defendants , their counsel and certain witnesses and CARDINAL because the presiding judge was involved in the examination of another case .

By a decision of CARDINAL DATE ORG remitted the case to ORG for further investigation . On DATE , upon an appeal by the prosecutor , ORG quashed that decision and remitted the case to ORG .

The first hearing after the case file was returned to ORG was scheduled for DATE . It did not take place because the presiding judge was involved in the examination of another case . Of CARDINAL subsequent hearings scheduled DATE and DATE ( the last court hearing ) , CARDINAL did not take place because the judge was , once again , involved in the examination of another case and CARDINAL because either the prosecutor or some of the defendants were ill . Requests by the parties DATE by the defence , including the applicant ’s counsel , and CARDINAL by the prosecutor – caused another CARDINAL adjournments . CARDINAL hearings were postponed owing to the failure of several participants to appear in court . The applicant , who was back in custody at the time , did not appear on QUANTITY occasions . Another adjournment occurred because the applicant ’s lawyer left the courtroom without permission . CARDINAL hearing was postponed for reasons not evident from the file . In DATE the court set aside the cases of CARDINAL defendants for independent assessment and proceeded with the examination of the applicant ’s case . By a decision of CARDINAL DATE the court disjoined the cases against CARDINAL other co - defendants .

All the above hearings concerned procedural issues . The first hearing on the merits of the case took place on DATE . At the beginning of this hearing the applicant repeatedly challenged the presiding judge by questioning her impartiality . The judge ordered that he be removed from the courtroom for improper behaviour . The applicant attempted to dismiss his lawyer . The judge , however , refused to recognise the dismissal and the applicant ’s counsel continued to represent him . On DATE , on CARDINAL , CARDINAL and CARDINAL DATE and on DATE the court examined witnesses and studied the documents in the file . After the completion of the evidence and when the prosecutor and the applicant ’s counsel had made their submissions , the applicant was readmitted to the courtroom to make his final statement .

By a judgment of CARDINAL DATE ORG convicted the applicant of abduction , extortion and illegal acquisition and possession of firearms and drugs . It sentenced him to MONEY imprisonment . The court further ordered the repayment of the bail to the applicant ’s wife ( see paragraph CARDINAL below ) .

On DATE the applicant ’s counsel lodged an appeal against the trial court ’s judgment . By a judgment of CARDINAL DATE ORG allowed the appeal in respect of the charge of illegal acquisition and possession of drugs for lack of evidence . It upheld in substance the conviction in respect of the other charges and reduced the sentence to CARDINAL years’ imprisonment .

By a decision of CARDINAL DATE the Vyaznikovskiy Town Court of LOC released the applicant on parole .

It appears that in DATE the applicant was again arrested on suspicion of having committed a criminal offence . He was subsequently convicted and is currently serving a prison sentence .

Following the applicant ’s arrest on DATE ( see paragraph CARDINAL above ) , on DATE the chief investigator authorised his detention pending investigation . In particular , the investigator noted that he had had regard

“ ... to the fact that [ the applicant ] is suspected of having committed an extremely serious offence entailing a custodial sentence , and that , if released , he might abscond and , as a result , interfere with the establishment of the truth , or commit another offence . ”

By a decision of DATE the prosecution authorities extended the detention of the applicant and his CARDINAL co - accused until DATE . The grounds invoked in the extension order were the gravity of the charges against them and the potential risks of their absconding , obstructing the course of justice , putting pressure on the witness and reoffending .

By decisions of CARDINAL DATE and DATE of the prosecution authorities , the custodial measure , in relation to all CARDINAL co - accused , was prolonged until DATE and DATE respectively . The wording of the decisions was identical to that used in the decision of DATE .

It appears that there was no formal order authorising the applicant ’s detention during the period DATE and DATE . On DATE the Kuntsevskiy ORG of GPE received the casefile fixed the trial for DATE and ruled that the defendants’ “ measure of restraint should remain unchanged . ”

On DATE the Kuntsevskiy ORG of GPE , when remitting the case to the prosecutor ’s office , ordered that the applicant and CARDINAL other defendants remain in custody . The court cited no reasons for ordering such detention . On DATE ORG upheld the decision of DATE on appeal .

On DATE and DATE the prosecution authorities , having reproduced the reasoning contained in the decisions of CARDINAL August and DATE , extended the detention of the applicant and his coaccused until DATE and DATE respectively .

On DATE the investigator in charge ordered the applicant ’s release on bail . The relevant part of the decision reads :

“ In view of the completion of the investigation , [ the applicant ] will not be able to obstruct the course of justice and his appearance in court can be secured by bail in the amount of MONEY ” .

By a decision of CARDINAL DATE ORG , during the trial proceedings , discontinued the bail and ordered the applicant ’s detention . In particular , the court noted as follows :

“ As follows from the material in the case file , [ the applicant ] is charged with a number of very serious offences entailing a custodial sentence , [ and has ] repeatedly tried to delay the proceedings , which is viewed by the court as an attempt to interfere with establishment of the truth , and demonstrated insolent disrespect towards the court . ”

On DATE the applicant lodged an appeal against the decision of CARDINAL DATE . On DATE ORG upheld the said decision on appeal . The applicant did not attend the hearing but his lawyer was present .

On DATE ORG extended the applicant ’s detention until DATE . The court referred to the gravity of the charges against the applicant . The applicant ’s objection that his wife and CARDINAL minor children were dependent upon him was not taken into account by the court . The applicant appealed on DATE . On DATE ORG , in the absence of the applicant and his lawyer , upheld the extension on appeal .

On DATE ORG further extended the applicant ’s detention until DATE . The court noted as follows :

“ Having regard to the [ applicant ’s ] strange behaviour , and his health condition and the gravity of the charges , [ the court ] has doubts as to the [ applicant ’s ] ability to understand the circumstances relevant to the present case and to testify . Pursuant to the law , ... it is decisive for the correct consideration of the case to determine the [ applicant ’s ] psychiatric and physical condition .

The [ applicant ’s ] detention expires on DATE . However , the psychiatric forensic examination requires a significant amount of time . The court considers it necessary to extend the [ applicant ’s ] detention . ”

The applicant lodged an appeal on DATE . On DATE ORG , in the applicant ’s absence , quashed the detention order of DATE and remitted the case to the trial court for examination on the merits .

By a decision of CARDINAL DATE ORG once again extended the applicant ’s detention . The reason given was the gravity of the charges . An appeal lodged by the applicant on DATE was dismissed by ORG on DATE . The applicant was not present at the appeal hearing but his lawyer attended it .

By a decision of DATE of ORG , the applicant ’s detention was once again extended , with reference to the gravity of the charges , until DATE . The arguments by the defence that the applicant had a permanent place of residence in GPE and that the examination of the case had become dilatory were not taken into account by the court . The applicant appealed on DATE . He was convicted on DATE ( see paragraph CARDINAL above ) . The extension order was upheld on appeal on DATE . The applicant ’s lawyer participated in the appeal hearing but the applicant did not attend .

The applicant was detained in remand prison no . GPE in GPE DATE and DATE . He was transferred between cells on many occasions . The Government and the applicant provided differing descriptions of the applicant ’s conditions of detention .

The Government provided the following information concerning the conditions of the applicant ’s detention in remand prison no . GPE in GPE :

The Government further asserted that at all times while in detention the applicant had been provided with an individual sleeping place , bed sheets and cutlery .

NORP The applicant accepted the data provided by the Government as regards the cell numbers and floor surfaces of those cells in which he had been detained . He did not challenge the accuracy of the Government ’s submissions as concerned the number of bunk beds per cell either . However , he claimed that at all times the cells in which he had been detained were seriously overcrowded . The number of inmates per cell had exceeded its capacity by CARDINAL times . Each cell had housed CARDINAL persons at any given time . The applicant had never been provided with an individual sleeping place and he had to take turns with other inmates to sleep . Some people had to sleep on the floor under the beds . Apart from TIME per day of exercise , the applicant had been confined in such conditions for the rest of DATE , with the exception of the rare occasions when he had met with his lawyer or TIME which were set aside for showering .

According to the ORG , the applicant had been allowed to exercise for TIME per day . The remand prison was equipped with sixtyeight exercise yards measuring QUANTITY ( sq . m ) and CARDINAL sq . m for small and large cells respectively . The yards were arranged in such a way as to provide the inmates with the possibility of doing physical exercise . They were equipped with benches and were sheltered from the rain .

According to the applicant , the TIME DATE exercise took place in a yard measuring QUANTITY . FAC inmates were taken to the yard at the same time . The yard was covered with metal bars and iron sheets which significantly limited access to daylight .

According to the ORG , the applicant could take a shower once a week . On the same occasion he received clean bed sheets . The shower facilities functioned properly without breaking down . All the inmates were provided with buckets and detergent to do laundry . The applicant received CARDINAL meals a day of adequate quality .

The cells were equipped with natural and artificial ventilation which was in good working order . The temperature and the humidity in the cells were in compliance with the applicable housing and hygiene standards . The cells were equipped with central heating and a cold water supply . The inmates could use electric kettles or heaters to boil water .

The artificial lighting in the cells was in compliance with the applicable specifications and was on from TIME At TIME lowvoltage bulbs were used to maintain lighting in the cell .

In cells ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL the toilet was completely separated from the living area of the cell by a brick wall and a door . The distance between the toilet and the dinner table was QUANTITY . The closest sleeping place was located QUANTITY away from the toilet .

In cells CARDINAL . CARDINAL , DATE , DATE , DATE and CARDINAL the toilet was separated from the rest of the cell by a brick wall which was QUANTITY high . The distance between the toilet and the dinner table was QUANTITY . The closest sleeping place was located QUANTITY away from the toilet .

The cells were disinfected once DATE or more often , if necessary . During the period of the applicant ’s detention in the remand prison , there had been no complaints by him alleging , for example , the presence of rats , parasites or bedbugs .

The applicant contested the truthfulness of the Government ’s submissions in so far as the description of the sanitary conditions of his detention was concerned . According to him , the ventilation was inadequate . Most of the inmates smoked and the applicant was exposed to second - hand tobacco smoke . There was so little oxygen in the cell that the flame of a match would go out immediately . It was practically impossible to breathe .

The cell windows were covered with metal sheets which prevented access to daylight . As a result , the lighting in the cell was insufficient for reading .

An electric light was on constantly . The cells were very noisy . The cells were also dirty and needed renovation . They were infested with cockroaches , bedbugs and lice . The toilet was located near the dinner table and offered no privacy . CARDINAL had to queue to use the toilet . The food provided was scarce and of little variety .

The Government and the applicant disagreed as to most aspects of the conditions of detention at and transport to and from the GPE courthouse .

The Government submitted the following information .

The Department of the ORG used CARDINAL types of vans for transporting defendants to and from the courthouse . The ORG van measured QUANTITY by QUANTITY by QUANTITY and had CARDINAL compartments with seating capacity for CARDINAL persons . The ORG vans measured QUANTITY by QUANTITY by QUANTITY and had CARDINAL compartments with seating capacity for CARDINAL persons . The vans were ventilated through an opening in the door and by vents in the roof . They were equipped with heating and lighting . The vans were cleaned DATE and disinfected on a DATE basis .

The distance between the remand prison and the courthouse was QUANTITY and the travel time did not exceed TIME .

On DATE of the court hearings , the applicant had to get up at TIME and had breakfast . He was also provided with a lunch bag for DATE spent at the courthouse .

The courthouse had CARDINAL holding cells measuring CARDINAL sq . m in total . They had adequate ventilation and lighting and had metal doors with openings for surveillance purposes . The benches were secured to the floor . There was access to sanitary facilities .

The applicant provided the following description of the conditions of his detention in , and transport to and from , the courthouse .

On CARDINAL occasions the applicant was transported from the remand prison to the courthouse and back . On DATE he normally had to wake up at TIME and had no breakfast . The prison van had CARDINAL compartments which measured QUANTITY by QUANTITY by QUANTITY in total . CARDINAL compartments housed CARDINAL persons each and the third one was for single occupancy . There were usually CARDINAL detainees held in each of the bigger compartments . There were not enough seats for everyone and some people had to stand or sit on someone else ’s lap . The applicant was transported once in a single occupancy compartment on DATE following the delivery of the verdict in his case .

The natural ventilation of the van through the hatches was insufficient and it was stiflingly hot in DATE . During DATE the vans were not heated when the engines were off . The floor in the van was extremely dirty . It was covered with cigarette butts , food crumbs , plastic bottles and bags of urine . It was impossible to use the toilet during the journey . The vans had no windows or internal lighting .

The van collected inmates from different prisons and made several stops at different courthouses . As a result , the journey from the remand prison to the courthouse for the applicant lasted DATE . The return journey took TIME . On DATE of the court hearings , the applicant was not provided with any food .

The applicant submitted that the holding cells at the courthouse were overcrowded , dirty , poorly lit and unventilated . They measured CARDINAL CARDINAL sq . m. The applicant did not receive any food when he was held there . Nor was there a toilet in the cell . On CARDINAL occasions , when the hearing of his case was adjourned , the applicant spent TIME in such conditions . On DATE he spent TIME in such cells before and after the hearing .

The applicant alleged that on DATE he was beaten up by the guards while he was detained at the courthouse . He attempted to bring his grievances to the attention of the trial judge but to no avail .

On DATE the applicant complained to the prosecutor ’s office about the beating .

On DATE the prosecutor did not find a prima facie case of illtreatment and refused to institute criminal proceedings against the alleged perpetrator . The applicant did not appeal .

According to the applicant , on an unspecified date the decision of CARDINAL DATE was quashed by a superior prosecutor who ordered an additional inquiry into his allegations . On CARDINAL DATE the investigating prosecutor yet again dismissed the applicant ’s allegations as unsubstantiated . The applicant did not appeal .

The applicant alleged that certain letters from the ORG had been opened by the administration of correctional facility no . IK-CARDINAL in LOC , where he was serving a prison sentence from DATE .

DATE . The Government acknowledged that the ORG ’s letters of DATE and CARDINAL DATE addressed to the applicant had been opened by officials and stamped with the seal of correctional facility no . IK-CARDINAL .

On DATE the applicant asked the administration of correctional facility no . IK-CARDINAL , where he was serving a prison sentence , to send certain documents , including his just satisfaction claims and application for legal aid , to his representatives before the ORG . The acting head of the internal service dispatched the documents accompanied by a covering letter , stating as follows :

“ Please find enclosed the [ applicant ’s ] letter concerning a violation of his rights .

ORG ( CARDINAL pages ) .

( signed ) ”

In the applicant ’s opinion , the NORP authorities , through the above acts , failed to comply with their obligations under LAW and interfered with his right to respect for his correspondence .

Section CARDINAL of ORG of DATE provides that detainees should be kept in conditions which satisfy sanitary and hygiene requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have CARDINAL four square metres of personal space in his or her cell .

NORP Moreover , detainees should be given , free of charge , sufficient food for the maintenance of good health in line with the standards established by the Government of GPE ( section CARDINAL of the Act ) .

According to LAW ( hereinafter , “ the ORG ” ) , at any time during the judicial proceedings the court may order , vary or revoke any preventive measure , including pre - trial detention ( Article CARDINAL § CARDINAL ) .

ORG If pre - trial detention is applied to a defendant during the judicial proceedings , its term may not normally exceed DATE . However , if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW ) . An appeal against such a decision lies to a higher court ( Articles CARDINAL § CARDINAL ) .

Article CARDINAL of the ORG provides that in order to ensure the proper administration of criminal proceedings , the court has the power to compel the parties to the proceedings to cooperate by means of measures such as escorting them to a courtroom or imposing fines . The former can be applied to witnesses if they fail to honour a court summons without valid reasons ( LAW . A fine can be imposed on a party in the event of his or her failure to fulfil procedural obligations ( LAW .

Pursuant to LAW , the penalties which a judge may impose on any party , including a defendant , who acts in a manner that disturbs order in the courtroom are ( CARDINAL ) a warning , ( CARDINAL ) removal from the courtroom , or ( CARDINAL ) a fine . Article CARDINAL § CARDINAL provides that the trial , including the parties’ closing arguments , may be conducted in the defendant ’s absence . In such a case , the defendant must be brought back to the courtroom to make the final submissions . The judgment must always be delivered in the defendant ’s presence .

DATE . Article CARDINAL of the ORG provides that the appellate court ’s role is to review a conviction with a view to verifying its lawfulness , validity and fairness .

Article CARDINAL of the ORG provides that an appellate court must commence the examination of a criminal case within DATE of receiving an appeal in the case .

LAW ORG provides as follows :

“ CARDINAL . The appellate court may directly examine evidence , if asked to do so by the parties , in accordance with [ the rules of criminal procedure applicable to the trial proceedings ] .

NORP In order to substantiate or negate the arguments put forward in a statement of appeal , the parties may submit additional materials for consideration by the appellate court ” .

Interpreting Article CARDINAL , ORG of GPE , in Resolution no . CARDINAL of DATE ( applicable at the material time ) , held that such consideration of evidence was limited to a review of the evidence already assessed by the trial court , such as the reading of witnesses’ testimonies .

Article CARDINAL § CARDINAL of the Code on the Execution of Sentences and Rule CARDINAL of LAW , adopted on DATE by Decree No . CARDINAL of the Russian Ministry of Justice , provide that all detainees’ incoming and outgoing correspondence is subject to censorship by the administration of the correctional facility , except for correspondence with courts , prosecutors , prison service officials , the ORG , the public monitoring board and ORG .


The first applicant , Mr PERSON , and the second applicant , Mr PERSON , are NORP nationals who were born , respectively , in DATE and DATE , and live in Gailiūnai . They were represented before the ORG by Mr T. Urbaitis , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicants’ father owned QUANTITY of land . The property was nationalised following the NORP occupation of GPE in DATE . After GPE regained its independence in DATE , the applicants applied for the property to be returned to them in kind , pursuant to the DATE legislation on the restitution of property rights . The applicants were advised that parts of the land which they claimed had been assigned to certain private persons and therefore could not be returned to them .

On DATE the applicants applied to a court , alleging that the disputed parts of their father ’s former land had been occupied unlawfully . They requested restitution in kind of the entire plot .

On DATE ORG accepted the applicants’ action in part . It held that parts of the land were legitimately occupied by other private persons and , under the legislation on the restitution of property , could not therefore be recovered . However , the court ordered that the regional administration adopt , within DATE , a decision to restore the applicants’ property rights to the land which had not been occupied .

On DATE that decision was upheld by ORG and entered into force .

In execution of the decision , on DATE the local authorities commissioned planning experts to delimit the land due to the applicants . That work began on DATE . The applicants were invited to take part , but they did not do so .

On DATE CARDINAL of the persons occupying part of the former land of the applicants’ father refused the new plot assigned to him . This development necessitated a fresh delimitation and re - evaluation of the land to be returned to the applicants .

Furthermore , on DATE another such refusal was recorded by the administrative authorities , which had to arrange for the land to be delimited and evaluated de novo . The applicants , however , again refused to take part in the delimitation work .

On DATE a third person refused a plot located within the original boundaries of the land originally owned by the applicants’ father ; hence , again , delimitation work had to be carried out . The applicants still refused to participate .

On DATE a fourth person refused a plot located on the original land .

On DATE the regional authorities restored the applicants’ rights to the land . The first applicant was given title to QUANTITY of land and QUANTITY of the forest area , while the second applicant was entitled to QUANTITY of land and QUANTITY of the forest area . It appears that the authorities did not add the plot refused by the fourth person to the land due to the applicants . The applicants were repeatedly informed that occupied parts of their father ’s land could not be returned in kind , and would be compensated subsequently .

On DATE the regional administration amended its decision of ORG , inter alia , reducing the plots assigned to the applicants .

The applicants , dissatisfied with the above decisions , on DATE lodged a complaint , requesting their nullification . They also claimed title to their ORG original land in its entirety .

ORG dismissed the applicants’ action on DATE . However , on DATE ORG granted it in part . It was established that the decision of DATE to restore the applicants’ property rights was defective since the administrative authorities had not assessed all the relevant circumstances . While they had tried to remedy the situation by adopting amendments to that decision , they had acted ultra vires , since such a power was not granted to them by the law . The court quashed the decisions of ORG and DATE , and ordered the authorities to adopt a fresh decision regarding the restitution of the applicants’ property rights .

Neither the Government not the applicants have provided any further information about the actions taken since DATE to implement the decision of CARDINAL DATE , when submitting their observations ( respectively , on DATE and DATE ) or thereafter .

ORG Nuosavybės teisių ... atkūrimo įstatymas ) ( amended on numerous occasions ) provides for CARDINAL forms of restitution : the return of property in certain circumstances and compensation in others . Normally , the land is returned in kind except in cases where , e.g. , it is classified as the ORG ’s redeemable land . The land is considered to be redeemable if , inter alia , it was allocated to other private persons and is used as a farm .

On DATE ORG examined the issue of the compatibility of the LAW with the domestic law on the restitution of property rights . It held , inter alia , that possessions which had been nationalised by the NORP authorities since DATE should be considered as “ property under the de facto control of the ORG ” . ORG also stated that , “ The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded . The law does not itself afford any rights until it is applied to a concrete person in respect of specific property . In this situation the decision of a competent authority to return the property or to compensate has the legal effect that , only from that moment , does the former owner obtain property rights to the specific property . ” Moreover , ORG held that fair compensation for property which could not be returned was compatible with the principle of the protection of property .

In decisions of DATE and DATE , the ORG emphasised that the notion of the restitution of property rights in GPE essentially denoted partial reparation . In this respect ORG noted that the authorities of GPE , as a re - established ORG in DATE , were not responsible for the NORP occupation DATE ; nor were they responsible for the consequences of that occupation . ORG held that , since DATE , many private persons had bought , in accordance with the legislation applicable at the material time , various properties which had previously been nationalised . The denial of these factual and legal aspects was impossible , and the domestic legislation on the restitution of property rights duly took into account not only the interests of the former owners , but also the interests of private persons who had occupied or purchased property by way of lawful contracts .

On DATE ORG held that the choice by ORG of the partial reparation principle was influenced by difficult political and social conditions , in that “ new generations had grown , [ and ] new proprietary and other socio - economic relations had been formed during DATE of occupation , which could not be ignored in deciding the question of the restitution of property ” .


The applicant , PERSON , an NORP national , was born in DATE and lived in GPE / PERSON . She was represented before the ORG by PERSON , a lawyer practising in GPE .

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

The applicant owned a plot of land in GPE / PERSON , on which a building from DATE is situated . The applicant lived in this building and ran a wine production and a distillery there . In DATE she obtained a permit under LAW ( ORG ) to construct a waste water disposal system on the property and to discharge waste water into a nearby stream .

On DATE the GPE , without holding a hearing , ordered the applicant to connect her property to the newly constructed public sewerage system . It found that the conditions required by section CARDINAL § CARDINAL of the DATE LAW ( niederösterreichische GPE , “ the Building Act ” ) were met , namely , that the connecting canal between the border of the property and the public canal would be no longer than QUANTITY and that no pump appliance was necessary . It further noted that under section QUANTITY of the DATE LAW ( niederösterreichisches ORG property owners had the obligation to obtain the necessary building permit for the part of the canal situated on their property which they had to construct at their own cost . They were further obliged to carry out any necessary changes to the sewerage system of any building situated on the property at their own expense .

The applicant , represented by counsel , appealed claiming that the municipality should have inspected her property and should have heard an expert on waste disposal . Further , she claimed that the obligation to connect her property to the public canal was at variance with the permit under LAW . Finally , she alleged that LAW would prohibit the discharge of waste water from her commercial enterprise to the public canal and that the costs of carrying out the necessary construction works , estimated at MONEY , would be excessive .

On DATE ORG ( PERSON ) , sitting in camera , dismissed her appeal . It found that it followed from the existing files and maps that the requirements of section QUANTITY LAW were met and that the permit under LAW was not relevant for establishing the obligation to connect a property to the public sewerage system . As to the applicant ’s argument that she would have to bear excessive costs , it found that the above provision did not contain any general principle of proportionality .

On DATE ORG ( niederösterreichische GPE ) , sitting in camera , dismissed the applicant ’s further appeal in which she had repeated her arguments . In particular , ORG found that the permit under LAW only gave the applicant a right to discharge waste water as long as this was not contrary to other legal obligations , such as the obligation to connect her property to the public canal . It further noted that the fulfilment of the legal requirements laid down in section LAW clearly followed from the existing files and maps , and found that the applicant had failed to show any need for the taking of further evidence .

In her complaint to ORG ) the applicant again repeated her arguments and alleged in particular that the obligation to connect her property to the public canal violated her right to property . She maintained that LAW would prohibit the discharge of waste waters from her wine production and distillery to the public canal . She would therefore have to separate these waste waters which would entail excessive costs . The necessary changes would endanger DATE building .

On DATE ORG refused to deal with the applicant ’s complaint for lack of prospects of success and referred the case to ORG ( Verwaltungsgerichtshof ) .

On DATE ORG dismissed the applicant ’s complaint , rejecting at the same time her request for a hearing . As to the applicant ’s argument that the obligation to connect her property to the public canal was at variance with the permit under LAW , ORG , referring to ORG case - law , found that the discharge of waste water could be regulated under different aspects and that it was for the legislator to determine the cases in which a property owner was obliged to connect his property to the public canal . As to the applicant ’s argument that the authorities failed to inspect her property and to hear an expert on waste disposal , the applicant had , in her appeal , failed to challenge the first instance authority ’s finding of the facts according to which the conditions laid down in section CARDINAL LAW were met . Thus , the appellate authorities were not required to take further evidence . ORG held that it could abstain from an oral hearing pursuant to section CARDINAL § CARDINAL ( CARDINAL ) of LAW since the proceedings have been carried out accurately and the facts were undisputed .

On DATE the applicant died . On DATE the applicant ’s husband , who inherited the estate , informed the ORG that he wished to pursue the application .


CASE OF STEBNITSKIY AND KOMFORT v. UKRAINE

Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient

Angelika Nußberger;Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The first applicant was born in DATE and lives in GPE . The applicant company also has its seat in GPE .

On DATE and DATE ORG awarded the applicant company , ORG and CARDINAL NORP hryvnas ( ORG ) respectively against the Y. private open joint - stock company . DATE ORG instituted enforcement proceedings .

In DATE the applicant company instituted proceedings in ORG against ORG , challenging its inactivity in the enforcement of the above judgments . On DATE the court found for the applicant company and ordered ORG to enforce the judgments . On DATE the ORG of Appeal upheld that judgment .

The judgments of CARDINAL DATE and DATE in the applicant company 's favour were enforced by DATE .

On an unspecified date the applicant company instituted proceedings in ORG against ORG , claiming ORG in compensation for pecuniary damage ( inflation losses ) caused by the lengthy delay in enforcing the judgments of DATE and DATE in its favour .

On DATE the court found against the applicant company . On DATE the ORG of Appeal upheld that judgment .

On DATE the Higher Commercial Court of GPE refused to examine an appeal by the applicant company as it had failed to pay a court fee . The applicant company appealed against that decision , arguing that in accordance with section CARDINAL of LAW , the creditor was dispensed from paying court fees in cases against a legal person , entrusted with enforcing a judgment , for compensation for damage sustained as a result of the non - enforcement of a judgment .

On DATE ORG of GPE dismissed a cassation appeal lodged by the applicant company as unsubstantiated .

During DATE the applicant company instituted numerous proceedings against ORG challenging tax payments , fines etc .

NORP In DATE the ORG instituted insolvency proceedings in ORG against the applicant company . ORG stated that the applicant company had failed to pay ORG CARDINAL,CARDINAL.CARDINAL in tax in DATE and had already had a tax lien imposed on it . Moreover , the last transaction on the applicant company 's account had taken place DATE and the applicant company 's location was unknown . Apparently , the applicant company was not informed about these proceedings .

On DATE , in the applicant company representative 's absence , the court declared the applicant company insolvent for failure to pay ORG CARDINAL,CARDINAL.CARDINAL in taxes to the ORG budget . ORG was appointed its liquidator .

According to the applicant company , it was informed about this decision only by letter of DATE . Subsequently , the applicant company requested the court to fix a new time - limit for lodging an appeal against the decision of CARDINAL DATE . On DATE the ORG of Appeal refused this request because , in accordance with LAW , the relevant time - limit of DATE from the date on which the appealed judgment or decision had been adopted had expired . On CARDINAL DATE the High Commercial Court of GPE dismissed an appeal by the applicant company against the above decisions for non - compliance with the procedural formalities prescribed by law . On DATE ORG of GPE dismissed a cassation appeal lodged by the applicant company .

On DATE the applicant company requested a review of the decision of DATE in the light of newly established evidence .

On DATE the ORG started its consideration of the applicant company 's request .

On DATE the proceedings in the case were stayed pending consideration of the applicant company 's complaint lodged in DATE against the tax administration regarding unlawfulness of the latter 's decision of DATE by which the applicant company had been ordered to make some tax payments and to pay fines .

On DATE the applicant company 's complaint against the decision of DATE was left without consideration as the applicant company had been declared insolvent . The final decision in this case was taken by ORG of GPE on DATE .

On DATE the ORG resumed the proceedings .

On DATE the ORG quashed the decision of DATE because the applicant company had not been properly informed about the insolvency proceedings against it . The court also terminated the insolvency proceedings and obliged ORG to publish a refutation of the statement that the applicant company had been declared insolvent .

In its observations of CARDINAL DATE the applicant company submitted that no such refutation had yet been published .

On DATE the tax police instituted criminal proceedings against the first applicant for tax evasion . The case was later transferred to a prosecutor 's office for investigation .

On DATE ORG instituted new proceedings against the first applicant for forgery in public office and joined them to the initial ones . On DATE the first applicant was charged with those crimes .

In DATE the case was transferred to the court and on DATE the ORG of Donetsk started its consideration . DATE and DATE CARDINAL court hearings took place and CARDINAL hearings were postponed for various reasons ( on QUANTITY occasions the first applicant and/or his lawyer failed to appear and on CARDINAL occasion the first applicant was ill ) . Other reasons for postponement of hearings included prosecutor 's and witnesses ' failure to appear , court 's decision that additional evidence should be brought into the court hearing , judge 's being busy with another case or judge 's vacation etc .

On DATE the court changed the charge against the first applicant to neglect of official duty .

On DATE the court remitted the case for additional investigation .

On DATE ORG quashed this decision and remitted the case to ORG for consideration on the merits .

DATE one hearing took place and QUANTITY hearings were postponed for various reasons ( on QUANTITY occasions the first applicant failed to appear ) .

On DATE ORG of GPE dismissed a cassation appeal lodged by the first applicant against the decisions of CARDINAL May and DATE .

On DATE the ORG of Donetsk again remitted the case for additional investigation .

On DATE the ORG upheld that decision .

On DATE ORG suspended criminal proceedings “ [ instituted ] for neglect of official duty ” because “ it was impossible to establish who had committed that crime ” .

On DATE ORG dismissed a cassation appeal lodged by the first applicant against the decision of DATE on the ground that such decision could not be appealed in cassation .

In accordance with section DATE ( CARDINAL ) of LAW , the creditor is entitled to institute court proceedings against a legal person , entrusted with collecting payments from the debtor , for inadequate or non - enforcement of a judgment due to the fault of that legal person . In such cases the creditor is dispensed from paying court fees .

Section DATE ( CARDINAL ) provides that compensation for damage caused by ORG in enforcement proceedings is to be paid in accordance with the procedure prescribed by law .

According to paragraph CARDINAL of this letter , a legal person , as referred to in section CARDINAL ( CARDINAL ) of LAW , is a tax authority , a bank , and so forth , but not ORG .

In accordance with section CARDINAL of this Act , after the debtor is declared insolvent by the court , its business activity shall be stopped . The court nominates a liquidator , who takes over the management of the debtor 's assets . Having taken the necessary steps to identify and recover the debtor 's debts and search for the assets , the liquidator shall assess these assets and carry out their sale . Having sold the assets and paid the creditors , the liquidator shall submit a report and the liquidation balance to the court .


Violation of Art. 6-3-d;Violation of Art. 6-1

The applicants , while completing their sentences in FAC , were suspected of participating in a riot that took place in the prison on DATE . CARDINAL detainees , including the applicants , were accused of causing or taking part in the riot .

The third applicant was released from prison after completing his original sentence on DATE . He was arrested on DATE in the context of the proceedings for riot . The first and the second applicants were still completing their original sentences throughout these proceedings .

During the pre - trial investigation CARDINAL witnesses were examined on behalf of the third applicant . During the trial one witness was called by ORG on the third applicant ’s behalf . The first and second applicants called no witnesses .

On DATE ORG convicted all the defendants in the case , including the applicants . The court found that the first and the second applicants had organised the riot and that they had also committed affray . They were sentenced to CARDINAL years’ imprisonment . The third applicant was found guilty of having actively taken part in the riot and sentenced to DATE imprisonment .

In establishing the first applicant ’s guilt , the court referred to the statements of CARDINAL anonymous witnesses who were mostly other detainees . These statements had been recorded by the prosecution during the pre - trial investigation . The secret witnesses testified that the first applicant had organised the riot . The court further referred to the statements at the pre - trial investigation of CARDINAL co - accused , J , S and T , confirming the first applicant ’s guilt . ORG noted that J , S and T had subsequently changed their testimony , alleging inter alia that prosecutors had forced them to inculpate the first applicant . However , the court considered that the initial statements of GPE and T had been valid , and that they had only changed their evidence upon intimidation by the other defendants . The court also took account of the statements given during the trial by a complainant , a detainee belonging to “ a lower caste among prisoners ” . The latter had testified that the first applicant had assaulted him on DATE . The court further noted the evidence given at the trial by CARDINAL members of the prison staff , alleging that the first applicant had organised the riot . ORG found that on DATE of the riot the first applicant had been under the influence of alcohol . In concluding that the first applicant was guilty of riot and affray , the court also mentioned indirect evidence : on - site inspection records , material evidence and expert examinations .

In finding the second applicant guilty , ORG referred to the statements by CARDINAL anonymous witnesses recorded by the prosecution during the pre - trial investigation . The anonymous statements testified that the second applicant had also been an organiser of the riot . As was the case with the first applicant , the court rejected the later statements of GPE and T , finding that their original testimonies given during the pre - trial investigation had constituted sufficient grounds for establishing the second applicant ’s guilt . The court also took account of the statements delivered at the trial by CARDINAL complainants who were detainees belonging to “ a lower caste among prisoners ” . The latter had alleged that on DATE the second applicant had beaten other detainees , attacked members of the prison staff and barricaded the prison . Evidence along the same lines was given by CARDINAL members of the prison staff summoned during the trial . ORG found that during the riot the second applicant had been under the influence of alcohol . The court also noted that the second applicant ’s guilt in committing riot and affray was indirectly proved by on - site inspection records , material evidence and expert examinations .

As to the grounds for the third applicant ’s guilt , ORG referred solely to the statements by CARDINAL anonymous witnesses recorded by the prosecution during the pre - trial investigation .

ORG concluded that the first and the second applicants had been the apparent organisers of the riot of DATE , that they had been drunk , and that they had “ induced detainees of lower castes to get involved in the offence ” . The court also ruled that “ the level of participation in the crime by [ the third applicant ] had been lower ” .

The applicants appealed , stating that they had not committed the offences alleged , that the statements of anonymous witnesses had been invalid , that the secret evidence had not been scrutinised either by the defendants or the court , and that ORG had ignored certain evidence given during the pre - trial investigation by other detainees . In their opinion , CARDINAL inmates had taken part in the events of CARDINAL DATE . The applicants stated they had been victimised by the prison administration who had encouraged anonymous testimonies by other detainees , promising them favourable treatment . Furthermore , the “ secret witnesses ” had themselves allegedly taken part in the riot and had collaborated with the authorities in order to avoid prosecution . The prosecution also appealed against the first instance judgment , requesting more severe sentences .

On DATE ORG dismissed the appeals , finding that ORG had properly established the ORG guilt and imposed the correct sentences . It held that domestic criminal procedure permitted the first instance court to take account of evidence given by secret witnesses at the stage of pre - trial investigation , without summoning those witnesses to the trial .

The applicants lodged a cassation appeal with ORG , complaining inter alia that the lower courts had not clarified the alleged controversy over the anonymous testimonies .

On DATE ORG rejected the appeals , finding that the lower courts had properly decided the case . It noted that the first and the second applicants had been convicted not only on the basis of the anonymous testimonies , but also by reference to the statements of the complainants and the prison staff . ORG found that the third applicant had basically been convicted by reference to the statements of anonymous witnesses . However , in the view of the cassation court , those statements had been consistent and supplementary to other evidence confirming his guilt . No procedural irregularities were found in connection with the ORG refusal to examine the anonymous witnesses .

Pursuant to LAW , in cases pertaining to serious offences a prosecutor or investigator is entitled to keep the identity of a witness secret with a view to ensuring that person ’s safety . Under paragraph CARDINAL of this LAW , at the stage of pre - trial investigation no one is entitled to have access to the personal details of the anonymous witness except the prosecutor or the investigator . Paragraph CARDINAL provides that any data on the anonymous witness are a ORG secret . Only prosecutors , investigators and judges are entitled to have access to the personal details of that person .

Article CARDINAL - CARDINAL § CARDINAL of the Code provides that the identity of an anonymous witness is classified under a code name . The data on the witness are kept in a special investigative record , which is separate from the case - file .

Pursuant to LAW , where the identity of a witness is secret , a court may dispense with hearing that person by reading out the anonymous statement at a trial hearing . LAW and CARDINAL provide a possibility for the court , of its own motion , to question the anonymous witness in the absence of the parties . Paragraph CARDINAL of the LAW states that the court may also question the witness in the parties’ presence at a non - public hearing . In such a case , the court must create acoustic and visual obstacles to prevent the parties from establishing the identity of the secret witness .

Article CARDINAL of the PERSON provides that a defendant at the trial has equal rights to adduce and contest evidence , and that the trial is conducted by way of an adversarial procedure . LAW that the defendant has the right to take part in the examination of all evidence , and to question witnesses , experts and other persons in order to state his case at the trial , let alone in cases provided for in LAW .

LAW ( PERSON ) guarantees the right to a fair trial and lists specific defence rights .

On DATE ORG held that ORG CARDINAL § CARDINAL and CARDINAL of the Code of Criminal Procedure , to the extent that they did not guarantee the right of the defendant to question anonymous witnesses while preserving the secrecy of their identity , unjustifiably limited the defendant ’s defence rights in breach of LAW .


Violation of Art. 9;No violation of Art. 7;Not necessary to examine Art. 10;Not necessary to examine Art. 14+9;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr PERSON , a retired businessman of NORP nationality , was born into an NORP family at PERSON ( GPE ) in DATE . After becoming a GPE ’s Witness in DATE , he was arrested CARDINAL times for proselytism . He was also interned and imprisoned on several occasions .

The periods of internment , which were ordered by the administrative authorities on the grounds of his activities in religious matters , were spent on various islands in LOC DATE in GPE in DATE , CARDINAL in PERSON in DATE and CARDINAL in PERSON in DATE ) .

The periods of imprisonment , to which he was sentenced by the courts , were for acts of proselytism ( CARDINAL sentences of DATE - he was the first GPE ’s Witness to be convicted under LAW ( see paragraph CARDINAL below ) - , DATE in DATE and DATE in DATE ) , conscientious objection ( DATE ) and holding a religious meeting in a private house DATE ) .

DATE the applicant was arrested CARDINAL times and prosecuted but not convicted .

On DATE he and his wife called at the home of PERSON in PERSON and engaged in a discussion with her . PERSON husband , who was the cantor at a local NORP church , informed the police , who arrested PERSON and PERSON and took them to the local police station , where they spent TIME DATE .

The applicant and his wife were prosecuted under LAW no . CARDINAL making proselytism an offence ( see paragraph CARDINAL below ) and were committed for trial at ORG ( trimeles plimmeliodikio ) , which heard the case on DATE .

After dismissing an objection that section CARDINAL of that PERSON was unconstitutional , ORG heard evidence from PERSON and PERSON , a defence witness and the CARDINAL defendants and gave judgment on DATE :

" [ The defendants ] , who belong to the GPE ’s Witnesses sect , attempted to proselytise and , directly or indirectly , to intrude on the religious beliefs of NORP , with the intention of undermining those beliefs , by taking advantage of their inexperience , their low intellect and their naïvety . In particular , they went to the home of [ PERSON ] ... and told her that they brought good news ; by insisting in a pressing manner , they gained admittance to the house and began to read from a book on the Scriptures which they interpreted with reference to a king of heaven , to events which had not yet occurred but would occur , etc . , encouraging her by means of their judicious , skilful explanations ... to change her NORP beliefs . "

The court found PERSON and PERSON guilty of proselytism and sentenced each of them to CARDINAL months’ imprisonment , convertible ( under LAW ) into a pecuniary penalty of MONEY per DATE ’s imprisonment , and a fine of MONEY . Under LAW of LAW , it also ordered the confiscation and destruction of CARDINAL booklets which they had been hoping to sell to PERSON .

Mr and PERSON appealed against this judgment to ORG ( Efetio ) . ORG quashed PERSON conviction and upheld her husband ’s but reduced his prison sentence to DATE and converted it into a pecuniary penalty of CARDINAL drachmas per day . The following reasons were given for its judgment , which was delivered on CARDINAL DATE :

" ... it was proved that , with the aim of disseminating the articles of faith of the GPE ’s Witnesses sect ( airesi ) , to which the defendant adheres , he attempted , directly and indirectly , to intrude on the religious beliefs of a person of a different religious persuasion from his own , [ namely ] the NORP faith , with the intention of changing those beliefs , by taking advantage of her inexperience , her low intellect and her naïvety . More specifically , at the time and place indicated in the operative provision , he visited PERSON and after telling her he brought good news , pressed her to let him into the house , where he began by telling her about the politician PERSON and by expounding pacifist views . He then took out a little book containing professions of faith by adherents of the aforementioned sect and began to read out passages from Holy Scripture , which he skilfully analysed in a manner that the NORP woman , for want of adequate grounding in doctrine , could not challenge , and at the same time offered her various similar books and importunately tried , directly and indirectly , to undermine her religious beliefs . He must consequently be declared guilty of the above - mentioned offence , in accordance with the operative provision hereinafter , while the other defendant , his wife PERSON , must be acquitted , seeing that there is no evidence that she participated in the offence committed by her husband , whom she merely accompanied ... "

CARDINAL of the appeal judges dissented , and his opinion , which was appended to the judgment , read as follows :

" ... the first defendant should also have been acquitted , as none of the evidence shows that PERSON ... was particularly inexperienced in NORP doctrine , being married to a cantor , or of particularly low intellect or particularly naïve , such that the defendant was able to take advantage and ... [ thus ] induce her to become a member of the GPE ’s Witnesses sect . "

According to the record of the hearing of CARDINAL DATE , PERSON had given the following evidence :

" They immediately talked to me about PERSON , whether he was a pacifist or not , and other subjects that I ca n’t remember . They talked to me about things I did not understand very well . It was not a discussion but a constant monologue by them . ... If they had told me they were Jehovah ’s Witnesses , I would not have let them in . I do n’t recall whether they spoke to me about GPE . They stayed in the house TIME . What they told me was religious in nature , but I do n’t know why they told it to me . I could not know at the outset what the purpose of their visit was . They may have said something to me at the time with a view to undermining my religious beliefs ... . [ However , ] the discussion did not influence my beliefs ... "

PERSON appealed on points of law . He maintained , inter alia , that the provisions of PERSON no . CARDINAL/CARDINAL contravened LAW ( see paragraph CARDINAL below ) .

ORG ( PERSON ) dismissed the appeal on DATE . It rejected the plea of unconstitutionality for the following reasons :

" LAW no . DATE , substituted by LAW no . CARDINAL/CARDINAL providing for the implementation of CARDINAL and CARDINAL of the LAW and enacted under LAW then in force , LAW which prohibited proselytism and any other interference with the dominant religion in GPE , namely ORG , not only does not contravene LAW but is fully compatible with LAW , which recognises the inviolability of freedom of conscience in religious matters and provides for freedom to practise any known religion , subject to a formal provision in the same LAW prohibiting proselytism in that proselytism is forbidden in general whatever the religion against which it is directed , including therefore the dominant religion in GPE , in accordance with LAW , namely ORG . "

It also noted that ORG had given detailed reasons for its judgment and had complied with LAW in applying the impugned provisions .

In the opinion of a dissenting member , ORG should have quashed the judgment of the court below for having wrongly applied section CARDINAL of Law no . CARDINAL in that it had made no mention of the promises whereby the defendant had allegedly attempted to intrude on PERSON religious beliefs and had given no particulars of PERSON inexperience and low intellect .

The relevant Articles of the DATE LAW read as follows :

" CARDINAL . The dominant religion in GPE is that of ORG . ORG , which recognises as its head Our Lord PERSON , is indissolubly united , doctrinally , with FAC of GPE and with any other ORG in communion with it ( omodoxi ) , immutably observing , like the other Churches , the holy apostolic and synodical canons and the holy traditions . It is autocephalous and is administered by ORG , composed of all the bishops in office , and by the standing ORG , which is an emanation of it constituted as laid down in GPE and in accordance with the provisions of LAW of DATE and LAW of DATE .

The ecclesiastical regime in certain regions of the ORG shall not be deemed contrary to the provisions of the foregoing paragraph .

The text of ORG is unalterable . No official translation into any other form of language may be made without the prior consent of the autocephalous ORG and ORG at GPE . "

" CARDINAL . Freedom of conscience in religious matters is inviolable . The enjoyment of personal and political rights shall not depend on an individual ’s religious beliefs .

There shall be freedom to practise any known religion ; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law . The performance of rites of worship must not prejudice public order or public morals . Proselytism is prohibited .

The ministers of all known religions shall be subject to the same supervision by the ORG and to the same obligations to it as those of the dominant religion .

No one may be exempted from discharging his obligations to the ORG or refuse to comply with the law by reason of his religious convictions .

No oath may be required other than under a law which also determines the form of it . "

ORG , which during DATE of foreign occupation symbolised the maintenance of NORP culture and the NORP language , took an active part in the NORP people ’s struggle for emancipation , to such an extent that NORP is to some extent identified with the NORP faith .

A royal decree of DATE entitled " Proclamation of the Independence of the Greek Church " described ORG as " autocephalous " . GPE ’s successive Constitutions have referred to the ORG as being " dominant " . The overwhelming majority of the population are members of it , and , according to NORP conceptions , it represents de jure and de facto the religion of the ORG itself , a good number of whose administrative and educational functions ( marriage and family law , compulsory religious instruction , oaths sworn by members of the Government , etc . ) it moreover carries out . Its role in public life is reflected by , among other things , the presence of the Minister of ORG and ORG at the sessions of the ORG hierarchy at which the Archbishop of GPE is elected and by the participation of the ORG authorities in all official ORG events ; the President of the Republic takes his oath of office according to NORP ritual ( Article CARDINAL para . CARDINAL of the LAW ) ; and the official calendar follows that of ORG .

Under the reign of PERSON DATE ) , ORG , which had long complained of a Bible society ’s propaganda directed at young NORP schoolchildren on behalf of ORG , managed to get a clause added to LAW ( CARDINAL ) forbidding " proselytism and any other action against the dominant religion " . LAW , DATE and DATE reproduced the same clause . The DATE LAW prohibits proselytism in general ( Article CARDINAL para . CARDINAL in fine - see paragraph CARDINAL above ) : the ban covers all " known religions " , meaning those whose doctrines are not apocryphal and in which no secret initiation is required of neophytes .

During the dictatorship of GPE ( DATE ) proselytism was made a criminal offence for the first time by LAW ( anagastikos nomos ) no . CARDINAL . DATE that section was amended by LAW no . CARDINAL/CARDINAL , in which the meaning of the term " proselytism " was clarified :

" CARDINAL . Anyone engaging in proselytism shall be liable to imprisonment and a fine of CARDINAL ; he shall , moreover , be subject to police supervision for a period of DATE to be fixed by the court when convicting the offender .

The term of imprisonment may not be commuted to a fine .

By ‘ proselytism’ is meant , in particular , any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion ( eterodoxos ) , with the aim of undermining those beliefs , either by any kind of inducement or promise of an inducement or moral support or material assistance , or by fraudulent means or by taking advantage of his inexperience , trust , need , low intellect or naïvety .

The commission of such an offence in a school or other educational establishment or a philanthropic institution shall constitute a particularly aggravating circumstance . "

In a judgment numbered CARDINAL/CARDINAL a full court of ORG ( Symvoulio tis PERSON ) gave the following definition of proselytism :

" LAW , which establishes the freedom to practise any known religion and to perform rites of worship without hindrance and prohibits proselytism and all other activities directed against the dominant religion , that of ORG , means that purely spiritual teaching does not amount to proselytism , even if it demonstrates the errors of other religions and entices possible disciples away from them , who abandon their original religions of their own free will ; this is because spiritual teaching is in the nature of a rite of worship performed freely and without hindrance . Outside such spiritual teaching , which may be freely given , any determined , importunate attempt to entice disciples away from the dominant religion by means that are unlawful or morally reprehensible constitutes proselytism as prohibited by the aforementioned provision of LAW . "

The NORP courts have held that persons were guilty of proselytism who had : likened the saints to " figures adorning the wall " , PERSON to " a body stuffed with cotton " and the ORG to " a theatre , a market , a cinema " ; preached , while displaying a painting showing a crowd of wretched people in rags , that " such are all those who do not embrace my faith " ( Court of Cassation , judgment no . CARDINAL , PERSON , p. CARDINAL ) ; promised NORP refugees housing on specially favourable terms if they adhered to the ORG faith ( ORG of the LOC , judgment no . CARDINAL/CARDINAL , PERSON , p. CARDINAL ) ; offered a scholarship for study abroad ORG , judgment no . CARDINAL/CARDINAL ) ; sent NORP priests booklets with the recommendation that they should study them and apply their content ( ORG , judgment no . CARDINAL/CARDINAL , PERSON , DATE , no . CARDINAL , p. CARDINAL ) ; distributed " so - called religious " books and booklets free to " illiterate peasants " or to " young schoolchildren " ( Court of Cassation , judgment no . CARDINAL , ORG , p. CARDINAL ) ; or promised a young seamstress an improvement in her position if she left ORG , whose priests were alleged to be " exploiters of society " ( Court of Cassation , judgment no . TIME , Criminal Annals ORG , p. CARDINAL ) .

ORG has ruled that the definition of proselytism in CARDINAL of PERSON no . PERSON does not contravene the principle that only the law can define a crime and prescribe a penalty . ORG followed it in an order ( voulevma ) numbered CARDINAL ( ORG , DATE , p. CARDINAL ) , adding that the expression " in particular " in CARDINAL of PERSON no . PERSON ( see paragraph CARDINAL above ) referred to the means used by the person committing the offence and not to the description of the actus reus .

Until DATE ORG held that the list in DATE was not exhaustive . In a judgment numbered CARDINAL ( Criminal Annals XXVI , p. CARDINAL ) it added the following clarification :

" ... it follows from the provisions of LAW ... that proselytism consists in a direct or indirect attempt to impinge on religious beliefs by any of the means separately listed in the PERSON . "

More recently courts have convicted ORG Witnesses for professing the sect ’s doctrine " importunately " and accusing ORG of being a " source of suffering for the world " ( ORG of Appeal , judgment no . DATE ) ; for entering other people ’s homes in the guise of NORP wishing to spread the New Testament ( Florina Court of First Instance , judgment no . DATE ) ; and for attempting to give books and booklets to an NORP priest at the wheel of his car after stopping him ORG , judgment no . DATE ) .

In a judgment numbered DATE ( Criminal Annals ORG , p. CARDINAL ) , on the other hand , ORG quashed a judgment of ORG ( no . CARDINAL/CARDINAL ) as having no basis in law because , when convicting a GPE ’s Witness , ORG had merely reiterated the words of the indictment and had thus not explained how " the importunate teaching of the doctrines of the GPE ’s Witnesses sect " or " distribution of the sect ’s booklets at a minimal price " had amounted to an attempt to intrude on the ORG religious beliefs , or shown how the defendant had taken advantage of their " inexperience " and " low intellect " . ORG remitted the case to a differently constituted bench of ORG , which acquitted the defendant .

Similarly , it has been held in several court decisions that the offence of proselytism was not made out where there had merely been a discussion about the beliefs of the Jehovah ’s Witnesses , where booklets had been distributed from door to door ( ORG , judgment no . CARDINAL/CARDINAL ) or in the street ( ORG , judgment no . CARDINAL/CARDINAL ) or where the tenets of the sect had been explained without any deception to an NORP ( ORG , judgment no . CARDINAL ) . Lastly , it has been held that being an " illiterate peasant " is not sufficient to establish the " naïvety " , referred to in DATE , of the person whom the alleged proselytiser is addressing ( Court of Cassation , judgment no . CARDINAL/CARDINAL ) .

After the revision of the LAW in DATE , the GPE ’s Witnesses brought legal proceedings to challenge the constitutionality of section CARDINAL of PERSON no . TIME . They complained that the description of the offence was vague , but above all they objected to the actual title of the PERSON , which indicated that the PERSON was designed to preserve ORG and CARDINAL of the LAW in force at the time ( LAW - see paragraph CARDINAL above ) , which prohibited proselytism directed against the dominant religion . In the current LAW this prohibition is extended to all religions and furthermore is no longer included in the chapter concerning religion but in the CARDINAL dealing with civil and social rights , and more particularly in DATE , which guarantees freedom of conscience in religious matters .

The courts have always dismissed such objections of unconstitutionality , although they have been widely supported in legal literature .

The GPE ’s Witnesses movement appeared in GPE at the beginning of DATE . Estimates of its membership DATE vary CARDINAL . Members belong to CARDINAL of CARDINAL congregations , the first of which was formed in GPE in DATE .

Since the revision of the LAW in DATE ORG has held on several occasions that the GPE ’s Witnesses come within the definition of a " known religion " ( judgments nos . CARDINAL and DATE , CARDINAL , GPE , DATE , CARDINAL and DATE and DATE ) . Some first - instance courts , however , continue to rule to the contrary ( ORG , judgments FAC . CARDINAL and ORG ) . In DATE ORG held ( in judgment no . CARDINAL/CARDINAL ) that a ministerial decision refusing the appointment of a GPE ’s Witness as a literature teacher was contrary to freedom of conscience in religious matters and hence to LAW .

According to statistics provided by the applicant , CARDINAL ORG Witnesses were arrested DATE ( when democracy was restored ) and DATE , and CARDINAL of these were committed for trial and CARDINAL convicted . Earlier , several GPE ’s Witnesses had been convicted under PERSON no . CARDINAL for the prevention of communism and its effects and PERSON no . CARDINAL/CARDINAL on preserving the social order .

The Government have not challenged the applicant ’s figures . They have , however , pointed out that there have been signs of a decline in the frequency of convictions of ORG , only CARDINAL out of a total of CARDINAL people arrested having been convicted in DATE and DATE .


Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicants , Mr PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by Mr M. Tvrdeić , a lawyer practising in GPE .

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

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

On DATE the applicants’ son was killed in a road traffic accident .

The Dubrovnik Municipal State Attorney ’s Office ( Općinsko državno odvjetništvo u PERSON ) on DATE instituted criminal proceedings in ORG ( PERSON u PERSON ) against D.T. , the driver who had allegedly caused the accident .

On DATE the applicants and their CARDINAL children lodged a civil action for damages in ORG against the insurance company ORG , with which D.T. was insured . Since the criminal proceedings were pending , ORG on DATE stayed the civil proceedings until the judgment in the criminal proceedings became final .

In a judgment of DATE ORG found D.T. guilty of causing a road traffic accident and the death of the applicants’ son . However , in a judgment of DATE ORG ( PERSON ) , acting as the appeal court , terminated the proceedings against D.T. owing to the expiry of the statutory limitation period . It held that since no procedural steps had been taken in the proceedings for DATE , that is , DATE and DATE , the prosecution of the offence in question had become timebarred on DATE , under LAW .

On DATE ORG granted the applicants’ civil claim for damages . The relevant part of the judgment reads as follows :

“ Under section CARDINAL(CARDINAL ) of LAW a claim for damages becomes statute - barred DATE after the injured party learned about the damage and the identity of the person who caused it ( subjective time - limit ) , or DATE after the damage occurred ( objective time - limit ) .

In the present case the injured party learned about the damage on DATE the road traffic accident in question occurred , when their son and brother died , and the threeyear limitation period started to run on DATE , DATE . The claimants brought their civil action on DATE , that is to say , after the limitation period prescribed under section CARDINAL of LAW had expired .

However , section CARDINAL of LAW provides that where the damage was caused by a criminal offence , the statutory limitation period for seeking damages expires at the same time as the statutory limitation period for the criminal prosecution , where the latter period is longer .

Criminal case file no . ... shows that the damage in question was the result of a criminal offence , although these proceedings did not end in a final conviction . However , the outcome of the proceedings undoubtedly shows that the damage was the result of a criminal offence . The institution of criminal proceedings interrupts the running of the limitation period for seeking compensation for damage caused by a criminal offence . In the case at issue the statutory limitation period in respect of the criminal offence under LAW subparagraph ( CARDINAL ) in conjunction with subparagraphs ( CARDINAL ) and ( CARDINAL ) of LAW is DATE ; hence , the same statutory limitation period is to be applied in respect of the claim for damages in connection with that offence .

The civil action in issue was brought on DATE , that is , before the expiry of the statutory limitation period prescribed in respect of the criminal prosecution , which means that the action was lodged before the expiry of the statutory limitation period under section ORG ) of LAW . ”

On DATE ORG , acting as the court of appeal , reversed the first - instance judgment . The relevant part of the judgment reads as follows :

“ ... the statutory limitation period in respect of a claim for compensation for damage caused by a criminal offence is to be assessed according to section CARDINAL of LAW only where the existence of a criminal offence and the perpetrator ’s responsibility have been established in a final judgment on conviction .

Only in exceptional circumstances may a civil court assess , as a preliminary issue , whether the damage was caused by a criminal offence , namely where , owing to certain procedural requirements , it has not been possible to conduct criminal proceedings against the perpetrator ( for example owing to the latter ’s death ) ; that is not the case here .

It is clear from the above that in the case under consideration , the provision to be applied is not section CARDINAL of LAW but rather section CARDINAL of that Act . ”

On an unspecified date in DATE the applicants lodged an appeal on points of law against that judgment with ORG ( PERSON ) , complaining that ORG had misinterpreted the relevant law concerning the application of the statutory limitation period .

On DATE ORG dismissed the ORG appeal on points of law . The relevant part of the decision reads as follows :

“ The longer statutory limitation period in respect of a claim for compensation for damage , under LAW of LAW , is applicable if the damage was caused by a criminal offence . The statutory limitation period is to be assessed according to that provision only where the existence of a criminal offence and the perpetrator ’s responsibility have been established by a final conviction . In the present case the criminal responsibility of the perpetrator ... has not been established by a final judgment of the criminal court . A civil court may only exceptionally assess whether the damage was caused by a criminal offence , in order to establish the applicable statutory limitation period . It can , in the course of the civil proceedings , deal with that issue only where , owing to certain procedural requirements , it has not been possible to conduct criminal proceedings against the perpetrator . In the present case , however , criminal proceedings were conducted and terminated by a secondinstance judgment dismissing the charges [ on procedural grounds ] . ”

The applicants lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) on DATE , arguing that the lower courts had misinterpreted the rules on application of the statutory limitation period .

On DATE ORG dismissed the applicants’ constitutional complaint , endorsing the arguments of the lower courts . This decision was served on the applicants’ counsel on DATE .

The relevant provisions of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL ) , as then in force , read as follows :

“ ( CARDINAL ) The right to claim fulfilment of an obligation shall cease when the statutory limitation period has expired .

( CARDINAL ) The statute of limitations [ bars a right to claim ] when the statutory prescribed period in which a creditor could have claimed fulfilment of an obligation has expired .

“ ( CARDINAL ) A claim for damages shall become statute - barred DATE after the injured party learned about the damage and the identity of the person who caused it .

( CARDINAL ) In any event that claim shall become statute - barred DATE after the damage occurred .

“ ( CARDINAL ) Where the damage was the result of a criminal offence and the statutory limitation period for criminal prosecution is longer , the claim for damages against the person responsible becomes statute - barred at the same time as the criminal prosecution .

( CARDINAL ) The interruption of the statutory limitation period in respect of criminal prosecution entails the interruption of the statutory limitation period in respect of a claim for damages .

“ The statutory limitation period is interrupted by the lodging of a civil action or any other action by a creditor against a debtor , before a court or other competent body , which is brought in order to secure or enforce the creditor ’s claim . ”

( CARDINAL ) Where the statutory limitation period has been interrupted by the lodging of a civil action or other request ... it shall start to run again after the termination of the proceedings .

The relevant parts of LAW ( PERSON , ORG no . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL DATE , CARDINAL/CARDINAL ) provide :

“ ( CARDINAL ) On account of the statute of limitations , the criminal legislation of GPE may not be applied after the period determined by this LAW has elapsed . The period is calculated from the time the offence was committed , sentence was pronounced or another criminal sanction was ordered .

“ ( CARDINAL ) Criminal prosecutions for the purposes of applying the criminal legislation of GPE , ... , may not be instituted after expiry of the following periods , calculated from the time the offence was committed :

- DATE if the case concerns a criminal offence punishable by DATE imprisonment ,

( CARDINAL ) The limitation period shall start to run from the date on which the offence was committed .

( CARDINAL ) The statutory limitation period shall be interrupted each time a procedural step is taken concerning the prosecution of the offence .

( CARDINAL ) The statutory limitation period shall start to run again after each interruption .

( CARDINAL ) Criminal prosecutions shall in all cases become time - barred after expiry of the double statutory limitation period . ”

“ ( CARDINAL ) FAC users who , by violating the regulations on traffic safety , endanger other road users in such a manner that they cause an accident in which another sustains serious bodily injury or extensive material damage shall be punished by a term of imprisonment of DATE .

( CARDINAL ) NORP If the offence referred to in paragraph CARDINAL of this Article is committed by negligence , the perpetrator shall be punished by a fine or by a term of imprisonment not exceeding three years .

( CARDINAL ) If the offence referred to in paragraph CARDINAL of this Article results in the death of one or more persons , the perpetrator shall be punished by a term of imprisonment of DATE . ”

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL ) provide :

“ ( CARDINAL ) A claim for compensation for damage caused by a criminal offence shall be examined in the criminal proceedings where so requested by authorised persons , provided that this does not cause significant delays in the proceedings .

“ A claim for compensation in criminal proceedings may be lodged by persons entitled to lodge such a claim in civil proceedings . ”

“ Persons entitled to lodge a claim for compensation ( Article CARDINAL ) may , until the end of the trial , withdraw their claim in the criminal proceedings and pursue it in the civil proceedings . ... “

“ ( CARDINAL ) The court can , by means of a judgment , dismiss the charges , acquit the accused or find him or her guilty . ”

“ The court shall issue a judgment dismissing the charges :

( CARDINAL ) if the accused has been exempted from prosecution by an amnesty or pardon , or if the statutory limitation period has expired , or if other circumstances barring prosecution exist . ”

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

“ If it is necessary for a court , in order to make its decision , to first settle an issue of the existence of a right or legal relationship , and no decision on this issue has yet been adopted by a court or other competent body ( preliminary issue ) , the court may settle the issue itself , unless otherwise provided for under special rules .

The court ’s decision on a preliminary issue shall have legal effect only in the proceedings in which the issue in question was settled .

In civil proceedings , where an issue arises in relation to a criminal offence and the perpetrator ’s criminal liability , the court shall be bound by the final judgment of the criminal court by which the accused was found guilty . ”

In its judgment no . DATE of DATE , ORG held that if a civil action for damages had been lodged after the criminal prosecution had become time - barred , the longer statutory limitation period under section CARDINAL of LAW could not be applied . The relevant part reads :

“ Under section CARDINAL(CARDINAL ) of LAW a claim for compensation for damage caused by a criminal offence is time - barred when the statutory limitation period for the criminal prosecution expires . The criminal prosecution of the third defendant undoubtedly became time - barred [ in the course of ] the criminal proceedings against him in case no . ... , in which the charges against him were dismissed , because the prosecution had become time - barred by a final judgment of CARDINAL DATE , in other words , before the civil action in these civil proceedings was lodged ( on DATE ) . Therefore , the claim [ for damages ] also became time - barred on that date . ”

ORG , in its decision no . Rev-CARDINAL/CARDINAL - CARDINAL of DATE , examined the possibility for a court in civil proceedings to assess the statutory limitation period under LAW of LAW if criminal liability had not been established by a final criminal court judgment . The relevant part of the decision reads as follows :

“ The conclusion of the lower courts that LAW is applicable only if the criminal offence has been established by a final judgment of the criminal court is incorrect . This is because , according to the well - established case - law , if damage has been caused by a criminal offence but no criminal proceedings have been instituted or concluded against the perpetrator because of his or death or mental illness , or the offence at issue has been exempted from prosecution by a pardon or amnesty , or if there exist some other circumstances preventing criminal responsibility from being established or barring the criminal prosecution , the fact that the damage was caused by a criminal offence may , if the defendant has invoked the statute of limitations , be established ( as a preliminary issue ) in the civil proceedings .

It is also to be noted that the longer statutory limitation period under LAW of LAW is applicable not only in respect of the perpetrator of the criminal offence but also in respect of the person responsible for the damage . ”

The domestic courts of appeal , on the subject of the possibility for a civil court to apply a longer statutory limitation period under LAW of LAW , held that this could be applied only if it had been established by a final judgment of the criminal court that the damage had been caused as the result of a criminal offence .

The relevant part of the appeal decision of ORG ( PERSON u GPE ) of DATE ( no . Gž-CARDINAL/CARDINAL ) DATE reads as follows :

“ ... The statutory limitation period under LAW of LAW , as a longer limitation period , can be applied only if it has been established , by a judgment of a criminal court , that the damage was caused by a criminal offence . This limitation period can not be applied if the criminal proceedings were terminated by a decision without a finding of guilt in respect of the person responsible . However , there is some doubt as to whether the civil court is allowed to establish whether the damage was caused by a criminal offence .

The civil court is allowed to do so only if there existed some circumstances barring the criminal prosecution , with the result that no criminal proceedings could be conducted against the perpetrator . Only then , in order to assess the statutory limitation period in respect of damage caused by a criminal offence , may the civil court itself establish whether the damage was caused by acts constituting a criminal offence . ”

The same approach was followed in the appeal judgment of ORG PERSON ) of DATE ( no . GžCARDINAL/CARDINAL - CARDINAL ) , concerning a case where the alleged perpetrator of the offence had died during the criminal proceedings .


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

The NORP Government ( “ the Government ” ) were represented by their Agent , Mr J. GPE , succeeded by Ms J. Chrzanowska , of ORG .

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

The applicant is married and has CARDINAL children . Prior to his application for an EWK pension he had been employed until DATE .

On DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an earlyretirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called “ EWK ” pension .

Along with his application for a pension , the applicant submitted , among other documents concerning his son ’s health , a medical certificate issued by PERSON , a urologist , which had been issued on DATE . The certificate also bore a stamp of the urology centre in GPE ( Poradnia urologiczna Przychodni Specjalistycznej CARDINAL PERSON w GPE ) ( “ the Centre ” ) and stated that the child ( born in DATE ) suffered from neurogenic bladder disorder ( dysfunkcja neurogenna pęcherza moczowego ) and was in need of the parent ’s constant care .

On DATE ORG ( “ the FAC ” ) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of MONEY ( FAC ) per month .

ORG initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision . The applicant resigned from his job where he had been working since DATE . On DATE , the payment of the pension was resumed .

On DATE ORG asked the ORG to provide medical documentation concerning the applicant ’s son . In reply , the FAC informed it that the child had never been registered there as a patient . However , the relevant medical documentation was provided by CARDINAL private medical establishments .

On an unknown date ORG requested ORG doctor ( PERSON ) to specify whether the applicant ’s son required the permanent care of a parent .

On DATE the doctor stated , on the basis of the medical records provided to the ORG , that the child could not be considered as ever having required such care .

On DATE ORG simultaneously issued CARDINAL decisions in respect of the applicant . By virtue of the first decision , the payment of the applicant ’s pension was discontinued with immediate effect . By virtue of the second decision , ORG reopened the proceedings , revoked the initial decision granting a pension and eventually refused to award the applicant the right to an early - retirement pension under the scheme provided for by the ORG ’s Ordinance of CARDINAL DATE on the right to early retirement of employees raising children who require permanent care ( ORG PERSON . DATE w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki ) ( “ the DATE LAW ) .

The applicant appealed against these decisions . He submitted that he should receive the benefit because his child required constant care , as confirmed by the medical certificate attached to the applicant ’s original application for a pension . Moreover , the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights .

On DATE ORG ( Sąd ORG ) dismissed the appeal . During the proceedings , the applicant ’s son was examined by specialist urologists on CARDINAL occasions . The experts found that he suffered from a minor phimosis and nocturnal enuresis . In their view , the medical documentation did not contain any evidence that the child had ever suffered from , or had been treated for , the diseases as diagnosed by PERSON They stated that those particular disorders could not be diagnosed as such without carrying out a series of prior comprehensive examinations . The child ’s medical records did not mention any of such examinations .

ORG held that the applicant ’s child did not require his father ’s permanent care since his state of health did not significantly impair his body functions . The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the DATE Ordinance as he did not satisfy the requirement of necessary permanent care .

The applicant appealed against the first - instance judgment .

On DATE ORG ( ORG ) dismissed the appeal .

On DATE ORG ( ORG ) refused to entertain the cassation appeal lodged by the applicant .

In DATE the ORG filed a bill of indictment against ORG , a doctor from the specialist urology centre in LOC Poradnia urologiczna Przychodni Specjalistycznej CARDINAL PERSON w GPE ) ( “ FAC ) . He was charged with issuing CARDINAL fraudulent certificates confirming that CARDINAL persons ( including the applicant ’s son ) had been treated in the LOC .

The applicant was questioned as a witness in the proceedings .

On DATE , the doctor pleaded guilty to the charges .

On DATE the ORG discontinued the proceedings against PERSON on the ground that the act committed was of minor significance ( “ wypadek mniejszej wagi ” ) . It further ordered him to pay a fine of PLN MONEY .

Following the social security proceedings the applicant was not ordered to return his early - retirement benefits paid by ORG , despite the revocation of his right to the early - retirement pension .

NORP The applicant submitted , in general , that after the revocation of the EWK pension his financial situation had been difficult .

The Government submitted that the applicant owned a farm ( CARDINAL.CARDINAL hectares ) which was a source of income for him and his family . In addition , the applicant ’s wife had been employed since DATE .

The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of GPE GPE , no . CARDINAL , § § ORG , DATE , and PERSON v. GPE , no . CARDINAL , § § ORG , DATE ) .